//  4/6/18  //  Commentary

Cross-posted from Dorf on Law

John Hart Ely dedicated his extraordinarily influential 1980 book on judicial review, Democracy and Distrust, to Chief Justice Earl Warren. “You don’t need many heroes,” Ely wrote, “if you choose carefully.”

Ely was Warren’s law clerk and built his theory of judicial review around a particular conception of the jurisprudence of the Warren Court, one that Ely characterized as “representation reinforcing.” As Ely saw it, the Warren Court never abandoned the core lesson taught by the experience of the first third of the twentieth century: that courts ought generally to defer to democratic outputs. To Ely, the constitutional doctrines most closely associated with the Warren Court—especially racial equality, one-person-one-vote, and robust protection for freedom of speech—were relatively small correctives to be used by judges only when the democratic machinery misfired. They were in the foreground set against a background rule of judicial deference to political actors.

There was a good deal that was right about Ely’s understanding of the Warren Court, but it was somewhat bloodless and thus incomplete. The Warren Court’s project was not simply a matter of patching holes. It was also about justice.

For example, Ely thought non-deferential judicial review of racially discriminatory laws was justified on the ground that racial prejudice often prevents racial minority groups—especially African Americans—from taking advantage of the normal give and take of interest group bargaining. That was a fair point, but it overlooked the driving moral force of the Warren Court’s race cases: racial prejudice was (and remains) an affirmative evil and thus rooting it out was (and remains) an affirmative good.

I got to know Ely late in his life and grew very fond of him. I continue to regardDemocracy and Distrust as an outstanding intellectual achievement. But I never saw it as a full account of the Warren Court, perhaps because I also have a hero for whom I served as a law clerk: Judge Stephen Reinhardt of the US Court of Appeals for the Ninth Circuit, who passed away last week. I long regarded him as the Chief Justice of the Warren Court in exile, because Reinhardt kept alive the vision of the Constitution and the law more broadly as instruments of justice that made the Warren Court distinctive.

Law and Justice

There is a famous story about an encounter between Judge Learned Hand—probably the most esteemed federal appeals court judge never elevated to the Supreme Court—and Justice Oliver Wendell Holmes, Jr. In Hand’s original version of the tale (subsequently altered in various ways by many others in the retelling), Hand ends a conversation with Holmes by saying “Well, sir, goodbye. Do justice!” Holmes replies “That is not my job. My job is to play the game according to the rules.”

Playing by the rules—that is to say, following Supreme Court precedent—sometimes led Judge Reinhardt to cast votes he knew to be unjust. For example, when the armed forces were categorically excluding gay and lesbian service members, Judge Reinhardt recognized that the policy was wrong. Indeed, he saw that it violated the constitutional principle of equal protection. Yet he felt that playing by the rules meant voting contrary to his own views. He wrote in a 1988 case:

Were I free to apply my own view of the meaning of the Constitution and in that light to pass upon the validity of the Army’s regulations, I . . . would conclude that the Army may not refuse to enlist homosexuals. I am bound, however, as a circuit judge to apply the Constitution as it has been interpreted by the Supreme Court and our own circuit, whether or not I agree with those interpretations. Because of this requirement, I am sometimes compelled to reach a result I believe to be contrary to the proper interpretation of constitutional principles.

Judge Reinhardt expressed the same view nearly thirty years later. Last fall, in reluctantly upholding the Trump administration’s cruel decision to deport an undocumented immigrant who had been a productive member of society for 28 years and is the father of three US-citizen children, Judge Reinhardt wrote: “We are compelled to deny Mr. Magana Ortiz’s request for a stay of removal because we do not have the authority to grant it. We are not, however, compelled to find the government’s action in this case fair or just.” He concluded: “I concur as a judge, but as a citizen I do not.”

These and numerous other decisions by Judge Reinhardt belie the calumnious charge that conservatives have sometimes leveled against him—that he substituted his own views of justice and morality for the law. The charge is false. Judge Reinhardt appreciated the distinction that Holmes drew. He understood that playing the game by the rules sometimes meant that he could not do justice.

Unwilling to do the Supreme Court’s Dirty Work

That is not to deny that Judge Reinhardt’s opinions, concurrences, and dissents staked out a distinctly liberal position. A former union-side labor lawyer, Democratic party activist, and civilian reviewer of the Los Angeles police, upon becoming a judge Reinhardt no more “strip[ped] down like a runner,” as Clarence Thomas disingenuously put it during his Supreme Court confirmation hearing, than have more conservative jurists. Judge Reinhardt’s votes to grant death-sentenced prisoners’ habeas corpus petitions, protect dissident speech, stay deportation orders, and keep official religious exercises out of the schools were the product of his values, but no more so than contrary votes by conservative judges and justices are the product of theirs.

