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Volume 41. No. 2.
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It’s not an easy time to be a liberal judge, but criticisms from the right and reversals from the Supreme Court only strengthen the resolve of Judge Stephen R. Reinhardt ’51 to do what he believes to be the right thing for America.

The Right Thing

By Lorraine Wang

At the center of a storm, Stephen R. Reinhardt ’51 remains calm.

Controversy seems to swirl around his every move. As a judge on the U.S. 9th Circuit
Court of Appeals, Reinhardt was part of the panel that ruled that the phrase “one
nation under God” in the Pledge of Allegiance violated the separation of church and
state. Bucking the increasing tendency toward narrow interpretations of the
Constitution, he has written a long and literate opinion that maintains that the
document guarantees the right to assisted suicide. And despite years of retrenchment on
civil rights issues, he has continued to assert the importance of racial justice in
American society, writing in the wake of the Los Angeles riots: “We have lost the
confidence of those who most need to believe in the fairness of the judiciary.”

For his pains, the unabashedly liberal judge has drawn a barrage of criticism from the right. Rush Limbaugh has harangued him as a “left-leaning commie socialist,” and the conservative Weekly Standard has labeled him “the liberal bad boy of the federal judiciary.” Many of Reinhardt’s rulings have been overturned by the largely Republican-appointed Supreme Court, sometimes without any discussion beforehand.

The opposition, if anything, merely strengthens Reinhardt’s resolve.

“I don’t feel any pressure. I suppose I should be pleased that those who have what I believe to be an erroneous view of the Constitution react strongly to rulings that I think protect people’s rights.”

For Reinhardt, the issues being contested go far deeper than the superficial politics
of left and right—they reflect fundamental differences in the interpretation of the
Constitution. “One view is that the Constitution is a limited document just meant to
distribute powers among various branches,” he explains. “Another view is that it’s
designed to ensure a way of life that was envisioned for America and Americans, where
everyone would have opportunities to develop, where privacy would be protected, where
people would have more and more freedoms.”

Accordingly, he sees himself not as a champion of the left so much as a guardian of the
Constitution’s true intent: “I’m a judge who believes that the Constitution is a vital
document that was not intended to be limited to the specific thoughts of people several hundred years ago.”

Reinhardt says many of his views on the Constitution and the nation’s political system
were formed during his years at Pomona, where he majored in government. One of his
professors was John A. Vieg, a dedicated New Deal Democrat who was known for his
commitment to reform and public service and his compassion for the individual. “I
learned a lot about the American system of government and about our Constitution,”
Reinhardt says. “Not only Dr. Vieg, but other professors in the department were really
inspiring and helped me form my political philosophy.”

At Pomona, Reinhardt was active in politics, taking part in Democratic Party club
events. He also spoke out against the racial inequity of the time. He recalls asking an
administrator why there were no black students at the College, except for one from
Liberia. “He told me it was because blacks were not qualified to go to a school like
Pomona. I said I found this hard to believe,” Reinhardt says. “And he said if I didn’t
like the admissions policy, I should transfer to another school.”

“It was a different era,” Reinhardt says, adding: “Pomona is the kind of college now
that I’d be happy to go to.” Although Pomona has changed, Reinhardt has not; the
struggle for the rights of individuals and minorities has remained a primary concern
throughout his career.

After Pomona, he attended Yale Law School, graduating in 1954. He served for a few
years in the Air Force general counsel’s office, then went into private practice in Los
Angeles. “I represented a lot of working people as a lawyer,” he says with obvious
satisfaction. He stayed politically active, serving as a member of the Democratic
National Committee and leading the California delegation during the party’s eventful
1968 convention in Chicago. From 1975 to 1980, he also served on the Los Angeles Police
Commission, at one point clashing with then-Chief Daryl Gates over police surveillance
of local activists. Of his time on the commission, he comments dryly: “It’s certainly an interesting place to learn about life.”

Reinhardt was appointed to the 9th Circuit Court by President Jimmy Carter in 1980. It
was the beginning of a long dry spell for liberals in the federal judiciary, as the
succeeding administrations of Presidents Ronald Reagan and George Bush Sr. made it
their priority to move the federal judiciary to the right.

“There was no secret about the views of the people elected president. (They) appointed
very conservative judges, who then rolled back rights,” Reinhardt says. “It was part of
their election campaign that they would change the nature of the judiciary. And they did.”

