Courts

Judge Stephen Reinhardt, Liberal Lion Of The Ninth Circuit, Has Passed Away

Love or hate his jurisprudence, Judge Reinhardt's importance and influence cannot be denied.

By  
on

Judge Stephen Reinhardt and David Lat

Judge Stephen Reinhardt, the legendary “liberal lion” of the U.S. Court of Appeals for the Ninth Circuit, passed away yesterday afternoon at the age of 87. The cause of death was a heart attack while Reinhardt was visiting his dermatologist, according to the Ninth Circuit’s Public Information Office.

Judge Reinhardt was appointed to the Ninth Circuit by President Carter — yes, Carter — in 1980. He was one of the nation’s most famous (or infamous) appellate judges, thanks to his strong liberal bent. He issued landmark rulings in favor of oppressed or underprivileged groups, including criminal defendants, immigrants, and minority groups of many types.

“All of us here at the Ninth Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” Chief Judge Sidney R. Thomas said in a statement. “We have lost a great friend and colleague. As a judge, he was deeply principled, fiercely passionate about the law and fearless in his decisions. He will be remembered as one of the giants of the federal bench.”

Indeed. Whether you loved or loathed his jurisprudence, Judge Reinhardt’s importance and influence cannot be denied. His unapologetic liberalism won him admirers on the left, who viewed him as a jurist of courage and principle rarely seen since the Warren Court, and critics from the right, who branded him a liberal judicial activist of the highest order. When conservatives criticized the Ninth Circuit, they were often talking about Reinhardt.

And conservatives will be happy to have another Ninth Circuit vacancy to fill. At the age of 87 and with almost 40 years of judicial service, Judge Reinhardt could have taken senior status decades ago. But because he was still in active status at the time of his passing, his passing creates yet another opening on the Ninth Circuit, which could get filled by President Donald Trump — a prospect that would presumably make Judge Reinhardt turn over in his proverbial grave.[1]

Judge Reinhardt’s major rulings included opinions striking down the constitutionality of the words “under God” in the Pledge of Allegiance, state laws prohibiting physician-assisted suicide, and California’s ban on same-sex marriage in Proposition 8. These and many other decisions, especially rulings in the death-penalty and habeas-corpus areas, wound up getting reversed or vacated by the Supreme Court, making Reinhardt one of the most-reversed judges before SCOTUS. But he was untroubled; as he memorably quipped, “They can’t catch ’em all.”

Sponsored

Judge Reinhardt’s opinions didn’t fare well before the Supreme Court, but his law clerks certainly did. He was a “feeder judge,” sending many of his clerks into prestigious SCOTUS clerkships. Several of those clerks, who have gone on to prominent positions in the legal profession, remembered him on Twitter:

(Heather Gerken, now the dean of the Yale Law School, wrote a wonderful tribute to the judge for the Yale Law Journal, which I highly commend to you. Way back in 2010, Dean Gerken presciently flagged an issue that has come to the forefront with the #MeToo movement — see her final page, starting with “It is sometimes hard for an older man to mentor a young woman without crossing a professional line.”)

Sponsored

I had the pleasure of knowing Judge Reinhardt. We first met in 1999, when we sat together at dinner at the law clerk orientation in San Francisco. I was nervous to be sitting with him. I was clerking for Judge Diarmuid F. O’Scannlain, the conservative stalwart who was one of Judge Reinhardt’s principal antagonists on the Ninth Circuit, and I was a card-carrying member of the Federalist Society, so I viewed Judge Reinhardt as the Emperor Palpatine of the Ninth Circuit. My anxiety turned out to be unwarranted; we enjoyed each other’s company. (But I could not resist noting his “monopolization of the table’s communal bread basket,” which I mentioned in the 2004 post on Underneath Their Robes inventing the term “benchslapped.”)

Over the years, Judge Reinhardt and I would see each other from time to time, at conferences — the photo of us above was taken at the 2007 Federalist Society National Lawyers Convention — or at Yale Law School reunions (since we were on the same five-year reunion cycle, as members of the class of 1954 and the class of 1999). My last contact with Judge Reinhardt was in January 2017, when he emailed me:

David:

I very much enjoyed your article of January 11 regarding Supreme Court clerks. I was particularly interested in your characterization of me, of course. You wrote that “Judge Oetken is progressive, but smart and sane; Judge Reinhardt, on the other hand, is….” By “the other hand,” I assumed initially that you meant that I was neither smart nor sane. One paragraph later, however, I read that I generally hire clerks in my own image, “very smart.” Having determined that I was “very smart,” I was left with the obvious conclusion that you thought I was not sane. May I assure you that my mental health is excellent, but perhaps not since I’m pleased that you have ultimately concluded that I am “very smart.” Quite a compliment coming from one with your political views. Have as good a New Year as possible.

As you can tell from this note, Judge Reinhardt had a good sense of humor — and a direct one. As Dean Heather Gerken wrote in her 2010 tribute to him in the Yale Law Journal, the judge possessed a “shockingly funny bluntness.”

Judge Reinhardt was a hero to some and a villain to others, and assessments of his legacy as a jurist will vary wildly. But there’s no denying his intelligence, his diligence (six- to seven-day workweeks), his eloquence, and his commitment to doing justice as he envisioned it. Rest in peace, Judge Reinhardt.

[1] Will the three California seats on the Ninth Circuit — the former seats of Judge Reinhardt, the late Judge Harry Pregerson, and Judge Alex Kozinski — actually get filled? It might seem like a challenge, given the gulf separating President Trump from Senators Dianne Feinstein and Kamala Harris — who are both members of the Judiciary Committee, with Feinstein as Ranking Member. But because Reinhardt and Pregerson were so liberal, and Kozinski was far from a party-line conservative, the White House has ample room to maneuver; putting up two conservatives and one Obama-style “liberal” would still shift the Ninth Circuit dramatically to the right. On Twitter, I have made a bold prediction: “I suspect that the White House will be willing to give one Ninth Circuit seat to the CA senators now that there are three CA seats to fill.” Some folks think I’m crazy, and fellow former Ninth Circuit clerk Eli Savit is betting against me, but time will tell.

UPDATE (3:35 p.m.): Links in this piece were revised to reflect the fact that BuzzFeed first reported the news.

A Prominent Liberal Judge From The 9th Circuit Court Has Died At 87 [BuzzFeed]
Stephen Reinhardt, ‘liberal lion’ of the 9th Circuit, dies at 87 [Los Angeles Times]
Liberal giant on federal bench who wrote gay marriage decision has died [San Francisco Chronicle via How Appealing]
Ninth Circuit Judge Stephen Reinhardt Dies [U.S. Court of Appeals For the Ninth Circuit via How Appealing]
Judge Stories: Stephen Reinhardt [Yale Law Journal]

DBL square headshotDavid Lat is editor at large and founding editor of Above the Law, as well as the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

Topics

, , , , , ,