By: Brian Evans

The 9th Circuit Court of Appeals had ruled on a case that pertained to a female consultant named Aileen Rizo who sued the Fresno County schools for the alleged sex-based pay disparity. The school district said her salary was based on her past compensation, and the 9th Circuit Court of Appeals sided with Rizo, with Judge Stephen Reinhardt listing himself as the author of the decision. He concluded that

“prior salary alone or in combination with other factors cannot justify a wage differential between male and female employees.”

The majority opinion was finalized and all votes were cast, but the problem with the decision involved the fact that although votes had been cast at the time of Reinhardt’s death, the decision was not issued until after Judge Rinehardt’s passing

The United States Supreme Court ruled against the 9th Circuit Court of Appeals, after the radically left-leaning California based appellate court listed the late Judge Stephen Reinhardt as the author of a decision, despite his premature passing. Reinhardt was a well-known left-wing Socialist leaning Judge, who had died in March of 2018, yet the court, who has the highest turnover rate by the Supreme Court, counted his vote in their ruling.

The high court’s decision was “per curiam” meaning “for the Court.” Such decisions are not signed. There were no noted dissents. The Supreme Court said…

The 9th Circuit erred in counting him as a member of the majority,” the high court’s decision reads. “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.”

Now, after the School District appealed the case to the Supreme Court, the high court sided with the District, pointing to a 1960 precedent in which the high court vacated a ruling joined by a judge who retired before the opinion issued. Also, they pointed out how  Reinhardt’s vote was pivotal to the outcome of the case. Therefore, following his death, there was no longer a majority view within the court. The Supreme Court said…

“Without Judge Reinhardt’s vote, the opinion attributed to him would have been approved by only 5 of the 10 members of the en banc panel who were still living when the decision was filed. Although the other five living judges concurred in the judgment, they did so for different reasons. The upshot is that Judge Reinhardt’s vote made a difference.”

Now, following the Supreme Court decisions, the case will return to the 9th Circuit Court of Appeals, to be re-heard and decided, but this time without using rulings from Judges who have passed!

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