Judge Stephen Reinhardt of the Court of Appeals for the Ninth Circuit apparently capped his legendary career with the distinction of both published and being reversed on a decision after he passed away on March 29. The Supreme Court has ruled that the Ninth Circuit erred in allowing the opinion to be announced after Reinhardt passed. It was an astonishing and facially improper decision to publish the opinion after the death of a jurist. The Ninth Circuit was unanimously reversed — producing an increasingly rare unanimity on the Court. The per curiam ruling vacated the Ninth Circuit’s en banc ruling in Rizo v. Yovino.
The Court’s holding can be summed up in a single line: “Federal judges are appointed for life, not for eternity.”
In his decision in Rizo v. Yovino, Reinhardt affirmed the lower court’s denial of summary judgment in an Equal Pay Act case and held that prior salary cannot justify a wage differential between male and female employees. It was a fractured decision of a six judge majority with the five other judges splitting among the majority decision and three separate concurrences.
The problem is that the opinion was issue on April 9, 2018 after Reinhardt had died. The court simply added the following footnote at the start of the opinion:
“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.”
The decision of the Ninth Circuit ignored the long-standing view that a decision is not final until its release — and thus a judge could change his position in the case until publication. For that reason, the decision of Reinhardt was not filed when he died, as the Court noted:
“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. 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 decision of the Ninth Circuit to publish the opinion does not speak well of the en banc panel. It has long been understood that the death of a jurist before publication would negate his vote and any opinion. This fact that it proved inconvenient for the court should not alter the obvious need to hear the case.
Federal judges that are appointed for life and the entire judicial branch function at the pleasure of the legislative branch.
Most of the judicial branch should have been impeached long ago for usurpation of power, illicitly modifying legislation, “legislating from the bench” and failure, since 1861, “…to declare all acts contrary to the manifest tenor of the Constitution void.”
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Article 2, Section 4
The President, Vice President and all civil officers of the United States, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.
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“…courts…must…declare all acts contrary to the manifest tenor of the Constitution void.”
“[A] limited Constitution … can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing … To deny this would be to affirm … that men acting by virtue of powers may do not only what their powers do not authorize, but what they forbid.”
– Alexander Hamilton
Once again, we see how a deep arrogance thrives within an elite group – here a federal court – because it feels so protected within its bubble. But the public always notices.
“Federal judges are appointed for life, not for eternity.”
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It’s a great line. Now if we could just convince the judge’s that’s the case!
It is ironic that the process of federal district judge appointments is more political than judicial. Typically, the blessing of the home state U. S. senator in the President’s party is required as well as the support of as many other politicians as one can find. I do not recall any candidate for a federal district judge bench around here submitting support letters from other judges, state or federal. Then, once on the bench, with few exceptions, after a short time they develop federal judgeitis, which apparently is an incurable condition. And, it seems that every procedural rule, local or otherwise, is for the convenience of the court rather than the parties or the attorneys. I love the majesty of most federal courtrooms but don’t care that much for anything else.
Uh oh, something’s not right here.
Sanity seems to be creeping back into the
US Justice System.
Somebody needs to warn Mueller.
The Judge signed the opinion. Then he croaked. The opinion and judgment should stand. The Supreme Court needs to look to the Original meaning set out by the Original Framers of the Original Constitution long before any Amendments were promulgated. Right Clarence?
They did as you suggested and found it didn’t. We should see more of this including interfering with the States Rights to run their own elections. That would bring to the fore reinstatement of Recall and Term Limits as those elected are employees of the State first and foremost as delegates to the national congress and only two elected positions are federal status.
A petty matter. The real problem is systematized misfeasance on the part of appellate judges and the efforts on the part of the law professoriate to provide excuses for it. A proper solution to this is for the guilty parties to be arrested, stripped of their citizenship, and exiled
In the interim, there’s much which can be done. to attack judges. The geographic extent of the 9th circuit could be reduced to one square yard in the middle of Sunset Blvd. A new circuit could be constructed around it and staffed with real judges rather than Laurencetribe judges. Appropriations to maintain discrete federal courts could be eliminated or made contingent on the discretion of the President. The U.S. Marshal Service could be withdrawn from select federal districts. Judges could be made subject to congressional oversight and subpoena. Anything short of the use of lethal violence would be just.
I agree. But would go further. California needs to be seceded from the United States and we need to build a wall around it. The Ninth Circuit is the Nitwit Circuit.
Let me know if you run for office This.
I’d like to apply to be your campaign manager.