Today, in Yovino v. Rizo, Case No. 18-272 (Feb. 25, 2019), the United States Supreme Court addressed a Ninth Circuit en banc opinion authored by a judge, which was issued 11 days after the judge’s death. The status of the opinion, which was the majority opinion, depended upon the counting of that judge’s vote. A footnote to the Ninth Circuit’s opinion indicated that the judge participated in the case and authored the opinion – that the “majority opinion and all concurrences were final, and voting was completed by the en banc court prior to [the judge’s] death.”
The Supreme Court recognized the general principle that a judge could change his or her position up to when the opinion is issued. As such, the Court, in a per curiam opinion, held that the Ninth Circuit erred by counting the judge’s vote.
Merits briefing is available on the Supreme Court’s website, here.