Professor Hartnett on the Matter of Justice Scalia's Votes
Professor Hartnett is one of the nation's leading authorities on the U.S. Supreme Court
Edward A. Hartnett, the Richard J. Hughes Professor of Law, is a co-author of Supreme Court Practice, the manual of protocols for the U.S. Supreme Court. He reflects on the votes that Justice Antonin Scalia (1936-2016) might have cast prior to his death on February 13:
Some have asked if Justice Scalia’s vote might still count in cases that were already argued and voted upon in conference. Justice Harlan once suggested, in the context of determining the proper membership of the court of appeals, that if "all argument, reflection, deliberation, and explication" have been completed and an opinion filed with the clerk the morning after the retirement of a judge, that judge's vote should be counted. See United States v. American-Foreign S.S. Corp., 363 U.S. 685, 694 (1960) (Harlan, J., dissenting). But this was a dissenting view; the majority in American-Foreign Steamship treated the date on which the decision was issued as the relevant date in determining the court's legitimate membership. Id. at 686, 688-91.
This makes good sense. Conference votes are inherently tentative; a vote does not become effective until the decision is filed or announced. See United States v. Banmiller, 310 F.2d 720, 736 (3d Cir. 1962) (in banc) (holding that the vote of a judge who participated at conference but died before the opinion was filed could not be counted); Mayor of Baltimore v. Mathews, 562 F.2d 914 (4th Cir. 1977) (in banc) (counting the vote of a judge who had "concurred in the judgment and approved the language of Parts I and II of the majority opinion" but "died before the filing of the opinions"), withdrawn on reh'g, 571 F.2d 1273, 1276 (4th Cir. 1978) (holding that the deceased judge's approval of the draft opinion "cannot be tallied for the purpose of deciding the appeal"); Cramer v. Fahner, 683 F.2d 1376, 1378 n. (7th Cir. 1982) (noting that a judge who had heard the oral argument, voted to affirm, and concurred in a suggested opinion but died prior to reviewing the partial dissent, was "succeeded on the panel" by another judge); see also Terri Jennings Peretti, In Defense of a Political Court 110 & 289 n.229 (1999) (noting studies of various periods in the Supreme Court of the United States showing that approximately 14% of the time the initial vote of a justice differed from his ultimate vote).
It is sometimes said that the Supreme Court of the United States counted Justice Grier's vote in Hepburn v. Griswold, 75 U.S. 603 (1870), even though he had retired effective January 31, 1870, and the opinion was announced on February 7, 1870. See, e.g., Paul Brest et al., Processes of Constitutional Decisionmaking: Cases and Materials 235 (4th ed. 2000) (asking whether "we would today count the vote of a justice in similar circumstances"); David J. Garrow, Mental Decrepitude on the U.S. Supreme Court: The Historical Case for a 28th Amendment, 67 U. Chi. L. Rev. 995 (2000) (stating that "Chief Justice Chase was intensely committed to using Grier's vote to support a majority decision" despite "Grier's demonstration of mental incapacity during the conference discussion"); Knox v. Lee, 79 U.S. 457, 572 (1871) (Chase, C.J., dissenting) (describing Hepburn as decided by a vote of five to three). In Hepburn, the opinion of the court recited, "It is proper to state the Mr. Justice Grier, who was a member of the court when the case was decided in conference, and when this opinion was directed to be read … concurred in the opinion" that the legal tender clause, as construed by the other judges, was unconstitutional. Id. at 626. This can plausibly be read as simply a notation of Justice Grier's views, even though his vote did not count. Cf., e.g., Mayor of New York v. Miln, 36 U.S. 102 (1837) (Story, J., dissenting) (noting that "the late Mr. Chief Justice Marshall" had heard the arguments in the case at an earlier term and that "his deliberate opinion" coincided with Justice Story's); United States v. Turner, 130 F.3d 815, 816 n.1 (8th Cir. 1997) (noting that a judge had died after oral argument and that the opinion "is consistent with his vote at the panel's conference"). If Grier is not counted, there were seven participating justices, and the decision was four to three. Thus Grier's vote was not necessary to make the Chief Justice's opinion an opinion of the Court. Moreover, the paragraph about Justice Grier's views comes at the very end of the opinion, after the paragraph concluding that the judgment under review must be affirmed. Thus there is reason to doubt, despite the protestations of Chief Justice Chase when Hepburn was overruled, that Justice Grier's vote did count in Hepburn. See Charles Fairman, 6 The Oliver Wendell Holmes Devise History of the Supreme Court of the United States 677 (1971) (describing Hepburn as decided by Chief Justice Chase, joined by Justices Nelson, Clifford, and Field, over the dissent of Justices Miller, Swayne, and Davis); Bernard Schwartz, A History of the Supreme Court 157 (1993) (stating that when Hepburn was decided, the "Supreme Court consisted of only seven members"); Robert H. Jackson, The Struggle for Judicial Supremacy 42 (1941) (stating that "before the decision was announced, Grier resigned, and the score was announced 4 to 3"); cf. Finishing Inc. v. Di-Chem, 419 U.S. 601, 617 (1975) (Blackmun, J., dissenting) (describing Hepburn as "assertedly" decided by a five to three vote). Even if Hepburn is read as supporting the counting of a vote when the judge dies or retires before the decision is announced, it simultaneously illustrates the danger of such a practice. Hepburn was overruled a year later, and the entire episode is regarded as "ignominious and embarrassing." Garrow, supra, at 1005; see also Di-Chem, 419 U.S. at 618 (describing Hepburn as producing "prompt reversal of opinion, embarrassment, and recrimination").
For these reasons, Justice Scalia’s vote at conference should not count in cases where the decision has not yet been announced.