Supreme Court Justice Thurgood Marshall used to say that they would have to “carry [him] out on a stretcher” before he would leave the judiciary. Health problems forced Marshall off the court in 1991, but his intention to serve until the very end held true for Judge Stephen Reinhardt, another giant of the law, who died unexpectedly on Thursday at age 87.
A liberal of the old school, Judge Reinhardt was named to the U.S. Court of Appeals for the 9th Circuit in 1980, the last of President Jimmy Carter’s judicial appointees. Reinhardt was proud of the fact that at the end of a long and painful set of confirmation hearings, only far-right Sens. Strom Thurmond and Orrin Hatch voted against him.
I was lucky to have worked for Judge Reinhardt as a clerk after I graduated from law school, drafting legal memos and opinions and gaining something of a work ethic in the process. The other clerks and I spent extremely long days in the office, including Saturdays, as a rule, but so did the judge. If the job was grueling for twentysomething law clerks like myself, who did it as a sort of one-time, yearlong marathon, imagine how it was for a man beyond normal retirement age. Then take that effort and repeat it 38 times.
Judge Reinhardt had tremendous drive. He once told one of my fellow law clerks that he feared the man was “not unhappy enough” to live up to his potential. I believe the judge was warning against complacency, a quality that he utterly lacked.
It was outrage against injustice that fueled Judge Reinhardt’s rulings, and he had a seemingly inexhaustible supply of it. During his nearly 38 years on the bench, he authored important opinions on prison conditions, racial and gender discrimination, immigration, and lesbian and gay rights, among others. He led the en banc panel that struck down Arizona’s English-only law in 1995, a ruling that was later reversed by the U.S. Supreme Court. He upheld the “right to die” in a landmark 1996 case.
The common thread running through his jurisprudence was a concern for the rights of the downtrodden, the disenfranchised, and the less powerful. Many called Reinhardt the most liberal judge in America.
But Reinhardt not a radical; he was a classical liberal. He believed strongly in freedom of opinion, of speech, and of association, and although he could be cynical—or at least realistic—about how public policy was crafted, he trusted the power of open debate. He saw lawyers’ truest vocation as fighting for the unprivileged, and he was cheered when they lived up to the moral demands of their calling. He was immensely proud of former law clerks who went on to lead careers in civil and human rights.
His views were sometimes out of step with those of his 9th Circuit colleagues, but he managed to garner a majority for his favored outcome in a surprising number of cases. I always suspected that he persuaded other judges, including quite conservative judges, through sheer force of personality. But he also worked harder than anyone else, and he knew the law better than anyone else.
He put as much effort into crafting memos to other judges as he put into writing judicial opinions. The words he used and the arguments he built reflected his honest understanding of the law, but they were also eloquent, smart, and strategically chosen, meant to sway their audience.
Judge Reinhardt was the ideal editor: tireless, meticulous, and heartless when it came to correcting clichéd language, weak analysis, and faulty logic. He wrote in pen, slashing out words and paragraphs, sometimes making a sarcastic comment in the margins. No one before or since has read my prose with such care.
His jurisprudential successes made him notorious among conservatives and the right-wing media. He was the judge whom conservatives loved to hate, embodying a host of detested liberal values. To them, he was an activist who ruled against them on core articles of faith, including gun control and the Second Amendment. It probably didn’t help that he was married to Ramona Ripston, the longtime executive director of the ACLU of Southern California, another larger-than-life liberal figure.
The National Review wrote about Judge Reinhardt in terms more befitting a riotous youth than an elderly jurisprude, accusing him of “wiliness and mischief” and “arch-activis[m].” The Weekly Standard, another nonadmirer, called him “the liberal badboy of the federal judiciary” and “the judge the Supreme Court loves to overturn.” On the latter point, they were objectively correct: There were often four or fewer votes on the high court in support of Judge Reinhardt’s views rather than the necessary majority.
But it would be wrong to conclude that Judge Reinhardt disrespected the law or ignored it to reach a desired outcome. Judge Reinhardt strove for justice when the law offered the opportunity for it. He took advantage of the law’s flexibility, but he did not see the law as infinitely malleable, and he respected its constraints. Some of his most compelling judicial concurrences are those in which he explained why he could not, because of the governing rules, reach a fairer result.
Besides his many landmark opinions, Reinhardt’s former law clerks may be his most enduring legacy. They include Thomas Saenz, the president of the Mexican American Legal Defense and Educational Fund; Heather Gerken, the first female dean of Yale Law School; Ben Wizner, the director of the ACLU’s Speech, Privacy, and Technology Project; and Peter Eliasberg, chief counsel for First Amendment rights at the ACLU of Southern California. Their work is no doubt still enriched by the skills and strategies they learned as clerks.
One factor that may have helped keep Judge Reinhardt in his job until the end of his life was the fear of who might be chosen to replace him. Acutely aware of the politics of the confirmation process, I don’t think he trusted any president since Carter to nominate a true liberal.
When Thurgood Marshall stepped down from the Supreme Court, President George H.W.
Bush picked Clarence Thomas to replace him, a willfully offensive choice whose vision of the law fundamentally opposes Marshall’s and whose harms continue to this day. One can only hope beyond hope that in picking Judge Reinhardt’s replacement, Donald Trump does not follow suit.
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