The Slatest

Stephen Reinhardt, America’s Most Liberal Federal Judge, Has Died

Judge Stephen Reinhardt speaks at an American Constitution Society event.
Judge Stephen Reinhardt speaks at an American Constitution Society event.
American Constitution Society

Judge Stephen Reinhardt, who served on the 9th U.S. Circuit Court of Appeals, died on Thursday at the age of 87, BuzzFeed’s Chris Geidner reports. President Jimmy Carter appointed Reinhardt in 1980; from the start, he championed the legacy of Chief Justice Earl Warren and the civil rights revolution his court oversaw. Reinhardt remained a liberal lion for nearly 40 years, unapologetically defending LGBTQ equality, abortion access, women’s rights, immigrants’ rights, and free expression while opposing capital punishment, mass incarceration, and police brutality. He may have been the most liberal judge in America.

Reinhardt emphatically rejected originalism, the theory that the Constitution’s meaning was fixed at the time of its ratification. Instead, he applied the Constitution’s broad principles of liberty and equality to bring justice to those whom society despised or disregarded. Though Reinhardt had an unabashedly bleeding heart, he was also a cynic and a pragmatist. Brilliant yet unpretentious, idealistic yet hard-bitten, he was adored by his clerks and colleagues, including some with whom he sparred regularly.

The classic Reinhardt opinions involve political and jurisprudential lightning rods. He ruled that terminally ill patients have a constitutional right to end their own lives, though the Supreme Court disagreed. He insisted, in dissent, that the insertion of the phrase “under God” into the Pledge of Allegiance violated the separation of church and state. He held that a federal ban on a common second-trimester abortion procedure unduly infringed on women’s right to choose. (Once again, the Supreme Court reversed his decision.) And he ruled that the Second Amendment does not guarantee an individual right to bear arms six years before the Supreme Court concluded that it did.

Obviously, many of Reinhardt’s watershed decisions fared poorly on appeal. His conservative critics frequently cite this fact as evidence that he was, essentially, a renegade judge. But Reinhardt always followed binding precedent and statutory commands; he simply tried to push the law to the left when he could. When he couldn’t, he did not try to conceal his dissatisfaction. In his last great opinion, issued in May 2017, Reinhardt acknowledged that he could not delay the deportation of Andres Magana Ortiz, an undocumented immigrant who had lived in America for 28 years and had a wife and children who are U.S. citizens. Yet he bemoaned the gratuitous cruelty of the Trump administration’s actions, as well as the judiciary’s complicity in its immigration crackdown:

We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. Indeed, the government’s decision to remove Magana Ortiz diminishes not only our country but our courts, which are supposedly dedicated to the pursuit of justice. Magana Ortiz and his family are in truth not the only victims. Among the others are judges who, forced to participate in such inhumane acts, suffer a loss of dignity and humanity as well. I concur as a judge, but as a citizen I do not.

While Reinhardt could not always achieve the outcome he desired, his legacy is secure in those areas of the law to which he did make lasting contributions. In 2014, Reinhardt struck down same-sex marriage bans in Idaho and Nevada, ruling that they violated the 14th Amendment. He wrote both the majority opinion and a concurring opinion to add a few extra thoughts. And he used the occasion to summarize his judicial philosophy in a few sentences:

We, as judges, deal so often with laws that confine and constrain. Yet our core legal instrument comprehends the rights of all people, regardless of sexual orientation, to love and to marry the individuals they choose. It demands not merely toleration; when a state is in the business of marriage, it must affirm the love and commitment of same-sex couples in equal measure. Recognizing that right dignifies them; in so doing, we dignify our Constitution.

Eight months later, the Supreme Court ruled that the Constitution does, indeed, protect same-sex couples’ right to marry. Much of the court’s opinion sounded remarkably similar to Reinhardt’s earlier concurrence. The judge saw many of his finest rulings reversed. But on this, he was entirely vindicated.