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THE NATION | THE LAW

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

December 15, 1996|David M. O'Brien | 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)

CHARLOTTESVILLE, VA. — 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."

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