Crusading Liberal Judge Keeps High Court Busy

Judge Stephen Reinhardt of Los Angeles, the liberal leader of the U.S. appeals court for the western states, is doing his part to keep the Supreme Court busy this year.

Last week, the issue was racial bias, as the Justice Department challenged a Reinhardt opinion that said a clear “statistical disparity in the race of those prosecuted” suggests racial discrimination may be at work. The case arose when a lawyer for five Inglewood men facing crack cocaine charges asserted that prosecutors were targeting them because they were black.

Two weeks ago, the Supreme Court debated the proper sentence for the two Los Angeles police officers convicted in the beating of Rodney G. King. In their appeal, the officers relied on a Reinhardt opinion that argued that trial judges may give convicted criminals a more lenient prison term than called for by the rigid federal sentencing rules.

This week, the justices will decide whether to review a Reinhardt opinion that struck down Arizona’s constitutional amendment making English “the official language . . . of all government functions and actions.”

And next month, the court will hear a sweeping challenge to the government’s program of seizing all assets of convicted drug dealers, a double punishment that Reinhardt declared unconstitutional.

It has been another vintage performance for the 64-year-old Reinhardt, one of the last of the crusading liberals to sit on the federal bench.

Writing with the verve and style of someone who loves the law and has no doubt that his view is right, Reinhardt regularly turns out thundering opinions that tout the rights of minorities, immigrants, the poor and death row inmates.

And with nearly the same regularity, the Supreme Court intervenes to review and reverse the rulings.

It has become something of a long-running joke that a court opinion with Reinhardt’s name on it is sure to get the attention of the Supreme Court.

“There’s no question it sets off some bells,” said Columbia University law professor Michael Dorf, who clerked for Reinhardt in Los Angeles and Justice Anthony M. Kennedy at the Supreme Court.

For his part, Reinhardt says he is not fazed by the Supreme Court’s pattern of reversing his rulings.

“Not in the slightest!” he boomed. “If they want to take away rights, that’s their privilege. But I’m not going to help them do it.”

In 1980, President Jimmy Carter chose Reinhardt, a trial lawyer and Democratic activist, to sit on the sprawling U.S. 9th Circuit Court of Appeals, which hears cases in Pasadena, San Francisco, Seattle and other western cities. Ever since, he has carried on a long-distance battle with Justice William H. Rehnquist, the staunch conservative who became chief justice of the United States under President Ronald Reagan.

Throughout the 1980s, Rehnquist often traveled to California in the summer to speak to the annual conference of the appeals court. Rarely could he resist a gibe about the liberal-leaning 9th Circuit’s miserable record in the high court. One year, the justices reversed the 9th Circuit’s decisions 26 times in a row.

The West Coast judges seem to “have a hard time saying ‘no’ to any litigant with a hard-luck story,” Rehnquist told one gathering.

Reinhardt was offended, and said so. “Many of us feel an obligation to uphold the rights of the citizens against the government. That’s what the Constitution is there for,” he replied.

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It is an age-old dispute: the rights of the individual vs. the power and authority of the government. Reinhardt can be counted upon to take the side of the individual, the more unpopular the better. Rehnquist is just as sure to side with the government.

The Rehnquist vs. Reinhardt duel shows no sign of subsiding, although there is rarely a doubt as to who will prevail in a big case. The chief justice can usually put together a conservative majority to overturn troublesome decisions from Reinhardt and the 9th Circuit.

Five years ago, the courts were confronted with cases involving U.S. drug agents crossing into Mexico to search for evidence and to arrest drug traffickers. Later, they abducted several people believed to be involved in the murder of colleague Enrique Camarena.

However, the 9th Circuit Court ruled that the U.S. agents violated the 4th Amendment because they had no search warrant to gather evidence in Mexico. In a follow-up ruling, Reinhardt called the forced abduction of the Mexican nationals a shocking violation of international law.

Predictably, Rehnquist and the Supreme Court agreed to hear the government’s appeal on both issues, and reversed both, with the chief justice writing the opinions. The U.S. Constitution gives rights only to American citizens, not to Mexicans, Rehnquist said.

In conversation, Reinhardt grumbles about the right turn taken by the Supreme Court. It was noted recently that the court was not taking as many cases this year as in the past. “They’re doing plenty,” he groused.

Both admirers and critics describe Reinhardt as an exceedingly smart and hard-working jurist, a powerful writer and a combative advocate for his views.

“He’s a good old-fashioned liberal, and a kind of ‘in your face’ judge. He’s not afraid to ruffle feathers,” said Loyola University law professor Laurie Levenson. Formerly a prosecutor in the U.S. attorney’s office, Levenson admits that her assessment of Reinhardt is fonder now that she teaches law than it was when she practiced it on behalf of the government.

“It can strike fear into your heart to know you have drawn Reinhardt,” she said, referring to the rotating three-judge panels that hear cases in the 9th Circuit.

Another prosecutor, who asked not to be named, questioned Reinhardt’s fairness.

“He is a very bright man, but he has an agenda, and he goes to great lengths to carry it out. Is that what you want in a judge?” the prosecutor asked.

Ten years ago, a written profile included an anonymous jab from an attorney deriding Reinhardt as “the Rose Bird of the 9th Circuit” for his tendency to rule for criminal defendants and death row inmates. But Reinhardt, whose opinions are thorough, scholarly and well-written, wins grudging praise even from the leading Republican appointees on the 9th Circuit.

“Steve is the hardest-working judge I’ve known. I like to sit with him because he elevates the debate,” said Judge Stephen Trott of Boise, Ida.

“He’s an unreconstructed liberal. He thinks constitutional rights have no horizon. But he is a tough adversary. You can’t dismiss his arguments lightly,” said Judge Alex Kozinski.

Reinhardt extends his influence throughout the 28-member appeals court by frequently urging a full-court review of rulings by three-judge panels. The result is that an unusual number of cases become a battle royale between the liberal and conservative factions.

For example, Arizona’s English-only rule was struck down on a 6-5 vote, with Reinhardt speaking for the majority and Kozinski writing a dissent.

The Constitution speaks for a nation “that has prided itself on welcoming immigrants with a spirit of tolerance and freedom. . . . Courts must be vigilant to protect” their rights, Reinhardt wrote on behalf of the Spanish-speaking employees who challenged Arizona’s English-only rule.

In dissent, Kozinski wondered how a state employee had the right to defy the wishes of the citizens who employed her.

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Reinhardt’s father, Gottfried, was a screenwriter, director and producer whose films included “The Red Badge of Courage.” His grandfather, Max, was a legend in the theater who fled Nazi Germany and gained acclaim here for his production of “A Midsummer Night’s Dream” at the Hollywood Bowl. And Reinhardt is married to Ramona Ripston, head of the American Civil Liberties Union of Southern California.

The judge says the horrors of the Nazi era helped shape his unshakable conviction about the need for vigilance in upholding basic human rights.

In a recent speech to a graduating law class, Reinhardt said, “You must remember at all times that you have a particular responsibility to see that fairness and justice are done and that equal treatment under the law prevails.”