United States Circuit Judge Stephen Reinhardt died suddenly on March 29, 2018.
Since that time, he has taken part in 6 three judge panel decisions and AUTHORED an en banc decision.
This sort of thing has gone on for years on all 13 of the Courts of Appeals, but it has gotten out of hand lately, particularly on the Ninth Circuit.
On the Supreme Court, dead is dead. For example, if a decision was scheduled for release on June 25, (assuming a 5 to 4 split) and any of the Justices died suddenly that morning before the decision was released, the decision and all proceedings would have been vacated and the case would have gone back to the beginning. Anything that Scalia was involved in was immediately vacated upon his death.
However, on the Courts of Appeals, a Judge merely needs to state that his colleague concurred in the decision prior to his death and that is sufficient to issue a decision.
But given the well reasoned editorial at National Review linked to above, we should not accept this.
Congress should pass a statute that requires proceedings be vacated, should the deceased Judge have provided the deciding vote.
It would take someone adversely affected by these decisions after death, to bring this to a different federal court? or to the supreme court? Otherwise if no one challenges the decision, the decision stands. I think they call that Stare Decisis__.
In otherwords, if there is no one willing to say this isn’t right, since the ninth has done this several times already…the decision stands based on other decisions standing. However, since the Supreme court treats this differently, someone could take the higher courts ruling on this and say this is not correct and ask a federal court of appeals to decide this could he or she not?
They have only one real option here and that is objecting on that basis to the United States Supreme Court. However, the Supreme Court has not responded to such objections in the past.
Also, the United States Judicial Conference has not seemed inclined to change its rules to stop the practice.
So in all reality, Congress is the only resort in this situation.
