Reinhardt died March 29, 2018, but the 9th Circuit counted his vote after that. He was listed as the author of an en banc decision — one made by a majority of the full court — 11 days later.
“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed,” the opinion stated. “Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”
The court decided that was unlawful.
“That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death,” the opinion said. “But federal judges are appointed for life, not for eternity.”
Because the opinion is unsigned, lost perhaps for eternity will be the identity of the justice who penned that line. But it was not Justice Sonia Sotomayor, who noted that she “concurs in the judgment.”
The case, Yovino v. Rizo, returns to the 9th Circuit.