Judge Reinhardt, the overturned
REES, MATTHEW
The Judge the Supreme Court Loves To Overturn By Matthew Rees Stephen Reinhardt is the liberal badboy of the federal judiciary. He is ideological, outlandish, and never dull. The 66-year-old...
...In the course of deliberations (which are conducted mainly through email), he lobbies hard and strategizes relentlessly...
...Reinhardt is her fifth husband...
...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 also a bully, with little sympathy for his opposition...
...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...
...When it comes to oral arguments, rarely will any judge ask more questions than Reinhardt...
...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...
...Reinhardt, unsurprisingly, is an ardent defender of racial preferences and just as ardent a foe of the death penalty...
...Soon enough, the Supreme Court will rule on Reinhardt's opinion, and no one will be shocked if he, again, is overturned...
...of these, the high court will adjudicate only a small fraction...
...But there is a more persuasive explanation: Reinhardt is frustrated over the judiciary's failure to move his way...
...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...
...There are a couple of theories...
...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...
...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...
...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...
...He's feeling less constrained," says Arthur Hellman, a Ninth Circuit expert at the University of Pittsburgh Law School...
...His Ninth Circuit colleague Judge Stephen Trott acknowledges that Reinhardt is "pushing the envelope harder now...
...In this term alone, the high court has reversed seven opinions that Reinhardt has either written or been party to...
...His most significant opinion—last year's on physician-assisted suicide— "may be my best ever," he crowed to the Wall Street Journal...
...Rein-hardt 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...
...nor, as some predicted, has it led to widespread infanticide...
...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...
...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...
...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...
...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...
...A former Supreme Court clerk confirms that justices have privately referred to Reinhardt as a "renegade judge" and have given his opinions extra scrutiny...
...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...
...Here, Reinhardt is on the mark...
...In fact, Reinhardt is one of the most overturned judges in history...
...He dismisses this argument as "nihilistic": "The legalization of abortion," he says, "has not undermined our commitment to life generally...
...This concerns him, of course, but not so very much: In an average year, he will participate in some 500 cases...
...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 Rip-ston, is the left-wing head of the southern California affiliate of the American Civil Liberties Union...
...Reinhardt is clearly descending further into the fever swamps...
...The judge is overturned—by justices across the philosophical spectrum—for good reason: His jurisprudence has become increasingly eccentric and sloppy...
...Says Judge Trott, "The competition of ideas is at a very high level when [Reinhardt] is involved...
...Abortion, he considers a "fundamental right...
...That's not how firsts work...
...Another reason is that he works harder and produces more than anyone else...
...Otherwise, that voice will be silenced—perhaps permanently...
...Reinhardt employs four clerks instead of the usual three...
...For him, Earl Warren is "one of the greatest justices of all time...
...After Carter placed him on the bench, in the final months of his presidency, Reinhardt had to endure 12 years of conservative Republican appointments...
...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 his use of Cruzan, Reinhardt shows himself unwilling to distinguish between allowing a person to die and causing a person to die...
...Moreover, four other opinions in which Rein-hardt had a hand—including his notorious conclusion that there is a constitutional right to physician-assisted suicide—are now pending before the court...
...Clinton had the opportunity to do the same, and he blew it...
...Though he and Kozinski are friends and sometime public-debating partners, Reinhardt has spared him nothing...
...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...
...With every reversal, Reinhardt's image grows in the eyes of those who view him as a last, left-activist outpost...
...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...
...He has ruled that the use of police Matthew Rees is a staff writer for The Weekly Standard...
...Though a graduate of Yale Law School, Reinhardt lacked the normal credentials of a federal judge when Carter nominated him...
...But why...
...Of his seven reversals this term, three came on a per curiam basis...
...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...
...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 1993, he wrote in the Washington Post about the need for openly homosexual judges...
...And as Reinhardt—the country's most audacious liberal judge—has been heard to say, "They can't catch 'em all...
...He has ruled that farmers lack the standing to challenge the Endangered Species Act because they are motivated by "an economic interest...
...The judge wrote an open letter to Breyer in the Los Angeles Times calling on him to become the court's liberal conscience...
...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...
...Reinhardt saw an opening in May 1994 when Clinton nominated Stephen Breyer to the Supreme Court...
...It is vintage Reinhardt in another respect, too: It is intellectually unscrupulous...
...Reinhardt explains his reversals by claiming that he is specially targeted by the high court...
...A year later, he wrote to Eleanor Acheson, the assistant attorney general in charge of judicial nominations, and asked, "Do you stand for anything...
...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...
...One reason is that he is undeniably smart...
...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...
...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...
...Two of those clerks, former civil-rights chief Deval Patrick and spinmeis-ter Mark Fabiani, went on to prominence in the Clinton administration...
...One says that, as a bench veteran, Reinhardt is more secure in handing down provocative opinions...
...He had toiled primarily as a Democratic activist and labor lawyer, functioning as a member of Los Angeles mayor Tom Bradley's inner circle...
...The crux of his argument rests on demonstrating that a prohibition against physician-assisted suicide violates the due-process clause of the Fourteenth Amendment...
...Upon being informed of the survey's results, Reinhardt, irrepressible, said, "I don't feel I write as many cases as I should...
...And a few days prior to Clinton's second inauguration, Rein-hardt zinged the president in a San Francisco speech for not having nominated a black or a Hispanic judge to the Ninth Circuit...
...Reinhardt is recalled by the city's politicos as ruthless...
...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...
...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...
...These haven't been narrow reversals, either—all seven of them have been unanimous...
...And "no one prepares more than he does," says Trott...
...dogs to track down drugs or criminal suspects violates the Fourth Amendment (which protects against unreasonable searches and seizures...
...His flamboyance notwithstanding, Reinhardt is influential with his colleagues...
...But by the standards of left-wing legal tastes, Clinton's judges have been a fairly moderate bunch...
...And he brought his sharp political elbows into the courtroom, where he has been, by certain measures, a success...
Vol. 2 • May 1997 • No. 33
