Shortly before he died, Judge Stephen Reinhardt authored an en banc opinion for the ninth circuit in Rizo v. Yovino. The decision was groundbreaking, holding that employers could not justify salary differentials between men and women on the basis of prior salaries. As the court wrote:
Unfortunately, over fifty years after the passage of the Equal Pay Act, the wage gap between men and women is not some inert historical relic of bygone assumptions and sex-based oppression. Although it may have improved since the passage of the Equal Pay Act, the gap persists today: women continue to receive lower earnings than men across industries, occupations, and education levels. . . . Allowing prior salary to justify a wage differential . . . entrench[es] in salary systems an obvious means of discrimination — the very discrimination that the Act was designed to prohibit and rectify.
In a per curium opinion released today, the Supreme Court has vacated the Rizo decision on the grounds that the ninth circuit inappropriately counted Judge Reinhardt’s vote in the case. According to the Supreme Court, because a judge can change her vote until the moment an opinion is actually released, a judge who dies before that release date cannot be counted as an active judge. Thus, the en banc vote in Rizo should have been 5-5 rather than 6-5.
This development is unfortunate from the perspective of Equal Pay Act law, given the importance of the Rizo holding. But one line in the Supreme Court’s opinion stands out for other reasons and deserves a bit of attention. The Court closes its opinion this way:
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.
I admit that this reaction may be influenced by my personal connection to the judge, but I also cannot help but think that the final sentence is a bit too cute – even snarky – for an order vacating one of the last opinions of someone who dedicated his life to judicial service.