Remembering Judge Stephen Reinhardt, the Ninth Circuit’s ‘liberal lion,’ and my friend

Among my fondest memories of Judge Stephen Reinhardt are the many times that he and his wife, Ramona Ripston (the long-time director of the ACLU of Southern California), came to our house for a Passover Seder. This holiday, which begins tonight, is ultimately about freedom. Stephen and Ramona, as much as any people I have ever known, were dedicated to protecting freedom and to interpreting the Constitution to safeguard the rights and liberties of every person.

Reinhardt, who died on Thursday at 87, served for 38 years on the United States Court of Appeals for the Ninth Circuit. I admired him enormously as a judge and as a person. Yet sometimes we disagreed and he was never hesitant to let me know.

A few months ago, after the resignation of his Ninth Circuit colleague and dear friend, Alex Kozinski, I wrote a column in this newspaper urging better processes to deal with judicial misconduct and judges who no longer were capable of performing their duties. Reinhardt sent me a blistering email disagreeing with the need for more oversight of federal judges and lamenting the problems that would cause.

I thought that Reinhardt should have taken senior status during the Obama presidency, which would have allowed Barack Obama to pick his successor. Reinhardt still would have been able to serve as a judge, but would not have been allowed to participate in the “en banc” process whereby the entire court can review the decisions of a particular panel.

I gently raised this with him and he was adamant that he did not want to give up the ability to part of the “en banc” process. This now will mean that President Donald Trump will get to replace him, almost certainly with someone whose judicial philosophy is the antithesis of Reinhardt’s.

Reinhardt was an unabashed liberal. 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. Reinhardt’s judicial philosophy was like that of the Warren Court, but he served his entire 38 years as a judge with a Supreme Court that had a majority of justices appointed by Republican presidents.

It meant that sometimes his decisions were overruled. In a case coming from Elk Grove, he was part of the panel that found that the words “under God” in the Pledge of Allegiance to be unconstitutional. He wrote a number of opinions that were reversed by the Supreme Court finding death sentences, including from California cases, to be unconstitutional.

One of his most important opinions, also reversed by the Supreme Court, declared unconstitutional a Washington state law prohibiting aiding and abetting a suicide. Reinhardt’s opinion found a constitutional right to physician-assisted death and explained that the matter of life and death was so “central to personal dignity and autonomy” that the Constitution left it to the individual.

Sometimes the Supreme Court ultimately agreed with Reinhardt, such as in declaring unconstitutional laws prohibiting same sex marriage. Reinhardt wrote the Ninth Circuit’s decision striking down California’s Proposition 8, which amended the state constitution to provide that marriage had to be between a man and a woman.

It is too easy to see Reinhardt as a liberal judge in a liberal state. During his time on the Ninth Circuit, California’s governors included George Duikmejian, Pete Wilson, and Arnold Schwarzenegger. For most of this time, a majority of the justices on the California Supreme Court were appointed by Republican governors.

I also worry that his reputation as a liberal obscures the fact that he was a terrific judge. His opinions were always thorough, well-reasoned, and models of clarity. His questions from the bench were focused and reflected his tremendous intelligence and careful preparation. His clerks and former clerks – some of whom had been my students – describe the incredibly long hours that he put in day after day and week after week.

The Ninth Circuit and the country lost a terrific judge on Thursday. Ramona lost a husband who was so touchingly dedicated to her, as he was to his children and grandchildren. I will so miss him.

Erwin Chemerinsky is dean and professor of law at the UC Berkeley School of Law. He can be reached at echemerinsky@law.berkeley.edu.

This story was originally published March 30, 2018 at 2:15 PM with the headline "Remembering Judge Stephen Reinhardt, the Ninth Circuit’s ‘liberal lion,’ and my friend."