Dead judges deciding votes on cases

Question

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?

Answer 1

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).

Answer 2

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.