Friday, March 01, 2019

Might the SCOTUS be Wrong in its Unanimous Ruling that Dead Judges Can't Judge?

by Michael C. Dorf

On Monday the Supreme Court issued a per curiam opinion in Yovino v. Rizo, reversing the Ninth Circuit en banc ruling in the case. The SCOTUS did not disagree with or even address the substance of the Ninth Circuit decision. Rather, it reversed because the lead opinion in the Ninth Circuit's 6-5 ruling was authored by Judge Stephen Reinhardt, who died 11 days before it was released.

A footnote in the Ninth Circuit 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." That wasn't good enough for the Supreme Court, however, which announced a formal rule that a judge must validly hold office at the moment an opinion is released.

The SCOTUS decision is justifiable as a bright-line rule, but, as I shall explain, the case was not quite the no-brainer that the justices imagined. As my co-blogger and friend Prof Segall tweeted on Monday, "[t]he real issue" was not, as the per curiam claimed, whether "a deceased judge [may] exercise the judicial power of the United States after his death," but (now I'm quoting Prof Segall again) "whether dead judges could vote when they were alive but before the decision formally issued, a harder question, and not for nothing but they could have slipped in a comment about this judge’s long and outstanding service."

I agree with both of Prof Segall's observations. On the second point, I share the view of my fellow former Reinhardt clerk Prof Ben Sachs, who thought the per curiam a bit too snarky given the circumstances. As a few people have observed, an objection to that (perceived) snark might explain why Justice Sotomayor concurred in the judgment but not the per curiam.

For now I want to focus on the Court's bright-line rule. As I said, I think it is justified, all things considered, but it has costs and is in some tension with no less a decision than Marbury v. Madison.

Let's begin with the costs of the Supreme Court's rule. The Ninth Circuit panel issued its ruling in April 2017. The court decided to go en banc in August of that year. The en banc decision was handed down in April 2018. Generating a new en banc panel and ruling will, at the very least, occasion months of further delay. (Because of its size, the Ninth Circuit hears even en banc cases in panels of eleven, rather than via the full court.) And that's in a case that was handled with considerable speed on the appellate docket. Even so, the original case was filed in March 2014.

If the en banc ruling is unchanged by the substitution of a different judge, the case then goes back to the district court for trial, as the initial en banc ruling simply affirms the denial of a summary judgment motion by the defendant. One might think that over the course of litigation that could last the better part of a decade, a delay of, say, an additional six months is no big deal. But one might alternatively think that the Jarndyce-like pace of American litigation renders any substantial further delay problematic.

Then there is the additional expense. Even assuming that the new en banc panel does not require new briefing, an additional oral argument will lead to a great many hours billed to the clients. It will also divert the time of the judges and court staff.

Could that cost be avoided by randomly drawing a judge to replace Judge Reinhardt on the en banc panel and having that judge simply read the briefs and review a recording or transcript of the oral argument? Justice Ginsburg is voting in cases in which she missed being on the bench in person during her recent convalescence, so one might think that course is possible here too. However, there's an important distinction. The lawyers who appeared before the SCOTUS knew that they might have needed Justice Ginsburg's vote despite her personal absence. The lawyers who argued the original en banc version of the case didn't know that anyone would substitute for Judge Reinhardt, and so they did not know to pitch their arguments accordingly.

Is that a sufficient distinction to warrant a new en banc oral argument? If the court ultimately decides not to hold a new such argument, will that decision then be subject to further satellite litigation over the proper substitution procedure in cases of this sort?

Against the costs of delay, expense, and legal uncertainty (potentially leading to further delay and expense), we might ask what are the benefits. In Yovino itself there are none.

The Supreme Court's rationale for its rule is that "a judge may change his or her position up to the very moment when a decision is released." But is there any non-zero likelihood that, had he lived, Judge Reinhardt would have changed his position after obtaining a majority vote for the outcome? This was a case under the Equal Pay Act in which the en banc panel affirmed the denial of a summary judgment motion by the employer. Anyone remotely familiar with Judge Reinhardt, his values, or even the text of the en banc opinion he wrote in this case would understand that he would not have changed his mind. Not in eleven days, not in eleven years, not ever.

