The U.S. Supreme Court recently held that a federal court could not count the vote of a judge who died right before the decision was issued. As the court aptly pointed out, judges “are appointed for life, not for eternity.” In overturning the lower court’s decision, the justices overturned the Ninth Circuit Court of Appeals’ precedential opinion interpreting the Equal Pay Act.
The case, Yovino v. Rizo, is important for two reasons. The Equal Pay Act allows pay disparities if they are based on a “factor other than sex.” However, the federal courts have failed to reach a consensus regrading whether prior salary falls under that definition. The Supreme Court could have definitively answered the question; however, it concluded that the Ninth Circuit’s decision was improperly decided.
Pay Disparities and the Equal Pay Act
Aileen Rizo, an employee of the Fresno County Office of Education, brought suit against the superintendent of schools, alleging that the county was violating the Equal Pay Act of 1963 because her starting salary was unfairly based on what she had earned at her prior job. After the District Court refused to dismiss the case, the Ninth Circuit granted the county’s appeal.
In an opinion authored by Judge Stephen Reinhardt and issued 11 days after his death, the Ninth Circuit upheld the Equal Pay Act claim. It held “prior salary alone or in combination with other factors cannot justify a wage differential.” In his opinion, Reinhardt wrote that it would be “inconceivable” that the Equal Pay Act would permit “disparities that Congress declared are not only related to sex but caused by sex.”
The Ninth Circuit’s decision was filed and entered on the court’s docket on April 9, 2018. A footnote at the beginning of the opinion stated: “Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”
By counting Reinhardt’s vote, the court deemed Reinhardt’s opinion to be a majority opinion. Accordingly, it constituted a binding precedent that all future Ninth Circuit panels must follow. Without Reinhardt’s vote, the opinion attributed to him would have been approved by only five of the 10 members of the en banc panel.
Deceased Judges Can’t Vote
The Ninth Circuit’s decision was widely heralded as a significant victory for employees and the equal pay movement. However, the Supreme Court struck it down on a technicality.
In a per curiam opinion, the court held that the Ninth Circuit’s decision must be overturned because Reinhardt died shortly before the decision was formally issued. As explained by the court:
Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.
In reaching its decision, SCOTUS rejected the Ninth Circuit’s rationale that the votes and opinions in the en banc case were “inalterably fixed” at least 12 days prior to the date on which the decision was “filed,” entered on the docket and released to the public.
“As for judicial practice, we are not aware of any rule or decision of the Ninth Circuit that renders judges’ votes and opinions immutable at some point in time prior to their public release,” the court’s per curiam opinion stated. “And it is generally understood that a judge may change his or her position up to the very moment when a decision is released.”
The Supreme Court remanded the case for further proceedings consistent with its opinion. It remains to be seen whether the Ninth Circuit will reach the same decision the second time around. Either way, there is a good chance the Equal Pay Act will end up back before the Supreme Court.