On February 25, 2019, the U.S. Supreme Court decided Yovino v. Rizo, holding that the federal courts may not count the vote of a judge who dies before the decision is issued, even if the judge had indicated a vote before he or she died.
Aileen Rizo claimed that her employer was violating the Equal Pay Act. A panel of the Ninth Circuit ruled in favor of the employer based on a previous Ninth-Circuit decision, but the full court then took the case en banc to reconsider that decision.
Judge Stephen Reinhardt of the Ninth Circuit died in late March 2018. On April 9, the 11-judge en banc court released an opinion that adopted a new interpretation of the Equal Pay Act. The majority opinion was authored by Judge Reinhardt and joined by only five other judges of the panel, so its status as binding precedent turned on Judge Reinhardt’s vote. The opinion stated that Judge Reinhardt’s “opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.”
The Supreme Court unanimously reversed, holding that, since “a judge may change his or her position up to the very moment when a decision is released,” a federal judge may not vote on opinions released after he or she ceases to be a member of the court.
The opinion of the court was per curiam. Justice Sotomayor concurred in the judgment.