Sneaking Habeas Through The Ninth

Maybe the idea began as a memorial, an homage, to Judge Stephen Reinhardt, one of the “liberal lions” (with sober driving skills) of the Ninth Circuit. But Linda Greenhouse just couldn’t do it without making it about politics. Her politics.

I heard that Judge Reinhardt had given a speech in which he criticized me for naïve and muddled thinking: How could I depict as in any way moderate a Supreme Court with William H. Rehnquist as chief justice and with Clarence Thomas sitting in Thurgood Marshall’s seat? Never having had any contact with Judge Reinhardt, I wrote to him, inviting him to tell me directly what he had told his audience. He replied that he was about to visit Washington and would take me to lunch.

Greenhouse’s thinking being “naive and muddled” is nothing new, which explains why she writes for the New York Times and teachers at Yale Law School. But moderate?

During our conversation in the elegant dining room of the Hay-Adams Hotel, the source of our difference became clear. It was a matter of baseline. The baseline against which I was measuring the court was the devastation that most liberals had been expecting given that appointees of Presidents Ronald Reagan and George H. W. Bush now made up a majority of the justices. For Judge Reinhardt, the baseline was the court’s liberal golden era under Chief Justice Earl Warren. And from his perspective, he was completely right.

Greenhouse doesn’t say when this lunch took place, but it would seem to be during the Clinton administration. Why? Because Bill Clinton signed the the Antiterrorism and Effective Death Penalty Act of 1996 into law, which effectively eviscerated habeas corpus, and that was one of Judge Reinhardt’s great concerns.

The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era. Once hailed as the Great Writ, and still feted with all the standard rhetorical flourishes, habeas corpus has been transformed over the past two decades from a vital guarantor of liberty into an instrument for ratifying the power of state courts to disregard the protections of the Constitution.

To Judge Reinhardt, the blame wasn’t directed at Clinton, or Congress, for doing what politicians are wont to do, enact unwise laws and undermine the Constitution to pander to popular whim. For Judge Reinhardt, the problem was a Supreme Court that took the ball and ran with it.

In this age of calls for the near-total abolition of habeas and scathing rebukes of judges who fail to toe the not-so-hidden party line, it is easy to lose sight of how we got here. It is convenient to blame it on inevitable historical or jurisprudential trends, or to insist that it followed necessarily from passage of the Antiterrorism and Effective Death Penalty Act  (AEDPA). One can then proclaim that there is no reasonable alternative to the Supreme Court’s present construction of that statute, even though any participant in our habeas regime would have to agree that it resembles a twisted labyrinth of deliberately crafted legal obstacles that make it as difficult for habeas petitioners to succeed in pursuing the Writ as it would be for a Supreme Court Justice to strike out Babe Ruth, Joe DiMaggio, and Mickey Mantle in succession—even with the Chief Justice calling balls and strikes.

Greenhouse didn’t get it. She doesn’t still.

When Stephen Reinhardt, the famously liberal judge who died last month after 37 years on the federal appellate bench, visited Yale Law School a few years ago, a student asked him what the point was of issuing decision after decision that the Supreme Court would predictably overturn. The question was a challenge, but Judge Reinhardt took it with a smile. “They can’t catch ’em all,” he said.

Greenhouse expresses her naive and muddled thinking.

I didn’t know then that this was Judge Reinhardt’s stock answer to a frequent question, and it startled me; the judge’s tone may have been mild, but his stance was one of open resistance, defiance even, toward a Supreme Court that was moving ever further to his right.

But was Judge Reinhardt’s quip about “open resistance, defiance even”? Or was it about the Constitution, and his duty as a circuit judge to rule in the way the Constitution demanded? Would he have refused to lunch with Justice Thomas or former C.J. Rehnquist because they were deplorable?

There is a perpetual conflict between the norm of precedent, which is demanded by the Supreme Court if not the Constitution, and adherence to the principles of the Constitution as a matter of duty. Judge Reinhardt used his position to challenge what he understood to be rulings that were contrary to the mandate of the Constitution. He could do no less, and took his chances. The Supreme Court regularly paid him back for his efforts with reversals, but so what?

“They can’t catch ’em all.”

Judge Reinhardt could only rule as he understood the Constitution to require of him. And if the Supremes saw it differently, they could reverse him. It wasn’t his job to appease his superiors as much as maintain fealty to constitutional principles, regardless of party or ideology. Judge Reinhardt didn’t resist, a word that’s unfortunately popular amongst people of Greenhouse’s naive and muddled ilk, but persisted to honor the rights embodied in the Constitution despite knowing that his view might not prevail.

This may be a highly nuanced distinction, but in honor of Judge Reinhardt’s memory, it’s one worth making. It’s one that the naive and muddled are unable to grasp.

10 thoughts on “Sneaking Habeas Through The Ninth

  1. Richard Kopf


    Yes, the distinction is highly nuanced. It is also extremely important.

    At least in Constitutional cases, Justice Clarence Thomas and Judge Reinhardt are soul mates when it comes to their view of precedent. For both, the Constitution always trumps precedent. While one was a Circuit Judge and the other is a Justice neither one was or is a member of some ill-defined politically driven cause.

    The Judge and the Justice never saw their work through the lens of politics. Ms. Greenhouse, on the other hand, sees politics in all things judicial. The problem is that she suffers from cataracts.

    All the best.


    1. SHG Post author

      Unfortunately, Greenhouse has a bigger soapbox, and thus gets to spread her muddled thinking farther and wider than Judge Reinhardt could.

      1. Brian Cowles

        For now, certainly. In the long run, however, that may change. Judge Learned Hand is better known these days than, say, Arthur Krock.

        1. SHG Post author

          The name isn’t what concerns me. It’s the readers who believe the judiciary is infected with rank political hacks who do the bidding of their party masters.

  2. Jim Tyre

    Briefly, Greenhouse mentions Rizo v. Yovino, an en banc decision of the Ninth Circuit. What she doesn’t mention is that the roar of the liberal lion was so loud that he could do what no SCOTUS Justice has ever done: he could speak for his court from the grave. He spoke for the majority, with the written decision including this footnote:

    * Prior to his death, Judge Reinhardt fully participated in this case
    and authored this opinion. The majority opinion and all concurrences
    were final, and voting was completed by the en banc court prior to his

    1. SHG Post author

      Yes, we know. Yet it has nothing to do with the post. Yes, you know. That’s what makes you so fascinating.

  3. B. McLeod

    Of course, lower courts do occasionally engage in rulings that buck precedent, just as parties make arguments and file cases seeking to undermine precedents. Because these are the only ways precedents can be changed. Times change and the composition of the Supreme Court changes, and part of the art of law is having a sense of when an adverse precedent may be vulnerable. Plus, there is much to be said for the basic oath of the lower judges being the same as that of the justices, and the practical reality is that many of them are in fact both more experienced and more intelligent than the justices who have managed to navigate the political seas to make their way to the Supreme Court.

  4. Bartleby the Scrivener

    This may well be my favorite of all your writings I’ve seen, and it makes a beautiful point. I’d never thought of lower court rulings this way, and really appreciate it this mindset. An internet first – I’m convinced.

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