Remembering the Legacy of a Liberal Judge

Judge Stephen Reinhardt, a liberal stalwart on the U.S. Court of Appeals for the 9th Circuit, died last week in Southern California. He was 87.

Posted 3:48 p.m. Apr 2, 2018 — Updated 3:48 p.m. Apr 2, 2018

MATT STEVENS

, New York Times

Judge Stephen Reinhardt, a liberal stalwart on the U.S. Court of Appeals for the 9th Circuit, died last week in Southern California. He was 87.

We talked to two experts who clerked for Reinhardt to tell us a little bit about him and his legacy: Jeffrey Fisher, a professor at Stanford Law School, and Joshua Matz, a constitutional lawyer based in Washington.

The questions and their answers have been edited for length and clarity.

Q: What was Judge Reinhardt like?

Matz: Judge Reinhardt ranked among the most brilliant and influential judges in modern American history. His mastery of doctrine was equaled only by his conviction that law must aspire to justice, especially for the voiceless and vulnerable. His powerful opinions and tactical savvy — not to mention his rock-ribbed liberalism — made Reinhardt a hero to the left and a villain to the right.

Q: What were some of his most famous opinions?

Fisher: Judge Reinhardt persuaded colleagues on his appeals court, for example, to establish a right of terminally ill adults to physician-assisted suicide. He also spearheaded rulings forbidding states from establishing English as an official language and barring public schools from compelling students to recite the words “under God” in the Pledge of Allegiance. But the Supreme Court rebuffed him each time.

Two years after vacating an opinion by Judge Reinhardt forbidding states from banning same-sex couples from marrying, the Supreme Court adopted just that constitutional rule.

Q: Can you give us a layman’s explanation of the 9th Circuit and tell us why it’s important?

Fisher: The 9th Circuit is the largest of the 12 regional federal courts of appeals. It encompasses territory on the West Coast and adjacent states covering roughly one fifth of the U.S. population. Twenty-nine full-time judges sit on the court. Whereas the Supreme Court hears only about 75 cases a year, the 9th Circuit hears thousands.

Because California and other western states continually innovate everything from the economy to social policy, the 9th Circuit tends to hear an outsized portion of “big” cases. It is no accident, therefore, that Judge Reinhardt found himself so often on panels asked to resolve cutting edge legal issues.

Q: Who decides who will replace Judge Reinhardt — and how does it happen?

Matz: Federal judges are nominated by the president and must be confirmed by the Senate. Although presidents have traditionally consulted with home-state senators, President Trump and the GOP-controlled Senate have largely abandoned that practice. Instead, they have moved at an aggressive pace to confirm deeply conservative judges.

There are several vacancies on the 9th Circuit, now including Judge Reinhardt’s seat. We can expect that over the next year, or less, President Trump will nominate judges to fill most of those positions. However, at this point it is impossible to predict who he will nominate to replace Judge Reinhardt.

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