Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, March 4, 2019

Ninth Circuit Judge’s Death Allows the Supreme Court to Sidestep the Equal Pay Act and Prior Salary Questions

Last week, the Supreme Court handed down an opinion vacating and remanding a Ninth Circuit en banc decision issued on April 9, 2018 - 11 days after Judge Stephen Reinhardt’s death in March of 2018.  Judge Reinhardt, known by some as the Liberal Lion of the federal court, had written the opinion and fully participated in the case before he died, and his vote was necessary for the opinion to constitute a majority and bind the Ninth Circuit.  The Supreme Court held that “[w]hen the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge” and thus “without power to participate in the en banc court’s decision at the time it was rendered.” 

In a memorable quote—one that has been picked up by news outlets covering this case—the Court said “federal judges are appointed for life, not for eternity.”  The opinion is short and to-the-point – bordering on terse.  It does not address the substantive issues in the case and focuses purely on whether Judge Reinhart’s vote could be counted.

The substantive issues in the Ninth Circuit opinion, Rizo v. Yovino, 887 F.3d 453 (9th 2018) (en banc), revolved around the Equal Pay Act of 1963.  Reinhardt opened the en banc opinion forcefully:

“The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex. The question before us is also simple: can an employer justify a wage differential between male and female employees by relying on prior salary? Based on the text, history, and purpose of the Equal Pay Act, the answer is clear: No.” 

In light of such bold language, it's not a big leap to conclude that the “Liberal Lion’s” sudden passing allowed the Court to reverse the Ninth Circuit holding without taking a substantive position on a hot-button issue. 

If you’re interested in reading more about Judge Reinhardt’s legacy, Harvard Law Review dedicated an issue in 2018 to Judge Reinhardt and published this In Memorium:

Particularly affecting is the portion by Benjamin Sachs, law professor and former Reinhardt clerk, detailing the Rizo en banc decision overturned by the Supreme Court here.  Professor Sachs said:

“the posthumous publication of Rizo . . .  had a deep poignancy. Reading the words of this groundbreaking decision — a decision that prohibits employers from justifying salary differentials between men and women on the basis of prior salaries — felt like hearing the Judge speaking still.”

Judge Reinhardt’s words live on in this opinion, but as the Supreme Court has reminded us, his death a mere 11 days before its official issuance denied those words the force of law.

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