Defense In Memoriam

In Memoriam: Judge Stephen Reinhardt

The Appellate Rule of Lenity

The editors of the Harvard Regulation Assessment respectfully dedicate this concern to Judge Stephen Reinhardt.

Justice Anthony M. Kennedy

As an individual and as a decide, Stephen Reinhardt was dedicated to defending the powerless and the oppressed. In my forty-three years on the bench few, if any, judges with whom it has been my privilege to serve have been extra devoted to the reason for justice.

Steve got here to the bench after my appointment, so he was my junior within the judicial hierarchy; however he was removed from my junior in all different respects. At each session he was remarkably well-prepared. For Steve, no case was small or unimportant. In convention and in his writing he would remind us that our determination would contact an actual individual, and that the regulation should not be so formal or distant that it forgets this.

All the time, we have been shut pals. Steve visited right here a short while in the past. We had not seen one another for some months, and it was thrilling to seek out that his heat and smile and snicker and his ardour for the regulation have been as dynamic as ever. For each of us our friendship was a treasure, a treasure that now stays to show and to information me.

With repeated expressions of profound sorrow, I stay.

* Affiliate Justice, Supreme Courtroom of the USA. This Tribute is tailored from a letter from Justice Kennedy to Judge Reinhardt’s household on April 26, 2018.

Justice Sonia Sotomayor

To explain Stephen in just some phrases shouldn’t be a simple activity when there’s a lot to say, but when pressured to take action, I might say this: Stephen Reinhardt was fiercely loyal.

First, Stephen was fiercely loyal to the regulation. His opinions have been all the time meticulous and exceedingly properly reasoned and nicely supported. I keep in mind as soon as ready with him as we have been preparing for an occasion we have been doing collectively; Stephen was pacing forwards and backwards, mumbling to himself. Once I listened intently, I noticed he was going by means of the authorized challenge in his head: first one aspect of the argument, then the opposite. This went on for some time, till lastly it was time to talk to the viewers. I used to be slightly involved, given what I had simply witnessed: Was he going to mumble like that in entrance of all of those individuals?

However his presentation was clear and forceful. I noticed that his mumbling of the arguments forwards and backwards was his method of creating positive he knew the difficulty inside out. He knew each argument in favor of his place and, most essential, he knew the response to each argument towards it. I think about his writing course of was a lot the identical.

There isn’t any denying that Stephen stored us busy on the Supreme Courtroom. You can’t learn a information story about him with out studying a line or two about how typically our Courtroom reviewed his opinions. However what individuals miss once they say he stored the Supreme Courtroom busy is that every time anybody disagreed with considered one of his sensible opinions, it might take extra-hard work to elucidate the idea for reversal. His loyalty to the regulation ensured that every opinion had a rock-solid basis that was troublesome to interrupt.

Second, Stephen was additionally fiercely loyal to these whose lives are affected by the regulation. He by no means overlooked them. He by no means forgot that we as judges have a very superior duty — not solely to interpret the regulation, which in itself is a weighty cost, however to determine the destiny of so many. And he tried to satisfy that obligation as justly as he might in each case. Whether or not it concerned a multimillion-dollar lawsuit introduced by big-firm legal professionals, or a professional se litigant, he was cautious and thorough all the time. He was an instance to all of us — a reminder that loyalty to the regulation isn’t, and shouldn’t be, divorced from our loyalty to these whose lives we have an effect on via our selections. It isn’t inconsistent to guage together with your head and together with your coronary heart on the similar time.

Third, Stephen was additionally fiercely loyal to his clerk household. Once I joined the Courtroom, he was adamant in his quest to get me to rent certainly one of his regulation clerks. He was persistent, and let me inform you one thing: he didn’t make it straightforward for me. He was one of the crucial irritating recommenders you might ever encounter. Yearly once I referred to as him to ask for his perception right into a candidate, he would say: “All of my clerks are brilliant. They are all my children, and I don’t have a favorite.”

He beloved all of them. Once I lastly did rent considered one of his clerks, I knew instantly that he was proper, and I used to be grateful he was so persistent. The various hours he spent with them arguing about instances and going by means of drafts of an opinion helped form them into the superb legal professionals they’re at present.