Why, then, have so many of Judge Reinhardt’s critics insisted on seeing him as result-oriented or even lawless? The answer, I think, is that the critics misapprehend the job of a lower court judge.

Aware that he had a relatively high reversal rate in the cases the Supreme Court chose to review, Judge Reinhardt sometimes would say that they—the Supreme Court justices—can’t reverse them all. Critics misunderstood him to mean that he was therefore intentionally defying the Supreme Court. USC Law Professor Orin Kerr appeared to labor under this misunderstanding when he wrote that “Reinhardt writes like there is no Supreme Court, and as a result his opinions have a remarkable ability to annoy the Justices.”

No doubt Judge Reinhardt did annoy many of the justices, but not because he ignored the work of the Supreme Court. Judge Reinhardt wrote and decided cases based on his best understanding of the Supreme Court precedents already on the books. He saw no reason to do the Supreme Court’s dirty work of undercutting those precedents. And he was right about that. Indeed, it would violate the Supreme Court’s own instructions for a federal appeals court judge to base his decisions on what he thinks the Supreme Court will do in the future, rather than the law as it currently exists.

Yet once one recognizes how the law has developed since the end of the Warren era, it becomes clear that Judge Reinhardt was faithful to it. In an insightful 1996 article, Harvard Law Professor Carol Steiker observed that the Burger and Rehnquist Courts had left the constitutional rules of criminal procedure propounded by the Warren Court largely intact, but had undermined the impact of those rules by formulating and expanding a wide variety of exceptions and limits on judicial remedies. The observation holds beyond criminal procedure and has persisted into the Roberts Court era. To a remarkable degree, almost five decades after Earl Warren retired from his seat as chief justice, Warren Court precedents define basic constitutional doctrines, even as the Burger, Rehnquist, and Roberts Courts have chiseled away at their effectiveness in achieving the substantive aims of those doctrines.

A lower court judge committed to the values of the Warren Court and to the rule of law will thus find himself being frequently overruled by a Supreme Court moving the law to the right. And that is exactly what happened to Judge Reinhardt. When he said that the Supreme Court can’t reverse all of his decisions, he meant that the Supreme Court will not be able to wrongly reverse all of his decisions, not that he would defy the Court’s rulings.

A Master Craftsman

In her 2010 tribute, Yale Law School Dean Heather Gerken (another former Reinhardt clerk) explained that when former Reinhardt clerks assemble, we tell “judge stories” about Reinhardt’s work ethic and eccentricities. She also noted that Judge Reinhardt did not just write the landmark opinions in high-profile cases for which he is well-known; “his real legacy lies in the small cases, the ones involving people who are almost invisible to most of us . . . but not to him.” That is certainly true, but I hasten to add that Judge Reinhardt cared deeply about every case he heard. I can illustrate with a brief judge story of my own.

During the course of my clerkship with Judge Reinhardt, I worked on my share of high-profile cases—including two that were subsequently reversed by the Supreme Court. I also worked on the kinds of “small cases” that Dean Gerken describes. But the case I remember best was neither a landmark case nor a small one. It was a complex multi-million-dollar commercial real estate dispute involving federal bankruptcy and evidence law as well as California contract law.

The case raised no issues of transcendent importance or of fundamental justice. Yet one would never guess that from the amount of work Judge Reinhardt (and, at his insistence, I) put into it. We spent countless hours with the briefs and our own legal research. We went through at least a dozen drafts before Judge Reinhardt was satisfied that he fully understood the issues and that the panel was resolving them correctly. Why? Because Judge Reinhardt did all of his work to the highest possible standard. He brought to bear the full force of his intellect on every case that came before him.

Judge Hand’s story of the admonition from Justice Holmes is meant to indicate the difference between law and justice. They are different, but they can—and in the work of the best jurists usually do—overlap.

My little story is meant to indicate the limits of another dichotomy: between passion and reason. We sometimes talk as though a kind heart indicates an empty head. Passion and reason, or, if you prefer, kindness and intellect, are distinct faculties, but they can—and in the work of the best jurists they usually do—work together.

Judge Reinhardt bridged these gaps more fully than anyone. He did justice without breaking the rules. His reason and his empathy were mutually reinforcing. We will not look upon his like again.


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