The case of Yovino v. Rizo, 2018 revolved around the interpretation of the Equal Pay Act and whether an employer can justify a wage differential between male and female employees by relying on prior salary. Aileen Rizo, a math consultant for Fresno County Office of Education in California, discovered that her male colleagues were being paid significantly more than she was despite having less experience. She sued Jim Yovino (in his official capacity as superintendent) under the federal Equal Pay Act which prohibits sex-based wage discrimination unless it is based on seniority, merit system or any factor other than sex. The Ninth Circuit Court ruled in favor of Rizo stating that employers cannot use previous salaries to justify pay disparities because this perpetuates gender wage gaps from past jobs into new ones. However, this decision conflicted with rulings from other circuit courts leading to uncertainty about how broadly 'any factor other than sex' could be interpreted across different jurisdictions.

In the dissenting opinion for Yovino v. Rizo, Justice Gorsuch argued that while he agreed with the majority's decision to vacate and remand due to Judge Reinhardt's posthumous vote, he disagreed with their reasoning behind it. He stated that federal law does not allow a judge’s vote or opinion to be counted if they are no longer in active service at the time of decision. Therefore, according to him, Judge Reinhardt was no longer a “judge in active service” when this case was decided because his death occurred before the issuance of en banc court’s opinion and thus his votes should not have been counted. Gorsuch also expressed concern about potential manipulation of judicial decisions by strategically releasing opinions after a judge's death.