Equal Pay Act

Major Equal Pay Act Case Vacated by Supreme Court

Benjamin Sachs

Benjamin Sachs is the Kestnbaum Professor of Labor and Industry at Harvard Law School and a leading expert in the field of labor law and labor relations. He is also faculty director of the Center for Labor and a Just Economy. Professor Sachs teaches courses in labor law, employment law, and law and social change, and his writing focuses on union organizing and unions in American politics. Prior to joining the Harvard faculty in 2008, Professor Sachs was the Joseph Goldstein Fellow at Yale Law School.  From 2002-2006, he served as Assistant General Counsel of the Service Employees International Union (SEIU) in Washington, D.C.  Professor Sachs graduated from Yale Law School in 1998, and served as a judicial law clerk to the Honorable Stephen Reinhardt of the United States Court of Appeals for the Ninth Circuit. His writing has appeared in the Harvard Law Review, the Yale Law Journal, the Columbia Law Review, the New York Times and elsewhere.  Professor Sachs received the Yale Law School teaching award in 2007 and in 2013 received the Sacks-Freund Award for Teaching Excellence at Harvard Law School.  He can be reached at [email protected].

Shortly before he died, Judge Stephen Reinhardt authored an en banc opinion for the ninth circuit in Rizo v. YovinoThe decision was groundbreaking, holding that employers could not justify salary differentials between men and women on the basis of prior salaries. As the court wrote:

Unfortunately, over fifty years after the passage of the Equal Pay Act, the wage gap between men and women is not some inert historical relic of bygone assumptions and sex-based oppression. Although it may have improved since the passage of the Equal Pay Act, the gap persists today: women continue to receive lower earnings than men across industries, occupations, and education levels. . . . Allowing prior salary to justify a wage differential . . . entrench[es] in salary systems an obvious means of discrimination — the very discrimination that the Act was designed to prohibit and rectify.

In a per curium opinion released today, the Supreme Court has vacated the Rizo decision on the grounds that the ninth circuit inappropriately counted Judge Reinhardt’s vote in the case. According to the Supreme Court, because a judge can change her vote until the moment an opinion is actually released, a judge who dies before that release date cannot be counted as an active judge. Thus, the en banc vote in Rizo should have been 5-5 rather than 6-5.

This development is unfortunate from the perspective of Equal Pay Act law, given the importance of the Rizo holding. But one line in the Supreme Court’s opinion stands out for other reasons and deserves a bit of attention. The Court closes its opinion this way:

Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity.

I admit that this reaction may be influenced by my personal connection to the judge, but I also cannot help but think that the final sentence is a bit too cute – even snarky – for an order vacating one of the last opinions of someone who dedicated his life to judicial service.

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