Reinhardt Versus Rehnquist: A War Between Two Courts

With a liberal agenda as big as Los Angeles, Ninth Circuit Judge Stephen Reinhardt is waging war with the US Supreme Court.

The controversial judge from Pasadena, Calif., wants American law invigorated with a liberal ethos. He wants more expansive rulings for the poor and immigrants. He talks about ending the death penalty. He supports gay judges. His heroes are Justices William Brennan and Harry Blackmun, not the "legal technocrats" he says the president has appointed to the federal courts.

And this week the Supreme Court did something it often does with rulings from the US Court of Appeals for the Ninth Circuit, especially those authored by Judge Reinhardt - it nullified one.

The conflict between America's highest court and its biggest court - the 28-seat Ninth Circuit - has become more sharp-edged in the past several years. While the Ninth Circuit bench is evenly divided between Republicans and Democrats, its independent-minded Western judges have issued a series of articulate opinions that has forced the Supreme Court to take up controversial topics it might rather avoid.

This year, several tough cases come from the Ninth, including the "right to die" case (another Reinhardt opinion), "English only" laws (this week's nullified ruling), and child-welfare rights.

"This is an interesting Supreme Court year due to a brave judge in California named Reinhardt," says David Cole, a law professor at Georgetown University in Washington.

Certainly, the Ninth Circuit increasingly dominates the attention of the nine justices in Washington. This year, 21 of the 80 cases the Supreme Court will hear are from the Ninth Circuit. The statistic stands out, considering Chief Justice William Rehnquist & Co. have 50 states and 10 federal districts from which to choose their cases.

Of late, the high court nearly always reverses rulings from the Ninth Circuit, which covers nine states in a swath spanning from San Diego to Anchorage to Honolulu. Last year, 10 of 12 Ninth Circuit cases were reversed (Reinhardt was involved in eight of the 10). In 1995, the reversal rate was 14 of 17. Not since 1983, when the Supreme Court famously reversed 24 of 27 Ninth Circuit rulings has the rate been so high.

Now, the high court has taken an unusual step to block Ninth Circuit law. In five instances, including one last week, the high court issued a "per curiam" - which strikes down a ruling without an oral argument, often considered a slap in the face. In last week's per curiam, a terse statement that raised eyebrows among court watchers, the high court implied that the Ninth Circuit simply misread established law in a case involving the Freedom of Information Act.

"It's amazing," says Ninth Circuit expert Arthur Hellman of the University of Pittsburgh law school. "You have a group of independent judges in the Western states that don't just go along with the Supreme Court. They are willing to read the law more generously than judges in other circuits. It is forcing the Supreme Court to think harder. That's important."

One of the most serious contretemps is over the death penalty. Not just Reinhardt, but conservatives such as Judge John Noonan, a Roman Catholic legal scholar, ardently oppose capital punishment. In 1992, in an all-night legal firefight, Ninth Circuit judges issued four stays of execution for one Robert Alton Harris, sitting on death row in San Quentin. The Supreme Court overturned each stay, putting down a challenge to death by cyanide as "cruel and unusual." Afterward, in The New York Times, Judge Noonan, a Reagan appointee, called the members of the Supreme Court to account for "treason to the Constitution."

Yet most Ninth Circuit judges don't think they are unreasonable, or even so liberal. For the most part, here in the Elysian breezes of the Bay Area where the Ninth Circuit is centered, a number of judges and scholars are puzzled by the high court's apparent focus on their rulings. Even conservatives feel the Ninth Circuit is applying previous Supreme Court precedent in many cases that are reversed - especially because most reversals are of panel decisions involving as many as 11 Ninth Circuit judges.

"This isn't some renegade court," says Jesse Choper, law school dean at the University of California, Berkeley. "These aren't sloppy opinions that are being reversed. They are legitimate."

The heart of the Ninth Circuit court resides on Mission Street here, in a stunningly refurbished courthouse. In his redwood-paneled chambers, Chief Judge Proctor Hug notes that the Ninth Circuit hears a greater percentage of cases "that are in new areas, like Alaskan cases on native claims, cases on immigration and the environment. Very few of us have an ideological agenda."

Even so, of the significant reversals the Ninth Circuit has endured, most involved expansions of civil liberties. One reversal last spring involved a Ninth Circuit ruling (again by Reinhardt) that black defendants could introduce evidence of a discriminatory pattern of convictions in crack cocaine cases. The year before, the high court reversed a Ninth Circuit decision that student athletes did not have to provide urine samples for drug-testing.

But the conflict between the high court and the Ninth Circuit cannot be pinned on one liberal judge. Other factors contribute, including the traditionally aggressive state attorneys generals in Washington and California and the fact that three of the Supreme Court justices are from Ninth Circuit states, making the area of special interest to them.

Moreover, as Judge Hug points out, the Supreme Court has upheld his court's rulings on some controversial cases. A recent Ninth Court ruling, on false statements to police in criminal cases, was opposed by every other federal appeals court in the land. Yet the Supreme Court backed the Ninth's decision.

This year, the biggest case before the Supreme Court, undeniably, is physician-assisted suicide. The practice was upheld in both a Washington and a New York case. Reinhardt's ruling in the Washington case went far past the standard pro-euthanasia argument, stating that citizens have a right to "choose the manner" of their own deaths - at whatever time they feel is right, ill or not. At the Supreme Court, during oral arguments on the right-to-die case in December, many justices seemed skeptical of legal suicide.

Now Democrats have four years to make Supreme Court and Ninth Circuit appointments, experts say the split between the two courts is likely to remain. If Justice Rehnquist or Sandra Day O'Connor leaves in the next four years, the Supreme Court balance would likely change in a direction more favorable to Ninth Circuit justices.

In the interim, says Hellman, Ninth Circuit cases may force the Supreme Court to articulate its position in new ways, but in the long run, singling out one adversary may not be a healthy development.

Meanwhile, will Reinhardt, who recently said the Supreme Court needs "at least one justice with vision, with breadth, with idealism," begin to temper his views? Don't count on it, his colleagues say.

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