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In a recent decision (No. 18-272, Yovino v. Rizo, decided February 25, 2019 Per Curiam, properly cited as 586 U. S. ___ (2019)), the United States Supreme Court (SCOTUS) dealt with the matter of a judge in a court of appeals that had participated in a case, voted on one side of an en banc review, and authored the 6-5 majority opinion. However, he died 11 days before the ruling was officially issued. The Ninth Circuit Court of Appeals allowed that decision to stand, stating:

Prior to his death, Judge Reinhardt fully participated in this case and authored this opinion. The majority opinion and all concurrences were final, and voting was completed by the en banc court prior to his death.

However, the Court vacated and remanded, taking the position that

When the Ninth Circuit issued its opinion in this case, Judge Reinhardt was neither an active judge nor a senior judge. For that reason, by statute he was without power to participate in the en banc court’s decision at the time it was rendered.

And therefore,

... [T]he 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.

(The details and quotes are from the decision, available on the SCOTUS website.)

Here's my question: If such a scenario took place in a Beis Din, that one of the dayanim died after writing the ruling but before the p'sak was formally published, what would be the halacha? Is there a specific point in the process, some part of g'mar din, where it might matter before but not afterwards? Does it make a differenct whether the other dayanim agree, thus nullifying the question of the majority? (This is mentioned as relevant in the SCOTUS case.) Or perhaps the ruling is now seen as being issued by only two dayanim, which do not form a proper Beis Din?

Would the rules change depending on the sort of beis din? That is, would the same principle hold for a Sandhedrin Ketana of 23, ruling on capital punishment, and today's Batei Din, which are (technically) hedyotos, without proper semicha?

As this is primarily a discussion post, sources where such questions have been raised and answered would be greatly appreciated.

  • I posted a Meta question to make sure this is on topic: judaism.meta.stackexchange.com/q/5159/9589 – Menachem Jul 10 at 1:54
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    Are writing and publishing traditional modes of a Jewish court? – Double AA Jul 10 at 2:02
  • @DoubleAA There is certainly the concept of g'mar din. I don't know what that means practically nowadays. But yes, I've seen several published piskei din from Batei Din. They are, of course, signed by all 3 dayanim; dissenting opinions are prohibited as lashon hara. – Menachem Jul 10 at 2:07
  • I note that (according to your quotations: I didn't read the opinion) the Supreme Court is basing its decision on a statute ("by statute he was without power to participate") which is irrelevant to your question. Not that that makes your question a bad one: but it does reduce the relevance of the U.S. case to this post. – msh210 Jul 10 at 7:40
  • @msh210 The SCOTUS case is what inspired the question. As my point was to examine the similarities or differences between US law and Halacha, the citations are relevant to the completeness of the question. (Also, I just like being verbose.) BTW, would you be opposed to more such questions? Chime in on the Meta post, please. – Menachem Jul 10 at 20:32
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The Mishna in Sanhedrin 5/4 writes (copied from Sefaria)

אָמַר אֶחָד מִן הַתַּלְמִידִים יֶשׁ לִי לְלַמֵּד עָלָיו זְכוּת, מַעֲלִין אוֹתוֹ וּמוֹשִׁיבִין אוֹתוֹ בֵינֵיהֶן, וְלֹא הָיָה יוֹרֵד מִשָּׁם כָּל הַיּוֹם כֻּלּוֹ. אִם יֵשׁ מַמָּשׁ בִּדְבָרָיו, שׁוֹמְעִין לוֹ.

If one of the disciples (sitting in front of Sanhedrin) said, “I have something to argue in favor of his acquittal”, they bring him up and set him among them and he does not come down from there all day. If there is anything of substance in his words they listen to him.

The Gemara in Sanhedrin 34a writes:

ת"ש דאמר ר' יוסי בר חנינא אחד מן התלמידים שזיכה ומת רואין אותו כאילו חי ועומד במקומו ואמאי נימא אילו הוה קיים הדר ביה השתא מיהא לא הדר ביה

The Gemara suggests: Come and hear a proof from a baraita: As Rabbi Yosei bar Ḥanina says: In a case where there was one of the students who argued to acquit and then died, the court views him as if he were alive and standing in his place and voting to acquit. The Gemara asks: But why? According to the opinion of Rav, that a judge may change his opinion at the time of the verdict, let us say: Perhaps if that student were alive, he would retract his opinion and find the accused liable. The Gemara explains: Now, in any event, he did not retract from his opinion.

The assumption is that he would not have changed his opinion, although one can do so.

The Rambam in Sanhedrin 10,3 rules like this Gemara.

[The Aruch La'ner (Sanhedrin 34a S.V. אחד) write that the chidush here is that even by a student who is not a regular member of Sanhedrin we follow his stated opinion. By a regular member of the Sanhedrin, we definitely follow his stated opinion.]

The Aruch Ha'Shulchan writes Sefaria Here that this is said specifically when we are saving the defendant from capital punishment, because of the rule of והצילו העדה that we try to save the defendant from death. However, where the judge was inclined to have him killed, or by monetary cases, where והצילו העדה would not apply, we do suspect that the judge changed his mind before the Gemar Din.

  • Thanks! I was re-inspired to ask after coming across the gemara in Sanhedrin, though it had been on my mind since first noticing the case in February. – Menachem Jul 10 at 20:23

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