The Supreme Court has decided to send back a ruling by the Ninth Circuit court because the majority opinion in the case was published 11 days after the death of its author, Judge Stephen Reinhardt.

In an unsigned opinion issued on Monday, the high court suggested that allowing the ruling to stand would have been akin to Judge Reinhardt ruling from beyond the grave (insert scary ghost sounds here), stating that "federal judges are appointed for life, not for eternity."

The court wrote that by counting Judge Reinhardt's vote, the Ninth Circuit "effectively allowed a deceased judge to exercise the judicial power of the United States after his death." (Spooky ghost sounds continue, obviously.)

Although the other judges stated that Judge Reinhardt "fully participated in this case," and that voting had been done and all the opinions written before he died, the court invalidated the ruling because he would have had up to the day it was published to change his mind entirely, which seems unlikely given that he wrote the majority opinion. It's hardly as if they used a Ouija board to get his final say.

Under normal circumstances, this would be an "Oh, fine, whatever" kind of ruling. However, the case he ruled on has the potential to gut the Equal Pay Act if the decision is to go the other way. Given that, it's hard not to get a sinking feeling that some of the more conservative judges are hoping for an opportunity to do just that.

Here's the gist of the case: Fresno County public school math consultant Aileen Rizo sued her school district after finding out that she made about $10,000 a year less than her male colleagues, because of a policy that based the salaries of new workers on their most recent previous salaries. The county said that this wasn't a sexism thing, because the policy is applied equally to men and women, but the court, not being stupid, realized that women were more likely to get paid less than men to begin with, so basing current salaries off of past salaries just keeps the pay discrimination train going.

It's pretty obvious, and it's also the reason why several cities and states have banned employers from even asking about salary histories.

After hearing the case, five of the 11 judges of the Ninth Circuit signed on to Judge Reinhardt's opinion, which stated in part that "Women are told they are not worth as much as men. Allowing prior salary to justify a wage differential perpetuates this message, entrenching in salary systems an obvious means of discrimination." The other five judges also found that the policy violated the Equal Pay Act as well, but signed on to different opinions.

So things should be fine, right? RIGHT? Like, it will go back to the Ninth Circuit and they'll once again agree that it is a violation of the Equal Pay Act in some way, and then we can all go back to worrying about something else horrible that's happening in the world? And even if Trump appoints a conservative judge to take Reinhardt's place, that's just one judge, and what's he gonna do?

Eh?

As Rewire reported in January, the county has been pushing for the Supreme Court to take this case from the federal courts for a while.

In August 2018 the county filed its writ of certiorari to the Supreme Court, arguing the Court should take the case because the Ninth Circuit's decision creates a split among the federal courts, specifically with the Seventh Circuit Court of Appeals, as to whether prior salary is a "factor other than sex" for purposes of the EPA.

The appeal, unsurprisingly, is backed by another appeal from the US Chamber of Commerce and The Society For Human Resource Management, both of whom really think it should continue being fine to pay people based on their prior salaries. Groups representing business interests dig this, because it helps them keep wages down across the board. Get screwed on pay at your last job? Welcome to getting screwed forever!

If the Supreme Court is invested enough in this case to invalidate Judge Reinhardt's opinion and vote, it's likely they're invested enough to take this case on themselves. Some of them anyway. Were that to happen, given how conservative the court is now, things could go very, very differently. One step forward, all the steps back.

[Rewire | Philadelphia Inquirer]

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