The Magazine

The Judge the Supreme Court Loves to Overturn

From the May 5, 1997 issue: Judge Stephen Reinhardt was notorious long before his 9th Circuit's Pledge of Allegiance decision.

May 5, 1997, Vol. 2, No. 33 • By MATT REES
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STEPHEN REINHARDT is the liberal badboy of the federal judiciary. He is ideological, outlandish, and never dull. The 66-year-old judge, appointed by Jimmy Carter in 1980 to the Ninth Circuit Court of Appeals in San Francisco, is well known to the Supreme Court, which has a habit of overturning his opinions.

In fact, Reinhardt is one of the most overturned judges in history. In this term alone, the high court has reversed seven opinions that Reinhardt has either written or been party to. These haven't been narrow reversals, either--all seven of them have been unanimous. Moreover, four other opinions in which Reinhardt had a hand--including his notorious conclusion that there is a constitutional right to physician-assisted suicide--are now pending before the court. In his many years on the bench, Reinhardt has proven himself one of those judges who view the Constitution as an infinitely malleable document in which myriad "rights" can be divined. He has ruled that farmers lack the standing to challenge the Endangered Species Act because they are motivated by "an economic interest." He has ruled that the use of police dogs to track down drugs or criminal suspects violates the Fourth Amendment (which protects against unreasonable searches and seizures). Decisions such as these have made him a revered figure of the legal Left--in 1987, the California Trial Lawyers named him "Appellate Judge of the Year." With every reversal, Reinhardt's image grows in the eyes of those who view him as a last, left-activist outpost.

Reinhardt explains his reversals by claiming that he is specially targeted by the high court. He told the San Francisco Chronicle last October that the justices are "probably more aware of my opinions than those of some judges and they probably read them with more care." Here, Reinhardt is on the mark. A former Supreme Court clerk confirms that justices have privately referred to Reinhardt as a "renegade judge" and have given his opinions extra scrutiny.

The judge is overturned--by justices across the philosophical spectrum--for good reason: His jurisprudence has become increasingly eccentric and sloppy. Of his seven reversals this term, three came on a per curiam basis. This rare procedure signals the agreement of all nine justices that a lower court's ruling is so flawed, there is no need for oral argument.

Reinhardt is clearly descending further into the fever swamps. His Ninth Circuit colleague Judge Stephen Trott acknowledges that Reinhardt is "pushing the envelope harder now." But why? There are a couple of theories. One says that, as a bench veteran, Reinhardt is more secure in handing down provocative opinions. "He's feeling less constrained," says Arthur Hellman, a Ninth Circuit expert at the University of Pittsburgh Law School. But there is a more persuasive explanation: Reinhardt is frustrated over the judiciary's failure to move his way.

After Carter placed him on the bench, in the final months of his presidency, Reinhardt had to endure 12 years of conservative Republican appointments. He had hoped that Bill Clinton would be equally aggressive in appointing liberals, for Reinhardt believes that courts can and should be used as agents of social change. (For him, Earl Warren is "one of the greatest justices of all time.") But by the standards of left-wing legal tastes, Clinton's judges have been a fairly moderate bunch.

This infuriates a warrior like Reinhardt, who in 1994 took the highly unorthodox step of blasting the president: "Reagan and Bush really changed the philosophy of the courts, and not for the better," he said. "Clinton had the opportunity to do the same, and he blew it." A year later, he wrote to Eleanor Acheson, the assistant attorney general in charge of judicial nominations, and asked, "Do you stand for anything?" And a few days prior to Clinton's second inauguration, Reinhardt zinged the president in a San Francisco speech for not having nominated a black or a Hispanic judge to the Ninth Circuit. In the same speech, he hailed Thelton E. Henderson, the district-court judge who blocked implementation of the anti-affirmative-action California Civil Rights Initiative, as "a shining judicial star" and charged that "an abler, more committed president would have found a way" to promote Henderson to the Ninth Circuit.

Reinhardt, unsurprisingly, is an ardent defender of racial preferences and just as ardent a foe of the death penalty. Abortion, he considers a "fundamental right." In 1993, he wrote in the Washington Post about the need for openly homosexual judges. When such a judge was named the next year, Reinhardt complained that the appointment received too little publicity, telling the journal of the American Bar Association, "It was like hiring Jackie Robinson, putting him on the field and no one saying anything about it. That's not how firsts work."