Judge Dies After He Rules But Before Court Issues Decision: Is His Ruling Valid?

In a stunning development this morning, the Supreme Court answered “no.” And it’s a big deal.

On a 5-4 vote, the Ninth Circuit Court of Appeals ruled that a California teacher could pursue a wage bias claim. A California math specialist sued for sex discrimination, alleging that employer discriminated by requiring the teacher to disclose her salary history before hiring her. The Ninth Circuit, in this 5-4 vote, created a new precedent: Under the Equal Pay Act, a salary history question is  discriminatory (women usually have a less favorable salary history than men).

Judge Stephen Reinhardt concluded that such pay-setting policies violate the act because they can perpetuate sex-based pay gaps when women change jobs.

This morning, the U.S. Supreme Court said in a terse ruling that the Ninth Circuit should not have released the opinion because the judge who wrote it died before the decision was released. 

The math consultant, Aileen Rizo, was hired in 2009 at a starting salary of $62,133. She says she learned in a lunchroom conversation three years later that her three male colleagues all started at salaries more than $10,000 higher even though they do the same job.

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Okay, Supreme Court. Where are you going to draw this line? 

Suppose a judge is temporarily disabled from the time of deciding and issuing a ruling—for example, Justice Ginsburg during cancer treatment? Valid or invalid ruling? 

Suppose a judge retires from the time of deciding and issuing a ruling? Valid or invalid ruling? 

Suppose the judge is permanently disabled in the form of a stroke from the time of ruling and issuing a ruling? Valid or invalid?

Suppose someone kills a Supreme Court justice, thought to be the swing vote in a key case, to also kill the ruling? Valid or invalid ruling?

The idea that a judge must be alive the day that the clerk of the court formally posts the ruling is, in my opinion, wrong.

And while we’re on this topic, does the ruling imply that people who die after they vote but before an elected official is sworn in have their votes invalidated?

The Court said today that said judges “are appointed for life, not for eternity.” That is a dramatic and embarrassing overstatement of what happened in this case.