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
Widget tooltip
Single Page Print Larger Text Smaller Text Alerts

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."

Reinhardt saw an opening in May 1994 when Clinton nominated Stephen Breyer to the Supreme Court. The judge wrote an open letter to Breyer in the Los Angeles Times calling on him to become the court's liberal conscience. "There are lots of able technicians," he said, but the nation "is entitled to at least one justice with vision, with breadth, with idealism, with--to say the word despised in the Clinton administration--a liberal philosophy and an expansive approach to jurisprudence." As to the problem of Breyer's not being a Reinhardt-style liberal, the judge wrote, "I hope you will re-examine your philosophy," and "when you emerge, I hope it will be to assume the mantle of the Brennan-Warren legacy. Otherwise, that voice will be silenced--perhaps permanently."

His flamboyance notwithstanding, Reinhardt is influential with his colleagues. One reason is that he is undeniably smart. Says Judge Trott, "The competition of ideas is at a very high level when [Reinhardt] is involved." Another reason is that he works harder and produces more than anyone else. A survey found that, in the first half of the '90s, Reinhardt was the most prolific judge on his circuit, writing more majority decisions, dissents, and concurrences than anyone else. (Upon being informed of the survey's results, Reinhardt, irrepressible, said, "I don't feel I write as many cases as I should.") Reinhardt employs four clerks instead of the usual three. Two of those clerks, former civil-rights chief Deval Patrick and spinmeister Mark Fabiani, went on to prominence in the Clinton administration. Reinhardt is known for picking the sharpest, most liberal law-school graduates he can find, but even without them, he would be unlikely to lose his ideological moorings: His wife, Ramona Ripston, is the left-wing head of the southern California affiliate of the American Civil Liberties Union. (Reinhardt is her fifth husband.)

When it comes to oral arguments, rarely will any judge ask more questions than Reinhardt. And "no one prepares more than he does," says Trott. When the arguments are finished and the judges leave the courtroom, Reinhardt will sometimes corner a colleague and engage in another hour of debate. In the course of deliberations (which are conducted mainly through email), he lobbies hard and strategizes relentlessly. "A lot of his influence has to do with his force of will," says Alex Kozinski, a libertarian Ninth Circuit colleague, adding that Reinhardt doesn't take defeat lightly: "He broods over his losses for years."

Reinhardt is also a bully, with little sympathy for his opposition. Though he and Kozinski are friends and sometime public-debating partners, Reinhardt has spared him nothing. When Kozinski dissented from a 1995 decision striking down an English-only initiative, Reinhardt did something few other judges would even think of doing: He wrote a separate concurrence to the majority opinion for the sole purpose of assailing Kozinski, the dissenter. "Judge Kozinski's view of the rights of non-English speaking persons would make the Statue of Liberty weep," Reinhardt wrote, evoking the specter of an "Orwellian world" and "Big Brother." Were Kozinski's views ever implemented, he added, the victims would be "people who are not as fortunate or as well educated as he--people who are neither able to write for nor read the Wall Street Journal" (to which Kozinski occasionally contributes).

Though a graduate of Yale Law School, Reinhardt lacked the normal credentials of a federal judge when Carter nominated him. He had toiled primarily as a Democratic activist and labor lawyer, functioning as a member of Los Angeles mayor Tom Bradley's inner circle. Reinhardt is recalled by the city's politicos as ruthless. And he brought his sharp political elbows into the courtroom, where he has been, by certain measures, a success.

His most significant opinion--last year's on physician-assisted suicide--"may be my best ever," he crowed to the Wall Street Journal. The opinion, Compassion in Dying v. State of Washington, is vintage Reinhardt: It is eminently readable, heavily researched (with references to Hume, Montaigne, and King Lear, among countless others), long (109 pages, 140 footnotes), and dependent on unconventional evidence (polling data). It is vintage Reinhardt in another respect, too: It is intellectually unscrupulous.

The crux of his argument rests on demonstrating that a prohibition against physician-assisted suicide violates the due-process clause of the Fourteenth Amendment. He cites as his main precedents Cruzan v. Missouri, the only right-to-die case taken up by the Supreme Court thus far, and the abortion cases Roe v. Wade and Planned Parenthood v. Casey. And therein lies the error of his reasoning: the leap between rights established in these earlier cases and a right to physician-assisted suicide. In his use of Cruzan, Reinhardt shows himself unwilling to distinguish between allowing a person to die and causing a person to die.

Elsewhere in his opinion, Reinhardt notes that, for decades, physicians have been "discreetly helping terminally ill patients hasten their deaths' and that they have done so with the "tacit approval" of much of the public and medical profession. Reinhardt is equally cavalier when treating a principal argument of the other side--that once physician-assisted suicide is legalized, it will be used inappropriately, as in the Netherlands. He dismisses this argument as "nihilistic": "The legalization of abortion," he says, "has not undermined our commitment to life generally; nor, as some predicted, has it led to widespread infanticide." In truth, there was a marked increase in the number of abortions immediately after Roe in 1973 and such procedures as partial-birth abortion enjoy political and judicial protection.

Soon enough, the Supreme Court will rule on Reinhardt's opinion, and no one will be shocked if he, again, is overturned. As long as he is on the bench, and as long as the Supreme Court is controlled by justices of some consistency, Reinhardt will continue to be overturned. This concerns him, of course, but not so very much: In an average year, he will participate in some 500 cases; of these, the high court will adjudicate only a small fraction. And as Reinhardt--the country's most audacious liberal judge--has been heard to say, "They can't catch 'em all."

Matthew Rees is a staffwriter for The Weekly Standard.