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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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.