‘Appointed for Life, Not for Eternity.’ Dead Judge’s Vote Shouldn’t Have Counted, Supreme Court Rules

February 25, 2019, 4:55 PM UTC

The U.S. Supreme Court said judges “are appointed for life, not for eternity,” in setting aside a pay-discrimination ruling written by a jurist who died a week and a half before the decision was issued.

The unsigned opinion said a federal appeals court was wrong to count the vote of the late Judge Stephen Reinhardt in a ruling that let a female math consultant sue a California school official.

In letting the case go forward, the 11-judge appellate panel ruled unanimously but splintered in its reasoning. Reinhardt’s opinion said employers can’t pay female workers less than their male counterparts just because the women earned lower wages in their previous jobs.

Five fellow judges joined Reinhardt’s opinion, making it the appeals court’s controlling reasoning by a single vote.

“The upshot is that Judge Reinhardt’s vote made a difference,” the Supreme Court wrote. The high court’s order was issued without published dissent.

The appeals court ruling, issued April 9, 2018, contained a footnote that said the judges voted and finished their opinions before Reinhardt died more than a week earlier, on March 29.

The lawsuit turned on the U.S. Equal Pay Act, which permits pay disparities if they are based on a “factor other than sex.”

Fresno County Schools Superintendent Jim Yovino says those words leave room for policies that link pay to prior salary. The county’s policy is to pay new employees 5 percent more than they received in their previous job, an approach Yovino says is gender-neutral.

The math consultant, Aileen Rizo, was hired in 2009 at a starting salary of $62,133. She says she learned in a lunchroom conversation three years later that her three male colleagues all started at salaries more than $10,000 higher even though they do the same job.

In his appeal, Yovino contended Reinhardt’s vote shouldn’t have been counted, though the school official acknowledged the result probably won’t change without the late judge.

The case is Yovino v. Rizo, 18-272.