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

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.