9th Circuit Judge Sets Standard for Liberal Activism
By Jeff Johnson
CNSNews.com Senior Staff Writer
November 17, 2005
(CNSNews.com) - The "right to privacy," which liberals maintain is implied in the U.S. Constitution and which was used by the U.S. Supreme Court to legalize abortion in 1973, apparently mattered little to Judge Stephen Reinhardt of the Ninth U.S. Circuit Court of Appeals earlier this month when he ruled on a case involving parental rights.
On Nov. 2, Reinhardt wrote the Ninth Circuit Court's decision declaring that the "right to privacy" did not apply to parents who wanted to prevent public school officials in Palmdale, Calif., from giving their elementary school age children a sexually explicit survey. The ruling is but one of many that Reinhardt's critics say qualifies him as one of the most liberal and activist judges in the nation.
It also provided more ammunition for the many conservatives who want to see the Ninth Circuit Court, which currently has jurisdiction over nine Western states, plus Guam and the Northern Mariana Islands, split up.
"Parents have a right to inform their children when and as they wish on the subject of sex," Reinhardt wrote in Fields v. Palmdale School District. "They have no constitutional right, however, to prevent a public school from providing its students with whatever information it wishes to provide, sexual or otherwise, when and as the school determines that it is appropriate to do so."
'The poster boy for judicial irresponsibility'
Reinhardt, a former Democratic National Committee member and labor lawyer, has been labeled by media critics "the poster boy for judicial irresponsibility," "one of the premier judicial activists on a court notorious for its judicial activism" and "the nation's most provocatively liberal judge." Seven decisions that Reinhardt either wrote or supported in were unanimously overruled by the U.S. Supreme Court in a single year.
Among his better known decisions, Reinhardt:
* ... agreed that the phrase "under God" in the Pledge of Allegiance was unconstitutional;
* ... found a "right to die" in the Constitution;
* ... overturned Alaska's sex offender registry law because a registrant would suffer the "ostracism that would accompany his being publicly labeled a sex offender;"
* ... ruled that the Second Amendment, which states in part "the right of the people to keep and bear arms shall not be infringed," does not recognize a right of individual citizens to own guns, but of state governments to arm "militias."
Critics say those decisions, and hundreds of others like them, come from Reinhardt's foundational belief that "liberal" equals "good."
"How can you tell a judge is a liberal?" Reinhardt asked law students during a speech at Georgetown University. "Liberal judges believe in a generous or expansive interpretation of the Bill of Rights. We believe that the meaning of the Constitution was not frozen in 1789; that, as society develops and evolves, its understanding of constitutional principles also grows.
"We believe that the Founding Fathers used broad general principles to describe our rights," Reinhardt continued, "because they were determined not to enact a narrow, rigid code that would bind and limit all future generations."
In Balint Vazsonyi's book, "America's Thirty Years War," the concert pianist and senior fellow of the Potomac Foundation analyzed what he called Reinhardt's "incompatibility with the American model.
"The 'law' is what his political agenda calls for," Vazsonyi wrote.
"The Founding Fathers didn't use broad general principles. They wrote a Constitution of laws. In the first ten amendments, they specified rights," Vazsonyi continued. Judge Reinhardt's description of rights "reveals either that he has not the slightest idea of what rights are, or that he has taken it upon himself to redefine the concept of rights as well as the U.S. Constitution."
Reinhardt is not shy either about trying to influence other judges. In 1994, he urged then-Supreme Court nominee Stephen Breyer to "do justice, not just administer law," if confirmed. Regarding the Constitution, Reinhardt wrote to Breyer that he should "Carry on the work of the court's great progressive thinkers.
"It was progressive justices with a view of the Constitution as a living, breathing document who gave full measure to that instrument," Reinhardt wrote, "not the legal technocrats, not those whose view of the Constitution was frozen as of 1789.
"When lawyers and judges adhere too rigidly to legal rules," according to Reinhardt, "they lose sight of the broader purposes for which those rules were created: to do justice."
Reinhardt's conservative Ninth Circuit colleague, Judge Diarmuid O'Scannlain, holds a more literal view of the nation's premier legal document.
"If the text of the Constitution does not preclude the government's action, the judge must uphold it," O'Scannlain wrote in an essay about government property seizures, published on the website open-spaces.com. "He must do so even if the government's action is patently unfair or plainly inappropriate, for determining that something is 'unfair' or 'inappropriate' without an independent standard for fairness or appropriateness requires an exercise of sheer will. And the power to direct government action pursuant to one's own will is the power that a judge lacks."
When O'Scannlain wrote a scathing dissent of the Ninth Circuit's Pledge of Allegiance decision, Reinhardt's view appeared to at least temporarily change when he lectured his colleague about the necessity of "strict adherence to established constitutional principles."
Criticizing Supreme Court justices and a president
In a 1996 interview with the San Francisco Chronicle, Reinhardt described the conservative members of the high court as "narrow-minded" and "compassionless technocrats." Reinhardt argued that it is the court's majority, not he, whose interpretation of the Constitution is often wrong.
"I follow the law the way it used to be," he claimed, "before the Supreme Court began rolling back a lot of people's rights."
Reinhardt also told the American Bar Association Journal in 1997 that he swore an oath "to uphold the Constitution as I see it," not as he believed the Supreme Court would ultimately rule.
"If they want to cut back on constitutional rights that's their prerogative, but I'm not going to help them do it," he concluded.
In 1995, the New York Times quoted Eleanor "Eldie" Acheson, then in charge of judicial nominations for President Bill Clinton, as saying that the White House hoped to shift the focus away from the philosophy of judicial nominees and toward their legal qualifications. Reinhardt wrote Acheson a three-page, single-spaced rebuke.
"A lesson that too many people seem to forget when they get to Washington is that there has to be a reason for them to be in office," Reinhardt argued. "Are you really seriously saying that you have no interest in which philosophy your appointees have as long as they are otherwise qualified?
"Is there no limit," Reinhardt continued, "to the panic and spinelessness these days?"
Chapman University constitutional law professor John Eastman told Fox News Channel's Bill O'Reilly about the graduation speech Reinhardt gave there in 2001.
"Well, he basically accused anybody who didn't agree with his positions of being not fit to be a member of the bar or a lawyer or violating their oath of office," Eastman recalled. "And on a range of issues, from racial quotas to religion in schools, on the whole list, if you didn't agree with him, then you weren't a proper lawyer, and you ought to just get out of the business."
Eastman was a clerk at the Supreme Court during the 1990s when the justices overturned 28 out of the 29 Ninth Circuit cases they heard in just one session.
Earlier this year, Reinhardt handed conservatives more evidence to accuse him of trying to legislate from the bench. Reinhardt criticized the government's use of the Racketeering Influence and Corrupt Organizations law (RICO) as being "stretched both in scope and meaning far beyond that which Congress originally intended.
"In my view, it is well past the time for our lawmakers to take another look at RICO," Reinhardt wrote, "and (to) consider amending the statute so as to limit it to its original purpose."
Reinhardt shows no signs of slowing down in either his willingness to promote his liberal viewpoint or his alleged encroachment on legislative powers. When reporters ask him about being, arguably, the most overturned federal appeals judge in history, Reinhardt routinely smiles as he notes that the Supreme Court reviews only a handful of the decisions he hands down each year. "They can't catch them all," he says.