Accordingly, the SCOTUS decision can only be justified, it at all, as a bright-line rule that produces net costs in particular cases--including the very one in which it is announced--but produces benefits in the long run. And, as I said above, I think the decision can be justified in those terms. However, the per curiam does not even attempt to offer such a justification.

So how can a bright-line rule be justified here? I don't think one can have a rule that a judge's post-opinion-writing death doesn't affect the outcome when the judge is someone like Judge Reinhardt with strong convictions on the issue but not when the judge is more wishy-washy. There needs to be a consistent rule for all judges. A rule that draws the line at the release of an opinion is a sensible one. And, as the per curiam notes, it's a rule that found support in a 1960 precedent holding that a judge's acceptance of senior status after a case went en banc precluded his participation in the en banc proceeding, because he was no longer an "active judge" within the meaning of the relevant statute.

But in that 1960 case, the judge actively participated in the en banc case when senior. Judge Reinhardt did not participate in this case after his death. The argument for the respondent was that the case was effectively over already when he was still alive.

The essential reason why the SCOTUS was nonetheless right is that no other bright line is as administrable as the date of release. But that is not to say that no other bright line is possible.

Consider Marbury v. Madison. In the first part of the opinion, Chief Justice John Marshall rejects the Jefferson administration's argument that Marbury's commission as a justice of the peace was ineffective because never delivered. Not so, says Marshall; once President Adams signed and sealed the commission, it became effective; the additional formality of delivery was not necessary.

Likewise here, one could say that once Judge Reinhardt and the other judges participating in the Ninth Circuit en banc finalized their votes, it was effective, with official release a mere formality.

Now, there's an obvious objection to this line of reasoning: Because the public would not know of the decision until it was released, a judge could in theory change his or her mind, and therefore the ruling isn't really final until released.

That's a reasonable objection, but it's also an objection to Marshall's reasoning in Marbury. Suppose that seconds after Adams signed and sealed Marbury's commission, an aide told the lame-duck president that he had just learned that Marbury had been caught trying to bribe a constable or, perhaps worse, had shifted his allegiance from the Federalist to the Democratic-Republican Party. Adams quickly tears up the commission and, for good measure, tosses it on the fire. In this case Marbury would not be entitled to be a justice of the peace; yet we would not say (or at least no one has thus far said) that the remote possibility that Adams might have changed his mind between signing and sealing the commission and delivering it undercuts the effectiveness of signing and sealing in a case in which there is no change of heart.

Accordingly, the obvious objection to the position taken by the Ninth Circuit en banc--that release can't be an unnecessary formality because that would preclude a change of heart--could be said to prove too much; it proves Marshall was wrong in Marbury too.

For my money, the best answer here probably is to say that Marshall was wrong about that point, which was, after all, only dicta in Marbury, as the Court ultimately held that it was without jurisdiction. But the fact that the per curiam's reasoning undercuts such a central landmark in SCOTUS history, even if on a secondary point, shows that perhaps the case should have been harder than the justices (excepting Sotomayor) thought. And that's to say nothing of the snark.


Joe said...

Interesting tidbit on the Marbury [which I'm sure Prof. Segall has a pithy tweet about too] ... so after someone is confirmed, let's say a judge, POTUS can still block the commission? Did Trump know that regarding Kavanaugh?

I'm not sure the two things necessarily are the same thing.

Michael C. Dorf said...

Marshall says in his opinion that the signing and sealing of the commission entitled Marbury to the office, but an argument can be made that under the text of the Constitution, Senate confirmation is the final required act. I don't know of any case in which a president nominated, the Senate confirmed, and then the president deliberately withheld his signature; thus, I don't think the proposition has been tested.

Michael C. Dorf said...

Further to the comment, Josh Blackman had a very informative post on the power of Congress to structure the procedure for finalizing appointments post-Senate-confirmation:

Salemicus said...

