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...