Reinhardt and the Supreme Court: This Time, It's Personal

David M. O'Brien is a professor of government at the University of Virginia and author of numerous books on the Supreme Court, including "Storm Center: The Supreme Court in American Politics" (Norton)

A battle between the U.S. Supreme Court and the U.S. Court of Appeals for the 9th Circuit is brewing--again. About 30% of the cases granted for review by the Supreme Court so far this term come from that circuit. Such a high percentage suggests the 9th Circuit has been targeted, because the court tends to grant review in order to reverse lower-court decisions. The battle, however, is also part of a war waged by one of the federal judiciary's last liberal crusaders, U.S. Circuit Judge Stephen Reinhardt, against the Supreme Court's conservatives.

Among the most controversial cases the court will hear this term are three in which Reinhardt wrote the opinions. He handed down the opinion striking down Washington state's 100-year-old prohibition against physician-assisted suicide. Another appellate court has also recognized such a right. But, notably, it did so on much narrower grounds. The 2nd Circuit held that drawing a line between a dying person's right to terminate life-support systems and the right to physician-assisted suicide was untenable and in violation of the 14th Amendment's equal-protection guarantee. By contrast, Reinhardt boldly ruled that a substantive but unenumerated constitutional right of privacy embraces a right to physician-assisted suicide. His provocative opinion virtually begged for the Supreme Court's attention.

Two other Reinhardt rulings that the Supreme Court will consider are no less significant. Arizona's English-only law, barring state employees from speaking any other language on the job, also fell in an opinion penned by Reinhardt. And, in an important environmental case, he held that citizens have standing to sue under the Endangered Species Act only to increase, but not decrease, protection for species--such as the shortnose and Lost River suckers.

Reinhardt's adventuresome creativity in expanding constitutional law does not escape Chief Justice William H. Rehnquist's notice. Last term, the Supreme Court reversed 10 of the 12 appeals taken from the 9th Circuit. Reinhardt participated in eight of them, and wrote opinions in three. One found racial discrimination in the prosecution of crack-cocaine dealers and another forbid, as a violation of double jeopardy, the seizure of all assets of drug dealers. In the previous term, 10 of the 13 cases coming from the 9th Circuit were reversed, including those broadly construing prisoners' rights and extending welfare benefits, as well as invalidating a drug-testing program for school athletes.

Reinhardt remains one of the last unabashed liberals. A former trial lawyer and Democratic activist, he was appointed to the bench by President Jimmy Carter in 1980. Born in New York, the 65-year-old jurist graduated from Pomona College and Yale Law School. His grandfather, Max Reinhardt, was the famous Austrian theatrical producer and director who escaped the Nazis by fleeing to Hollywood; and his father was a well-known film producer. The judge is praised as smart and scholarly, even by such conservative colleagues as Judge Alex Kozinski, a Ronald Reagan appointee. Unquestionably bright and hard-working, Reinhardt relishes combat and pushing legal boundaries well beyond those established by the Supreme Court.

Outspoken off the bench as well, Reinhardt regularly criticizes law-enforcement practices and champions the rights of death-row inmates, immigrants, minorities, women and the poor. Whereas others worry about the expanding size of the judiciary, he calls for increasing the number of federal judges to ensure access to justice for the middle class and the poor.

Reinhardt openly disdains the court's conservative makeup. He castigates the Rehnquist court's rulings for "subordinating individual liberties to the less-than-compelling interests of the state and of stripping lower federal courts of the ability to protect individual rights." In turn, he glorifies the halcyon days when the high court included his pantheon of liberals: Chief Justice Earl Warren and Justices William O. Douglas, William J. Brennan Jr. and Thurgood Marshall.

To be sure, the continuing battles between the Supreme Court and the 9th Circuit register more than the clash between Rehnquist's conservatism and Reinhardt's legal liberalism. The 9th Circuit, composed of 28 judges, is the largest federal appellate court. Its jurisdiction covers nine Western states, an area the size of Western Europe, embracing about one-fifth the nation's total population. Not surprisingly, the 9th Circuit confronts issues on the cutting edge of the law and has earned a reputation for fierce frontier independence. Even conservatives in the circuit have blasted the Rehnquist court. For example, Judge John T. Noonan, a Reagan appointee, publicly denounced the court's rulings cutting off appeals by death-row inmates for compelling lower federal courts to commit "treason to the Constitution."

In addition, it's worth emphasizing that the Supreme Court reviews only about 1% of the cases annually arriving on its docket. That means the overwhelming majority of appellate-court decisions are left undisturbed. As Noonan puts it, appellate judges are about as likely to be struck by lightning as to be reversed. For that reason, though, reversal for Reinhardt is a calculated risk--one of weighing how far he can push the law against the prospect of the court reversing his decisions. In his words, "Some of them may get reversed, others don't, and we can't worry about that."

Reinhardt and the 9th Circuit stand out because so many overreaching decisions and far-ranging opinions are handed down. The Rehnquist court's attempts to rein in Reinhardt and the 9th Circuit thus resembles a sort of ideological warfare. And that war is rooted in the past as well as Reinhardt's crusade against the Supreme Court's increasing conservatism.

In the late 1970s and early 1980s, the 9th Circuit developed a liberal reputation, largely due to Carter's appointment of Reinhardt and 14 other judges. By the mid-1980s, the battle lines were drawn, with the Supreme Court reversing the 9th Circuit in 26 consecutive rulings in a single term.

Then, in the late 1980s and early 1990s, following the appointment of more conservative judges by GOP Presidents Reagan and George Bush, the reversal rate fell and leveled off. Since 1993, however, the court's reversal rate of the 9th Circuit has risen again; it is now the highest among the 13 circuits.

With President Bill Clinton's reelection, the battle might be expected to escalate, since he will now have the chance to fill numerous judicial vacancies in the circuit. The number of vacancies on the 9th Circuit is already expected to grow from seven to at least 10 by next spring. Next year, it may grow to 17--primarily because a number of Carter judges are expected to take senior status. If Congress enacts a proposal for 10 additional judgeships, Clinton could name some 27 judges to the 9th Circuit during his second term.

Yet, the battle between the Supreme Court and the 9th Circuit may not necessarily escalate. Clinton's judges, much to Reinhardt's disappointment, are not staunch liberals. Indeed, Reinhardt has sharply criticized the president for missing the opportunity to forge major changes in the direction of the federal judiciary. Instead of naming highly partisan liberals, Clinton has concentrated on the "confirmability" of judicial nominees before the GOP-held Senate. As a result, Clinton's judges are less liberal than Carter's and, according to Reinhardt, the president "blew it."

Whether or not the Rehnquist court manages to get the 9th Circuit into line, and however long it takes, Reinhardt is certain to remain an outspoken, disgruntled warhorse. Though waging a war he cannot possibly win, this brash defender of liberal legalism will not go quietly.*

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