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Who You Gonna Call? SCOTUS

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The U.S. Supreme Court this morning busted the Ninth Circuit's practice of decision by ghost judges.

On the last business day of 2017, the Ninth Circuit counted the vote of a recently deceased judge who had concurred in an opinion but then died before it became final. As noted in this post, Judge Reinhardt announced a 2-1 decision "concurred in" by Judge Pregerson, who had died the month before. Judge Reinhardt himself did not have long to live.

Today's case of Yovino v. Rizo was a civil case re-heard in the Ninth Circuit by a pseudo-en-banc 11-judge panel. Although all 11 concurred in the judgment, only 5 others joined Judge Reinhardt's reasoning, and when the court goes en banc it is the precedent set by the reasoning that matters most, not merely who wins the case. Even though the vote was 5-5 among the judges living on the date of announcement, the Ninth said the late Judge Reinhardt's opinion was a majority opinion.

The Supreme Court summarily reversed, disapproving this practice.

When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court's decision at the time it was rendered.
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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.
Right, but then there is this:

With the exception of one recent decision issued by the Ninth Circuit after Judge Reinhardt's death but subsequently withdrawn, see supra, at 1 n., we are aware of no cases in which a court of appeals panel has purported to issue a binding decision that was joined at the time of release by less than a quorum of the judges who were alive at that time.
Really? No one told SCOTUS about Hernandez v. Chappell, described above? The Ninth granted rehearing in that case (CJLF's brief supporting rehearing is here), and the new panel correctly decided it. See this post. But I am surprised it wasn't mentioned in the briefing in this case.

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This is outrageous and another example of conservative judges ignoring precedent. This country has a long tradition of dead Democrats voting.

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