I’ve little question Stephen shall be remembered as one of many biggest authorized minds of our lifetimes. Books will speak about his superb mind, his brilliance with phrases, and his willingness to talk out. However I feel considered one of his biggest legacies within the regulation is the clerk household that he has despatched out into the authorized group — the Reinhardt Military, as I’ve heard some name it, which incorporates many sensible legal professionals who have been educated by him and share his ardour for the regulation and for justice. He was so pleased with his clerks. They’ve accomplished, and can proceed to do, nice issues. I’m grateful to him for leaving us that present.

Lastly, Stephen was fiercely loyal to his household and to his pals. Each clerk I’ve met all the time has the identical story to inform about Stephen. He might be in the midst of a heated debate, indignant about one thing or different, but when Ramona or certainly one of his youngsters referred to as, he stopped and answered the telephone with nothing however love in his voice. Any time he spoke about his spouse, youngsters, or grandchildren, you may see him mild up with love and delight.

And he was additionally a faithful and considerate pal. Regardless of how busy he was, he all the time took the time to ship me a word with a suggestion for his newest favourite present in New York or for a film he had simply seen that made him consider me. And naturally, it was all the time a pleasure to speak about our ardour for the Yankees (which I’ll add is yet one more instance of his logic).

Stephen was a very good good friend, and I’ll miss him terribly. I’ll all the time be grateful for the various good moments we shared; for his fearlessness; and for his dedication to the regulation and to justice all of those years on the bench. We now have misplaced one of many giants of our federal judiciary — one who cared deeply about the best way the regulation might form our society and impression our pursuit of justice. Somebody like Stephen can’t be changed. He set an instance for judging that anybody with a ardour for the great within the regulation ought to comply with.

* Affiliate Justice, Supreme Courtroom of america. This Tribute is tailored from remarks delivered at Judge Reinhardt’s memorial service.

Judge David J. Barron

There was an plain appeal to the Judge — as I, like so many, all the time referred to as him. However, even in any case these years, I wrestle to elucidate why. Was it the twinkle shining via the gruffness? The gentleness tempering the exactitude? The full loyalty leavening the dauntingly excessive expectations? The shrewdness grounding the idealism? The old-school formality giving strategy to a shocking intimacy? I don’t know. I do know that to make him snicker, and to snort with him even within the midst of great work — in reality, particularly within the midst of it — was true pleasure for me.

The Judge was a jumble of contrasts and nothing if not unique. He was additionally impassioned and a patriot by way of and thru. He beloved the nation that he served, and one couldn’t assist however respect his dedication to doing proper by its individuals. The individuals whose instances got here to him impressed him to do his job with an depth that was intoxicating and, implicitly, insisting. Will you be sure you work this manner? Will you make sure you do the sort of work that makes working this manner value it?

In case after case, via willpower and talent, he recognized some flaw within the authorities’s remedy of an individual with few assets and nice want and satisfied his fellow panelists to proper the improper. In case after case, he discerned some missed facet of the report or precedent and led his courtroom to make sure that an individual with a lawful declare to safety might safe it. In fact, this was true within the “big” instances, too. Chewing on a pencil, staring out on the town that he liked, he discarded arguments that didn’t work and honed people who did, understanding the stakes of a constitutional ruling that would have an effect on tens of millions. The ensuing selections didn’t all the time stick. However they nonetheless left a path — beautiful in its breadth — for others to comply with.

The Judge not solely modified the lives of these whose instances got here earlier than him. He additionally sketched arguments that legal professionals and judges everywhere in the nation used to do their very own half in righting wrongs — typically when, within the sea of precedents out there to them, little apart from that one tightly reasoned and much-worried-over Reinhardt opinion supported their view.

The Judge even modified the lives of those that had no event to depend on his work. A rigorous decide who didn’t shy from phrases like “justice” or “fairness,” his voice recalled the authorized period outlined by the Courtroom he so admired, the Warren Courtroom. However, even at a half-century’s take away from that very totally different time, he made that voice sound modern, vigorous, assured, undiminished. That voice impressed not solely those that agreed with him, however lots of his adversaries, too. All of them knew the significance of there nonetheless being on this nation a decide of that kind.

