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Thursday, January 13, 2022

Judges Participating in Cases

Before we return to more Section Three posts, I thought I'd ask a more esoteric question.

Suppose an appellate judge is part of a panel that hears a case. Before the opinion issues, though, the judge dies or retires. Then the decision is issued without her, sometimes with a notion that she heard the case but is no longer a panel member. This makes sense, in that you could say the relevant point in time is the decision rather than the argument.

Now think about a Justice who joins the Supreme Court after the start of the Term, the way Justice Barrett did. She was not part of the decisions from the cases argued that Term before she was confirmed. But she was on the Court while those cases were pending decision and when they were decided. Why, then, could she not vote on them? She could read the briefs, of course, and Justices do vote in cases where they cannot attend the oral argument due to illness. And the Court had a vacancy, so you can't say that the reason is because the Court was at full strength until she was confirmed.

The Court's custom, at least in recent years, is that a new Justice who starts after the Term begins and fills a vacant seat does not vote on or participate in the pending cases. But why? 

Posted by Gerard Magliocca on January 13, 2022 at 01:52 PM | Permalink


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