One of President Jimmy Carter’s greatest legacies was the terrific judges he appointed, especially to federal courts of appeals. Carter never got to appoint a Supreme Court justice. However, he did appoint nine women to federal courts of appeals judgeships—before then, only two women in all of American history had ever been federal court of appeals judges. Carter relied on merit selection committees, and that process yielded a group of truly excellent judges. One of the greatest of them, Judge Stephen Reinhardt, died yesterday at age 87.
Reinhardt will be most remembered as a liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court justices were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But he was always steadfast that his role was to interpret the Constitution and the law to the best of his ability, not to predict what the Supreme Court might do. His opinions will endure and hopefully provide guidance in a future, more progressive time.
Although the phrase “liberal judge” is never defined, in common understanding it refers to a judge whose opinions protect civil rights and civil liberties, one who tends to favor the individual over the government and the government over business. Put simply, Stephen Reinhardt’s judicial philosophy was far closer to the Warren Court than to the Roberts Court. More subtly and more importantly, however, it is a judicial philosophy based on the view that the Constitution embodies a profound respect for human dignity and that its meaning evolves through interpretation.
An illustration of this can be found in Reinhardt’s opinion for the Ninth Circuit, later reversed by the Supreme Court, upholding a constitutional right to physician-assisted death. Reinhardt's opinion explained that the matter of life and death was so “central to personal dignity and autonomy” that the Constitution left it to the individual.
[B]y permitting the individual to exercise the right to choose, we are following the constitutional mandate to take such decisions out of the hands of the government, both state and federal, and to put them where they rightly belong, in the hands of the people. We are allowing individuals to make the decisions that so profoundly affect their very existence—and precluding the state from intruding excessively into that critical realm.
Sometimes the Supreme Court ultimately agreed with Reinhardt, as when it declared unconstitutional laws prohibiting same-sex marriage. Reinhardt wrote the Ninth Circuit’s decision striking down California’s Proposition 8, which amended the state constitution to provide that marriage had to be between a man and a woman.
More often the Supreme Court reversed Reinhardt, as it did in overruling his opinions on a range of topics: that the words “under God” in the Pledge of Allegiance impermissibly establishes religion, that the federal statute prohibiting partial-birth abortion is unconstitutional, and that the First Amendment protects the speech of government employees. Not surprisingly, he and the Supreme Court differed dramatically on the death penalty and more than once his opinions in this area were reversed.
But I worry that his reputation as a liberal judge obscures the fact that he was a terrific judge. His opinions were always thorough, well-reasoned, and models of clarity. His questions from the bench were focused and reflect his tremendous intelligence and careful preparation. His clerks and former clerks—some of whom had been my students—describe the incredibly long hours that he put in day after day and week after week. He was obsessed with the craft of judging and that, too, may allow his opinions to stand the test of time.
I had the enormous privilege of being friends with Stephen Reinhardt and his wife, Ramona Ripston, who served as the executive director of the ACLU of Southern California for 40 years. I got to observe that, off-the-bench, Reinhardt lived the values that his opinions espoused. He was an exceptionally kind person and was tremendously devoted to Ramona and his children and grandchildren.
I do wish that Reinhardt had taken senior status during the Obama presidency, so that Barack Obama, and not Donald Trump, would have picked his successor. The refusal of Reinhardt and Harry Pregerson to do so has unnecessarily given two seats on the Ninth Circuit to conservatives. Reinhardt said he did not want to do this because he did not want to give up participating in the en banc process, whereby the whole court can review the decisions of three-judge panels. That choice will have consequences for a long time to come.
I once heard it said that you don’t need many heroes if you choose your heroes wisely. I don’t have many heroes. But one was Stephen Reinhardt.