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Strange development on the US Court of Appeals:

Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Altera Corporation v. Commissioner, a challenge to the Internal Revenue Service's treatment of cost-sharing arrangements for employee stock compensation. The panel split 2-1 on whether the IRS rule satisfied the requirements of the Administrative Procedure Act (APA), reversing a lower court decision concluding the IRS had failed to conduct an adequate rule-making. One of the two judges, however, has been dead for four months.

The practice certainly is novel and may, in fact, be unique. The US Supreme Court doesn't follow the practice (same source):

This happened on the Supreme Court when Justice Scalia died. Note, however, the Court did not proceed to issue any additional opinions with him participating. Opinions in cases that had not yet been issued were released with only eight judges participating (seven in the case of Fisher), even if that meant that some cases (such as Friedrichs, the precursor to Janus v. AFSMCME) were resolved 4-4.

My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal?

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    Here's a link to the published opinion. Commented Jul 25, 2018 at 20:54
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    I'm not sure if the two are exactly the same. According to the published opinion, Judge Reinhardt "formally concurred" before his death, which implies everything was done and it was just a matter of officially announcing it. Do we know if there were any cases before the SCOTUS which were ready to release (i.e. all the opinions were written and everyone had concurred or dissented) when Scalia died?
    – Bobson
    Commented Jul 25, 2018 at 21:16
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    It's not really a "dead judges written opinion" - he was obviously living when he wrote it. Almost all of our standing legal precedent is based upon opinions of judges who are now dead. I get what you're going after - he died before the judgement was officially entered, but the framing makes it seem more fraudulent than it is.
    – PoloHoleSet
    Commented Jul 25, 2018 at 22:29
  • FWIW, there is an elaborate and arcane tradition and process governing the conduct of law clerks of a deceased SCOTUS justice until a successor is appointed which was recounted in some of the news coverage of Scalia's death.
    – ohwilleke
    Commented Jul 26, 2018 at 13:03
  • Brilliant question.
    – pygosceles
    Commented Jan 17, 2023 at 19:37

2 Answers 2

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My question is this in fact unique? Have any other cases in the US federal courts been decided at the appeals or higher level based upon a dead judge's written opinion, and if so, have they then survived appeal?

This happens roughly a couple of times a year on average in the U.S. Courts of Appeal, usually when an opinion has been agreed to in principle and a final draft of the opinion has been approved, but release of the opinion is delayed, for example, to allow the dissenting opinion in the case to be completed prior to publication of the decision.

The blog "How Appealing" regularly reports this practice when it happens, although its accounts of this practice are not comprehensive.

To the best of my knowledge, no appellate court opinion has ever been reversed on appeal because a judge died prior to its publication.

For comparison's sake, in the most recent year for which statistics are available (2017) the U.S. Courts of Appeal handled 60,877 cases, so this happens in less than one in 30,000 cases (you have to combine the regional U.S. Courts of Appeal and the Federal Circuit which is reported separately for statistical purposes to get the total).

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    This happens 1 or 2 times a year!
    – K Dog
    Commented Jul 26, 2018 at 16:02
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    @KDog Yup. There are quite few judges on the bench, they start old and often serve until they die, and they are constantly churning out opinions. Honestly, I'm a little surprised it doesn't happen more often (and it may, most of the time, no one both notices and publicizes the fact).
    – ohwilleke
    Commented Jul 27, 2018 at 0:15
  • FYI as another answer notes, the question has since been addressed with a binding precedent.
    – ohwilleke
    Commented Sep 1, 2022 at 17:17
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Since this question was originally asked and answered, the Supreme Court decided Yovino v Rizo, No. 18-272 of 2019. This concerns the very same Judge Reinhardt who died during Altera Corp v Commissioner, mentioned in the question, but whereas the Ninth Circuit vacated the decision and reconstituted a panel, they did not do so in Yovino. In that case, the "majority" opinion of six judges on the eleven-judge panel was a majority only by virtue of including the late Judge Reinhardt, and so it was doubtful whether it should count as precedential. Without him, it's five judges out of ten, which doesn't amount to the threshold required to be a majority opinion.

The Supreme Court held that he should not be so counted, and so the judgment was vacated and remanded back to the Ninth Circuit for further proceedings.

The opinion of the Supreme Court includes the rationale that:

it is generally understood that a judge may change his or her position up to the very moment when a decision is released.

They also make the pithy remark:

federal judges are appointed for life, not for eternity.

The court also elaborates that "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." To be precise, there are cases (some of which are cited) where judges have died but the remaining ones were still able to come to a majority decision. What was different here was that the deceased judge caused the majority, and therefore a quorum, to be lost.

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  • "federal judges are appointed for life, not for eternity." I like that.
    – pygosceles
    Commented Jan 17, 2023 at 19:38

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