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Sunday, February 14, 2016

Can Dead Justices Vote?

The stunning news of Justice Scalia's passing has understandably (if, perhaps, a bit too quickly) provoked speculation about the fate of cases from this Term (especially those already argued--and, thus, voted upon) in which his vote was necessary to a majority... As Tom Goldstein noted at SCOTUSblog, we could see a bunch of orders dismissing such cases by an equally divided Court. We could also see orders setting some of these cases for reargument next Term (which is the far-more-common historical practice in cases in which the 4-4 division may only be temporary). Or we could see some combination of both. We could also see efforts by the Court to find narrower grounds in some of these cases that might command a Scalia-less majority (e.g., relying on procedural vehicles to avoid the merits). 

Whatever happens, the assumption necessarily uniting all of these analyses is that Justice Scalia's votes in all of these cases became void upon his death--i.e., that, where the decision has not yet been handed down, it doesn't matter whether his vote had already been cast (or even memorialized in a draft majority or dissenting opinion), because it was necessarily tentative up until the moment that the Court's judgment is handed down. That is certainly the practice in the Courts of Appeals (where there is far more precedent for such morbid matters), where federal law expressly outlines the powers of a two-judge panel to proceed without a third judge--and where each circuit's rules require the appointment of a new panel member in any case in which the remaining judges are evenly divided.

And there is every reason to believe that the same should hold for the Supreme Court--that the Court cannot hand down a ruling going forward based upon a decisive vote by Justice Scalia. But at least where Justice Scalia's vote is not dispositive, there's at least one equivocal precedent for noting a late colleague's views: Justice Frankfurter's dissent in D.A. Schulte, Inc. v. Gangi, 328 U.S. 108 (1946), which closes with the notation that “The late Chief Justice participated in the hearing and disposition of this case and had joined in this dissent.” By way of context, Gangi was decided on April 29, 1946, just one week after Chief Justice Stone had died from a cerebral hemorrhage that he suffered while reading his dissent in Girouard v. United States (the opinions in Gangi may therefore have already been finalized prior to Chief Justice Stone's passing). And even counting Chief Justice Stone's vote, the result was still 5-3 instead of 5-2 (with Justice Jackson, still at Nuremberg, recused). Perhaps even more curiously, Frankfurter's notation does not appear in the U.S. Reports, but does appear in the Supreme Court Reporter (and, thus, on Westlaw), both of which include a notation (missing from the U.S. Reports) that the dissenting opinion was amended on June 10, 1946 (six weeks after it was filed). 

It's quite possible that the reason for this discrepancy is well documented in Justice Frankfurter's papers--and on my list of things to check the next time I'm at the Library of Congress's Manuscript Division. But given that the U.S. Reports are published after the Supreme Court Reporter, I have to wonder, at least tentatively, if Justice Frankfurter (either on his own or at some of his colleagues' suggestion) eventually thought better of such an awkward notation...

Posted by Steve Vladeck on February 14, 2016 at 04:26 AM in Steve Vladeck | Permalink


If Scalia was part of a 5-4 majority and the vote was in and was off to the printers, it counts.

Posted by: D J | Feb 15, 2016 8:21:16 PM

Rick Hasen in his new book says that Justice Stevens used so much of Souter's (who had by then retired from the Court) unpublished Citizens United dissent that Stevens wanted to drop a footnote thanking him. Unspecified "justices" dissuaded him.

Posted by: Joe | Feb 15, 2016 7:40:27 PM

In 2000, the Fourth Circuit had an en banc case where the vote was 7-to-6, but Judge Ervin died before the opinion could issue. So the court issued a per curiam affirmance. But the decision included a note that "Chief Judge Wilkinson, Judge Niemeyer, Judge Luttig, Judge Williams, and Judge Michael continue to concur in what Judge Ervin wrote," and they included his (draft) opinion. Somehow I doubt the Supreme Court will give us any unfinished drafts from Justice Scalia.

The Fourth Circuit opinion, United States v. Walton: http://law.justia.com/cases/federal/appellate-courts/F3/207/694/545134/

Posted by: Milbarge | Feb 15, 2016 4:34:42 PM

It happened with Abe Fortas' sudden mid-term resignation in May 1969. One of the important cases this affected was Brandenburg v. Ohio. Originally assigned to Fortas, it was reassigned to William Brennan (although published as per curiam), who tweaked Fortas' language to require that speech be likely to incite imminent lawless action.

Posted by: Howard Wasserman | Feb 15, 2016 4:27:36 PM

My guess would be that the opinion would be issued per curium, but I'm not aware of any time it happened.

Posted by: Brad | Feb 15, 2016 3:57:07 PM

There's another, related question that I have in my mind: Can dead justices author opinions? It seems plausible that there are cases ready to be announced when the court returns next week—all the writing is complete, they're ready to go to the printers—in which either Justice Scalia wrote for a 6-3 majority or better, or in which he wrote a dissent. In those cases, his death doesn't change the result, and there's ample precedent for the Chief Justice announcing the opinion of an absent colleague. Might Justice Scalia make a posthumous appearance in the reports?

Posted by: Simon | Feb 15, 2016 11:50:36 AM

Justice Story did something similar: "In this opinion I have the consolation to know that I had the entire concurrence, upon the same grounds, of that great constitutional jurist, the late Mr. Chief Justice Marshall. Having heard the former arguments, his deliberate opinion was, that the act of New York was unconstitutional . . . ." New York v. Miln, 36 U.S. 102, 161 (1837) (Story, J., dissenting).

Posted by: Daniel Rice | Feb 14, 2016 7:46:47 AM

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