Stephen R. Reinhardt 1932-2018 Liberal icon of the 9th Circuit is dead

Forty years after Congress passed legislation that allowed President Jimmy Carter to reshape the 9th U.S. Circuit Court of Appeals, Stephen R. Reinhardt, who embodied the liberal jurisprudence the court developed in the decades following the president’s appointments, has died.

Reinhardt was the last of 15 judges Carter nominated to the circuit during the transformative period for the court, emerging as a champion of a liberal interpretation of the law and a torchbearer for precedents established by the Warren court in an era when the federal judiciary became more conservative.

“Reinhardt was an unabashed liberal,” said Erwin Chemerinsky, dean of the UC Berkeley School of Law. “He was a judge whose opinions consistently protected civil rights and civil liberties; he usually favored the individual over the government and the government over business.”

“More subtly and more importantly, it was a judicial philosophy based on the view that the Constitution embodies a profound respect for human dignity and that its meaning evolves through interpretation,” Chemerinsky said.

Reinhardt’s 38-year tenure on the bench allowed him to leave an impressive number of published opinions behind. His decisions were celebrated by the left, while being decried by the right as examples of judicial activism.

Reinhardt expressed few concerns about sparring with the nation’s high court, which reversed his rulings with some regularity.

At a conference last month, he said that he saw no need to follow the U.S. Supreme Court when he thought it got the law wrong. “They can’t catch them all,” he was famously quoted as saying.

In 1996, writing for the majority of an en banc panel, Reinhardt detailed a legal analysis establishing that individuals have a constitutional right to elect to end their lives and that a Washington state law prohibiting physician-assisted suicide violated the due process protections of the Constitution.

The U.S. Supreme Court unanimously reversed the ruling a year later.

In 2012, he authored the landmark decision striking down California’s voter-backed initiative that banned same-sex marriages, saying it was unconstitutional. The statute “serves no purpose, and has no effect, other than to lessen the status and human dignity of gays and lesbians in California,” he wrote.

The Supreme Court ultimately vacated the decision on the issue of standing.

In one of his final published opinions, he blasted immigration policies that would foreshadow the national debate over minors who come to the country illegally, a debate the court will weigh in on later this year.

Reviewing an emergency motion for injunctive relief from a Mexican who had been brought to the country illegally as a 15-year-old and lived in the United States for 28 years, a three-judge panel of the court, including Reinhardt, denied the motion, citing its lack of authority.

But Reinhardt wrote a lengthy concurrence, accusing the government of lacking “compassion” by forcing the separation of a family built by the petitioner.

“[T]he government forces us to participate in ripping apart a family,” he wrote. “Three United States citizen children will now have to choose between their father and their country.”

Stephen Roy Reinhardt was born March 27, 1931 in New York City into a Jewish family. Raised by his mother and stepfather, the Austrian film director Gottfried Reinhardt, the future federal jurist began honing his liberal philosophy at an early age.

“I grew up thinking about equality, fairness and democracy,” he told the Daily Journal in 2007.

He and his family moved to Los Angeles, where he attended high school. He graduated from Pomona College and went on to Yale Law School.

Selected to serve on the school’s law review, he resigned upon learning that he would have to give up campaigning for Adlai Stevenson’s 1952 presidential bid.

Upon his return to Los Angeles after a two-year stint in the Air Force, Reinhardt spent two years as an associate at O’Melveny & Myers LLP before embarking on a career as a labor attorney.

Politically connected to the Democratic Party, he advised Los Angeles’ former mayor, Tom Bradley, and Gov. Jerry Brown.

In 1979, Carter nominated Reinhardt to sit on the 9th Circuit. He was confirmed a year later.

His decades on the bench would make him the sixth longest serving member of the court.

During that time, Reinhardt developed a close friendship with his ideological opponent, former 9th Circuit Judge Alex Kozinski. Known to crack wise with each other during oral arguments, the two would spar with pens when it came to deciding cases.

In an en banc review of an Arizona statute that required English as the official language of the state government, Reinhardt wrote a special concurrence to his own majority opinion, excoriating Kozinski’s dissent in the case.

Reinhardt’s majority affirmed a district court ruling that the Arizona law violated the First Amendment.

Kozinski vociferously disagreed.

“In the latest chapter of his crusade against the use of languages other than English in public, it is what Judge Kozinski does not say that is most revealing,” Reinhardt wrote. “My learned colleague, who is surely expert in these matters by now, ignores completely the constitutional interests of the numerous non-English speakers.”

Reinhardt’s colleagues on the court expressed sadness.

“All of us here at the 9th Circuit are shocked and deeply saddened by Judge Reinhardt’s death,” the court’s chief judge, Sidney R. Thomas, said. “We have lost a great friend and colleague. As a judge, he was deeply principled, fiercely passionate about the law and fearless in his decisions. He will be remembered as one of the giants of the federal bench. He had a great life that ended much too soon.”

Judge Kim McLane Wardlaw said that he constantly fought for the protection of constitutional and humanitarian rights.

“He is righteously lauded for courageously advancing these principles against all those working to deprive others of their individual rights, but he knew no other way,” she said in an email. “Our nation has lost one of its, if not the, leading jurists of our time; our court is substantially less without him; and he will be sorely missed by all.”

Judge Milan D. Smith Jr. described Reinhardt’s death as a “watershed” moment of the 9th Circuit.

“I think he, more than any other judge I’ve met on the court, embodied what people generally thought of the 9th Circuit as being progressive,” Smith said.

An author on leading opinions in many areas of the law, Reinhardt expressed grave concern with the Antiterrorism and Effective Death Penalty Act of 1996, which he vociferously argued diminished the power of the writ of habeas corpus and the ability of the federal judiciary to remedy constitutional violations suffered by criminal defendants.

In 2007, he wrote a dissent from the court’s decision not to rehear en banc a petition from a California prisoner to explain his view that the act — which ordered the federal judiciary to give more deference to state court adjudication of habeas petitions — was unconstitutional.

Joined by four of his colleagues, Reinhardt wrote that the legislation was a “breach of the federal judiciary’s integrity and independence.”

He did so in the face of Supreme Court precedent upholding the law.

Reinhardt died Thursday, two days after his 87th birthday. According to Smith, the late judge had celebrated with many of his former clerks.

“He was so pleased with what they had done and accomplished,” Smith said.

Reinhardt is survived by his wife, Ramona Ripston, who was a longtime director of the ACLU of Southern California.