Link to per curiam decision in which the Supreme Court decides that Judges can no longer rule from the grave.
(Note to Moderators: As a work of the United States Government, the following quoted material is in the public domain. Attribution is given to the United States Supreme Court.)
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.
We therefore grant the petition for certiorari, vacate the judgment of the United States Court of Appeals for the Ninth Circuit, and remand the case for further proceedings consistent with this opinion.
It is so ordered
I had mentioned this in threads on the old forum. The Ninth Circuit was the worst offender, but they were not by any means the only offender. On the Supreme Court, dead has always been dead. When Scalia died, anything he had participated in was thrown out immediately and redone by living Justices.
The rule for all Courts of Appeals is now this. A decision or opinion is not final until officially filed and released to the public by the court. If a Judge dies 9 days or 9 minutes before that occurs, the decision is null and void and must be redone.
The Supreme Court needed to take this step and end this practice.
Thomas went like 10 years without asking a single question, or even speaking for that matter, during oral argument. He finally asked a question a few years ago and everybody in the room almost fainted. I do not think this makes him a “lazy” judge, per se. He just prefers to rely solely on written briefs to make his decisions.
The majority of the legal arguments are on paper, and do not take place in the courtroom. Oral arguments mainly exist to give the Justices an opportunity to ask questions.
When Scalia died, everything he was involved in had to be redone. Same with Rehnquist and every other Justice who died in active status.
The potential problem which has developed on several occasions at the Supreme Court is not dead justices. It is Justices who have stayed on past their mental expiration date. Justices Marshall and Brennan where the most recent examples, both staying about two full terms past when they should have left. Justice Douglas had a stroke but refused to resign for almost a year even though he was greatly incapacitated and had a major loss of his mental faculties.
Chief Justice Burger postponed consideration of all cases where Justice Douglas would have provided the deciding vote until they were finally able to badger Douglas into retiring.
While the Judicial Disabilities Act allows for the forcible retirement (on full salary) of disabled lower court judges, that act does NOT apply to Supreme Court Justices. Only death, their own voluntary retirement or impeachment and conviction can remove them from the Supreme Court.