There’s one different group of individuals whose lives his work modified — his regulation clerks. A yr with him was exhilarating — and exhausting. It was additionally — for me — life altering. Precisely why a single individual in a single’s profession involves have such an outsized affect is mysterious. However, after simply twelve months in chambers, I had a brand new sense of what I ought to do as a lawyer and an enduring connection to a person I got here to like. I’m so grateful to have had him in my life for so long as I did — and so grateful that the facility of his personal life has been acknowledged as the instance, and the inspiration, that it’s.

* Judge, United States Courtroom of Appeals for the First Circuit, and the Honorable S. William Inexperienced Visiting Professor of Public Regulation, 2017–2018, Harvard Regulation Faculty. Judge Barron clerked for Judge Reinhardt from 1994–1995.

Andrew Manuel Crespo

To admirers and to critics, his sobriquets have been many. Liberal Lion. Dangerous Boy of the Federal Judiciary. Chief Justice of the Warren Courtroom in Exile. However to these of us who knew him and who liked him, he was, merely, Judge.

That isn’t to say that the sobriquets — any certainly one of them — missed the mark. Quite the opposite, they have been collectively of a bit. For if he was a Lion he was “a Lion in Winter,” maybe the “last great liberal lion of a once-numerous pride.”1× Garrett Epps, In Prop. eight Ruling, a Liberal Lion Coos, The Am. Prospect (Feb. 7, 2012), []. He graduated from regulation faculty the yr that the Supreme Courtroom determined Brown v. Board of Schooling, and for the remainder of his life he believed it was “the obligation of the courts to ensure fairness and equality for all.”2× Stephen Reinhardt, Lecture, The Anatomy of an Execution: Equity vs. “Process,” 74 N.Y.U. L. Rev. 313, 352 (1999). To him, the “law was about justice” and the “courts were where people could come when they have a problem,”three× Gavin Broady, The Lion in Winter: Judge Stephen Reinhardt, Regulation360 (Apr. 1, 2014, eight:10 PM) (quoting Judge Reinhardt), []. presenting their claims to judges who ought to above all else insist on treating each individual with dignity and respect — most particularly “the poor, the disenfranchised, and the underprivileged,” whose hardships all too typically go ignored.four× Reinhardt, supra notice 2, at 314.

However whereas his life as a lawyer might have been born of summer time, he spent his life as a decide exiled to a cooler clime. Day-after-day that he sat on the federal bench he labored beneath a Supreme Courtroom whose majority disagreed with him on almost each main choice that he issued. To the extent he was often known as a Dangerous Boy inside that judiciary, it was as a result of he typically disagreed with the Justices proper again — publicly castigating these whom he noticed as “limiting rights generally, especially those of racial minorities.”5× Id. at 315.

Some noticed on this public disagreement an “open resistance, defiance even, toward a Supreme Court that was moving ever further to his right.”6× Linda Greenhouse, Dissenting Towards the Supreme Courtroom’s Rightward Shift, N.Y. Occasions (Apr. 12, 2018), []. Once in a while, he inspired that view, wryly remarking that when it got here to reversing his opinions the Supreme Courtroom merely couldn’t “catch ’em all.”7× Id. (quoting Judge Reinhardt). Beneath that rapscallion riposte, nevertheless, Judge Reinhardt appreciated a delicate however important distinction between “resistance” and “defiance.” He proudly practiced the previous, emphatically declaring that it isn’t the “mission” of a decrease courtroom decide “to anticipate the Supreme Court’s deprivation of constitutional rights.”eight× Broady, supra notice three (quoting Judge Reinhardt). If the Supreme Courtroom reversed him, he famous, it was “not for failing to apply the law” that the Courtroom had “previously enunciated,” however fairly as a result of he had did not embrace of his personal accord some “previously undeclared, and extreme rules that” the Courtroom would later announce — in what he noticed as its endless marketing campaign “to limit the ability of federal courts to enforce the rights embodied in the Constitution.”9× Stephen R. Reinhardt, The Demise of Habeas Corpus and the Rise of Certified Immunity: The Courtroom’s Ever Growing Limitations on the Improvement and Enforcement of Constitutional Rights and Some Notably Unlucky Penalties, 113 Mich. L. Rev. 1219, 1222 (2015). Towards that program, he resisted, assured within the view that “reversal by a higher court is not proof that justice is thereby better done.”10× Reinhardt, supra observe 2, at 314 (alteration omitted) (quoting Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson, J., concurring)).