1. The Supreme Court should have shown more respect for Reinhardt's decades of service as a judge.
2. Reinhardt was such an outcome driven hack that no argument could persuade him to switch his vote to support an employer in an Equal Pay case.

You can't have it both ways.

Joe said...

Justice Scalia is the fifth vote in a Second Amendment case and writes the opinion strongly defending the outcome. But, it doesn't come down before he died. I don't think he is some "outcome driven hack" if it is basically very very unlikely he is suddenly going to change his mind the few days involved.

We might imagine some extreme case but that seems like a de minimis concern that isn't shown here. But, it might show the value of an absolute rule.

And, even if he was on that specific matter, that alone would not mean someone should not honor his decades of service.

Salemicus said...

What a strange example. The late Justice Scalia was well-known for his willingness to change his mind and abandon his previous opinions in the face of better argument. For example, he wrote Auer, then later came to think it mistaken - which the Supreme Court is now considering. I agree that in any given case it is unlikely that a judge will change their mind, particularly in the brief period between agreement and publication, but it does happen (NFIB v Sebelius...).

It is Prof Dorf, not me, who wrote that Reinhardt would not change his mind, not in eleven years or ever. That is a very different claim than that a change is unlikely in a few days, and is basically a statement that Reinhardt was no judge at all. Take it up with our host, not me.

You are of course right that we should judge judges by their records in totality. But Reinhardt is notorious for his frequent unanimous reversals by the Supreme Court. The only way this smackdown could be more fitting is if it had been on one of his trademark lawless AEDPA opinions.

Joe said...

Justice Scalia is also "well-known" (if more so) for having certain strongly held opinions for which it is very very unlikely he would change his mind.

Prof. Dorf said in this specific area, especially given all the factors, Judge Reinhardt was very unlikely to change his mind. And, on certain issues, let's say abortion, I would say it is unlikely Scalia would change his mind in eleven years. Or likely ever. Thirty years of strong belief tells me this. Now, again, there might be a very small chance he might. I think taking Prof. Dorf totally literally there however is a tad lame.

I appreciate you agreeing with me on the last topic. Thus, again, even if he was wrong on one topic, honoring his decades worth of service is appropriate. But, you don't like him for various reasons, so support the disrespect.

Michael C. Dorf said...

I agree with Joe's response to Salem Al-Damluji, whose own comments are much more disrespectful than the SCOTUS per curiam. Judge Reinhardt's opinion in the Watkins case is a good example of his understanding of the limits of his role. So are the examples cited in fn 12 of Prof Crespo's tribute in the Harvard Law Review. In that same issue, Justice Sotomayor makes a similar point. So do I. Here's the link:

Asher Steinberg said...

I have to say that I agree with Salem that when you put things like this, you make Reinhardt sound rather hackish, as if it's inconceivable that he would ever cast a vote for an Equal Pay Act defendant:

"This was a case under the Equal Pay Act in which the en banc panel affirmed the denial of a summary judgment motion by the employer. Anyone remotely familiar with Judge Reinhardt, his values, or even the text of the en banc opinion he wrote in this case would understand that he would not have changed his mind. Not in eleven days, not in eleven years, not ever."

Of course, I realize (or hope) that you don't think that Reinhardt automatically voted for plaintiffs in Equal Pay Act cases and must think there's something more specific about this case that makes reconsideration especially unlikely, but you would have to say a lot more than what you said, which was just that he voted against the employer in an Equal Pay Act en banc, to spell that out. As written, I got the impression that you were suggesting the Equal Pay Act, like death penalty habeas (where I believe he never voted for the state), was an area of the law where he always found a way to vote for a particular side. Which does sound hackish.

Michael C. Dorf said...

Yes, obviously, I meant it was an Equal Pay Act in which, after briefing and oral argument, Judge Reinhardt sided with the plaintiff. Only a fool or a troll would think that I meant that Judge Reinhardt would side with every plaintiff in an Equal Pay Act case or any other category of case. He routinely affirmed judgments for defendants where plaintiffs had weak cases.