A progressive visionary: Stephen Reinhardt and the First Amendment.

• Author: Chemerinsky, Erwin

Stephen Reinhardt is a terrific judge. (1) His opinions are always thorough, well reasoned, and models of clarity. His questions from the bench are focused and reflect his tremendous intelligence and careful preparation. His clerks and former clerks describe the incredibly long hours that he puts in day after day and week after week.

I fear, though, that this excellence gets obscured by the fact that Judge Reinhardt is best known for his ideology. He is regarded by all as a "liberal judge." Although this phrase is never defined, in common understanding it refers to a judge whose opinions protect civil rights and civil liberties, one who tends to favor the individual over the government and the government over business. Put simply, Stephen Reinhardt's judicial philosophy is far closer to the Warren Court than to the Roberts Court.

More subtly and more importantly, however, it is a judicial philosophy based on the view that the Constitution embodies a profound respect for human dignity and that its meaning evolves through interpretation. An illustration of this can be found in Judge Reinhardt's en banc opinion for the Ninth Circuit, later reversed by the Supreme Court, (2) upholding a constitutional right to physician-assisted death. Judge Reinhardt's opinion explained that the matter of life and death was so "central to personal dignity and autonomy" that the Constitution left it to the individual. (3) He wrote:

[B]y permitting the individual to exercise the right to choose we are following the constitutional mandate to take such decisions out of the hands of the government, both state and federal, and to put them where they rightly belong, in the hands of the people. We are allowing individuals to make the decisions that so profoundly affect their very existence--and precluding the state from intruding excessively into that critical realm. (4) Yet, labeling Judge Reinhardt as a "liberal judge" is too simplistic. It obscures the fact that he carefully follows the law and that the majority of his rulings are the same as those rendered by conservative members of his court. Moreover, what is "liberal" and what is "conservative" are, at times, uncertain. In this Feature, I focus on Judge Reinhardt's First Amendment opinions to illustrate the complexity of his judicial philosophy. The first Part of this Feature looks at Judge Reinhardt's opinions concerning freedom of speech. The second examines his opinions concerning the religion clauses of the First Amendment.

Admittedly, focusing on a judge's opinions as a way of understanding his or her judicial philosophy has advantages and disadvantages. Since any appellate judge writes opinions in only a fraction of the cases that he or she hears, this approach ignores the much larger body of decisions where the judge participates. Also, on a court that sits in multimember panels, there is no way to know the extent to which the final opinion reflects the author's personal views, as opposed to a compromise view that was needed to gain a majority. Although these qualifications are important, focusing on the opinions of a judge seems the best way to get a sense of the individual's approach to judging and judicial philosophy.

Looking at Judge Reinhardt's opinions provides a powerful reminder of what should be obvious but is all too often disputed. The ideology of judges inevitably determines how they decide at least some of the cases before them. Contrary to the assertion of now-Chief Justice John Roberts at his confirmation hearings, judges are not like umpires who call balls and strikes. (5) Judges inevitably must balance competing interests--such as freedom of speech and equality--and doing so requires a value choice unlike any that umpires must make. Judges must decide what is reasonable and what constitutes a compelling interest. These determinations are inevitably a product of the judge's own life experiences and ideology. This is why Antonin Scalia or Clarence Thomas--or, on the Ninth Circuit, Diarmuid O'Scannlain or Andrew Kleinfeld--consistently reaches conservative results, while Ruth Bader Ginsburg and Stephen Reinhardt reach liberal ones. The only difference is that conservatives pretend that they are doing something different. (6) Stephen Reinhardt is politically liberal, and inevitably this reality is often reflected in his decisions.

1. SPEECH

   Of all of Judge Reinhardt's opinions on speech, two seem to reflect best his approach to judging, generally, and to the First Amendment, in particular. In one, Ceballos v. Garcetti, (7) he authored an opinion supporting the free speech claim of a government employee only to be narrowly reversed, 5-4, by the Supreme Court. (8) In the other, he wrote an opinion rejecting the free speech claim of a student and upholding the authority of a school to prevent a student from wearing a T-shirt that contained a message condemning gays and lesbians. (9) These two cases involved important, though very different, aspects of the First Amendment. Looked at together, they reveal a great deal about the judicial philosophy and approach of Stephen Reinhardt.

   1. Ceballos v. Garcetti

      Richard Ceballos, a supervising district attorney in Los Angeles County, concluded that a witness in one of his cases, a deputy sheriff, was not telling the truth. He wrote a memo to this effect but was told by his supervisor to soften its tone and content. Ceballos refused and felt that he was required by the Constitution to disclose the memo to the defense; under Brady v. Maryland, (10) prosecutors are compelled to turn over to the defense evidence that might show the defendant's innocence or that can be used to impeach prosecution witnesses.

      Ceballos said that, as a result of his memo, his employers retaliated against him by transferring him to a less desirable position and denying him a promotion. The Ninth Circuit, in an opinion written by Judge Reinhardt, concluded that under longstanding Supreme Court precedents, Ceballos's speech was protected under the First Amendment because it involved a matter of public concern and because Ceballos's free speech interests outweighed the government's interest in promoting workplace efficiency. (11) Judge Reinhardt, writing for the court, explained:

      In short, that Ceballos prepared his memorandum in fulfillment of a regular employment responsibility does not serve to deprive him of the First Amendment protection afforded to public employees. Not only our own precedent, but sound reason, Supreme Court doctrine, and the weight of authority in other circuits support our rejection of a per se rule that the First Amendment does not protect a public employee simply because he expresses his views in a report to his supervisors or in the performance of his other job-related obligations. (12) Although the Ninth Circuit carefully and correctly applied the law, (13) the Supreme Court reversed in a 5-4 decision with Justice Kennedy writing a majority opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito. (14) The Court drew a distinction between speech "as a citizen" (15) and speech as a public employee; the Court said that only the former is protected by the First...