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SCOTUS: Federal Judges Not Appointed for Eternity

By William Vogeler, Esq. on February 25, 2019 | Last updated on March 21, 2019

Before he died last year, Judge Stephen Reinhardt wrote his last opinion for the U.S. Ninth Circuit Court of Appeal.

The appeals court said that employers may not pay women less than men based on prior salaries when hiring for the same job. It was a significant and divided decision.

The U.S. Supreme Court vacated the decision, but not because of that legal issue. Apparently, dead judges can't have opinions.

Equal Pay Act

In Rizo v. Yovino, the Ninth Circuit sought to undo decades of decisions allowing employers to get around wage disparities under a catchall exception of the Equal Pay Act. That, Reinhardt said, had to stop.

"Although the Act has prohibited sex-based wage discrimination for more than fifty years, the financial exploitation of working women embodied by the gender pay gap continues to be an embarrassing reality of our economy," he wrote for the en banc panel.

According to the U.S. Supreme Court, that was not the point. The question was, if a judge votes then dies before a decision is announced, does the dead judge's vote count?

Reinhardt died on March 29, 2018, but his opinion was not announced until 11 days later. The Ninth Circuit said he "fully participated" in the case and authored the opinion.

Dead Judges Can't Vote

But a judge may change his or her position up to the moment when a decision is released, the U.S. Supreme Court said. In order for a vote to count, a judge must be actively serving on the court when a ruling is rendered.

Otherwise, they said, Reinhardt would have been able to exercise the judicial power of the United States after his death.

"Federal judges are appointed for life, not for eternity," the justices said in an unsigned opinion.

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