Those who value the judicial craft for its range of creative possibilities will look on the Reinhardt-Kozinski era as the heyday of the 9th Circuit, and perhaps of the U.S. appellate judiciary. We will not see their likes again.
The death of Judge Stephen Reinhardt, 87, last week marks the end of an era for the U.S. Court of Appeals for the 9th Circuit, which also saw the abrupt retirement of Judge Alex Kozinski in December. For more than three decades, the nation’s largest appeals court had been the site of an epic legal struggle between the progressive liberal lion and the conservative-libertarian stalwart.
The two judges, each brilliantand each at the extreme end of the ideological spectrum, fought with all the judicial tools available — and even invented some new ones. Their rivalry defined the 9th Circuit, at least from the perspective of the appellate lawyers who actually care about what appeals courts do. It won’t be the same again.
Reinhardt was a throwback to an era of openly activist liberal judges — a one-man embodiment of the Warren Court. He graduated from Yale Law School in 1954, was close to Los Angeles Mayor Tom Bradley and California Governor Jerry Brown, and was named to the Court of Appeals by President Jimmy Carter. Reinhardt was politically astute, sophisticated and connected — the opposite of an isolated, monk-like judicial figure.
His decisions, which tended to read the case law in the most liberal way possible, were frequently reversed by the Supreme Court. Reinhardt would’ve preferred to win — but he certainly saw his reversal rate as evidence he was holding up progressive values as the Supreme Court became more conservative.
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In contrast, Kozinski was the enfant terrible of judicial conservatism. He was 35 when President Ronald Reagan put him on the 9th Circuit, and he remained the provocateur even after he became chief judge in 2007. Despite his retirement after accusations of sexual misconduct, it would be an error to ignore his influential body of judicial work in the conservative and libertarian line.
Most important for understanding the way the 9th Circuit worked, both judges perused every syllable of the court’s every judicial opinion.
This practice stemmed from the rule of appellate judging known as circuit precedent: All the court’s judges follow the same understanding of the law.
Because appeals court judges sit in panels of three, there’s the possibility that a panel will deviate from binding precedent in the circuit. When a question has never been presented to the court before, the first panel to hear it sets precedent.
Given these complicated rules, both Reinhardt and Kozinski policed all the court’s judgments. They each often called for review by a broader body: the 9th Circuit sitting “en banc.” The larger panel could change precedent.
Both judges excelled at the internal memorandum by one judge to the rest of the court calling for rehearing en banc. These internal memos were the war cry of the 9th Circuit, summoning the clans to battle.
Exchanging these memos with each other and their colleagues, Reinhardt and Kozinski never let anyone forget for a minute that the 9th Circuit was ground zero of the struggle between left and right. They drove each other to heights of jurisprudential creativity.
Those who prefer judicial minimalism may argue their exchanges made the 9th Circuit into a place of alternating extremisms.
But those who value the judicial craft for its range of creative possibilities will look on the Reinhardt-Kozinski era as the heyday of the 9th Circuit, and perhaps of the U.S. appellate judiciary. We will not see their likes again.