During the Clinton years, Reinhardt says, an opportunity to restore judicial balance
went largely wasted. “It was disappointing that President Clinton did not have the same
interest in what type of judiciary we had as the more right-wing presidents. One would
have thought that a president and his wife who had both gone to Yale Law School would
have a concern about the courts, but it was very low on their list of priorities.”

The consequences, at least for Reinhardt and some of his colleagues on the 9th Circuit
Court, have been substantial. The San Francisco–based court has unarguably the highest
reversal rate among the federal circuits. On a single day in the fall of 2002, the
Supreme Court overturned three separate 9th Circuit rulings in unanimous and summary
decisions. However, the 9th Circuit represents the largest such court, covering nine
Western states and several territories. It is one of the few federal appeals courts
that have more Democratic appointees than Republican ones. Critics of the 9th Circuit
(and of Reinhardt) have had a stake in exaggerating the number of rebuffs the court has
received in an effort to minimize the importance of the opinions.

For his part, Reinhardt remains philosophical about the reversals. “I think it’s
unfortunate for the Constitution. We’ve had many cutbacks in the rights that the courts
had afforded. There was an era in our judicial system, known largely as the period of
the Warren-Brennan court, where individual rights were recognized and protected, where
we had a vision of growth for individuals and for freedoms. Unfortunately, I think
we’re in a regressive period at the moment, where rights of individuals are being
reduced, where the government is given more authority over individual freedoms.”

Despite this unfriendly political climate, Reinhardt —whose wife is Ramona Ripston,
executive director of the Southern California branch of the American Civil Liberties
Union—remains determined to pursue his own course: “One of the advantages of being a
federal judge is you have lifetime tenure—that allows you to be free and independent
and to do what you think is right,” he says. “You continue to apply the Constitution as
you believe it is intended to be applied. And if the Supreme Court disagrees with you,
that’s its privilege, but you still have the obligation to do what you believe is
correct.

Perhaps because of the inordinate scrutiny they receive from all sides, Reinhardt’s
judicial opinions are meticulously researched and written to be read. He quotes
extensively from sources as varied as Patrick Henry and Shakespeare’s King Lear. The
ruling that he takes the most pride in was written for a 1996 right-to-die case,
Compassion in Dying v. the State of Washington. In it, Reinhardt and his fellow judges
struck down a Washington statute that rendered it a criminal act for physicians to help
their terminally ill patients commit suicide. Reinhardt argued that the statute
violated the due process clause of the Fourteenth Amendment by restricting an
individual’s right to make fundamental choices about life and death.

Although the ruling was reversed by the Supreme Court a year later, Reinhardt believes
that his opinion will be the one that ultimately wins out. “I think that it’s
inevitable that one day, if this country continues to evolve in the direction that it
has in the past 200 years, the courts will recognize what I said in that opinion—that
people have the right to choose their own manner of death when they are actually
dying.”

Some of his critics have accused him of playing fast and loose with judicial precedent,
but Reinhardt contends that his rulings lie well within the scope of the Constitution.
And he adds that there are many times when his commitment to the law forces him to make
decisions that he would rather not make. “I have sat on a host of cases in which, had I
been imposing only a Solomonic sense of justice unconstrained by the Constitution,
federal statutes, or precedent, I would have come to a different result than I was
compelled to reach,” he wrote on a court-related Web-log earlier this year.

One such case involved an Internet Web site that posted “wanted” posters of doctors who
performed abortions, some of whom were later killed. The majority of judges ruled that
the site was not protected by the First Amendment. Reinhardt was among the dissenters,
joining four other judges, among them three Republicans. “The really liberal view of
the First Amendment is very similar to the Libertarian view or sometimes the extreme
conservative view of the First Amendment,” Reinhardt explains. “It was the middle group
that supported the limitations on speech.”

Support for Reinhardt’s admittedly expansive reading of the Constitution might
eventually come from the rising number of cases involving technology questions, such as
whether parolees can be required to provide DNA samples for a federal database and
whether in vitro babies conceived after the death of their father can collect his
Social Security benefits. A narrow interpretation of the Constitution would clearly put
such issues outside its governance; in contrast, Reinhardt believes that although such
issues require careful study, fundamental judicial principles can be applied.

“We’re capable of handling it,” he says, reflecting a deep-seated optimism that no
amount of opposition has been able to shake.
 
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