However simply as insistently as he practiced such resistance, he firmly rejected the thought of defiance. As soon as the Supreme Courtroom decides a problem, he would say, “you have to follow it.”11× Broady, supra notice three (quoting Judge Reinhardt). And comply with he did, again and again. Now and again, he would publish his sharp disagreement with the outcome that precedent compelled him to succeed in, memorably dissenting “as a citizen” all of the whereas concurring “as a judge.”12× Magana Ortiz v. Periods, 857 F.3d 966, 968 (ninth Cir. 2017) (Reinhardt, J., concurring) (“I concur as a judge, but as a citizen I do not.”); see additionally United States v. Hungerford, 465 F.3d 1113, 1118, 1122 (ninth Cir. 2006) (Reinhardt, J., concurring within the judgment) (“Although precedent forecloses Marion Hungerford’s Eighth Amendment challenge to . . . her 159-year term of imprisonment, it cannot be left unsaid how irrational, inhumane, and absurd the sentence in this case is.” Id. at 1118. “Because I am required to do so, I concur in the judgment, but nothing more.” Id. at 1122.”). Certainly, typically he can be urged to go additional — to not concur however to dissent, to embrace outright the defiance that had already, if inaccurately, been ascribed to him. There, although, he drew the road. And his reasoning was easy: “We in the appellate courts dutifully follow the existing Supreme Court law,” he defined, “because the system of law that we so admire and respect contains a hierarchy in which the Supreme Court rests at the top.”13× Reinhardt, supra word 9, at 1222, 1254.

There, as all the time, it was: his devotion to our system of regulation, a system to which he devoted the various lengthy hours of his life. That life had a number of nice loves — his spouse Ramona, his youngsters and grandchildren, his cat Delano, adopted intently by baseball, basketball, soccer, and the films (all the films).14× “I always thought I’d like to become commissioner of baseball or the National Football League, or run a movie studio,” he as soon as stated. Broady, supra word three. However excessive on that listing there was his deep and abiding love of the regulation, which he demonstrated over the course of his many many years via an equally deep and abiding optimism concerning the regulation’s future. “I am an optimist,” he wrote.15× Reinhardt, supra word 9, at 1254. “I see a trend toward progress and social justice.”16× Id. Typically, he defined, that progress comes solely “after painful battles,” typically solely “after painful lapses or even painful defeats.”17× Id. However in the long run, he knew that winter precedes spring — and that so too with the regulation “the pendulum will surely swing.”18× Reinhardt, supra notice 2, at 352.

His optimism, although, was all the time flinty eyed, by no means as soon as betraying the slightest trace of naiveté. The pendulum doesn’t inevitably swing, he knew, and it most assuredly doesn’t swing by itself. Somewhat, if there was one private advantage that the Judge each embodied and anticipated from these round him, it was a willingness and a capability to work arduous — very, very exhausting — in pursuit of justice.

Once I was his regulation clerk, Judge Reinhardt was greater than fifty years my senior. I by no means knew him as a younger man. However I by no means knew him as an previous man, both. As an alternative, six days every week and sometimes twelve or extra hours a day, I and the various clerks who preceded and adopted me struggled to maintain up with him. Even now I can see him sitting there, in his high-backed chair, poring over the fourteenth or fifteenth draft of an opinion. In his eighty-seven years, I doubt the Judge ever as soon as touched a pc. As an alternative, we might print out our drafts after which sit by his aspect, hour after hour, as he learn by means of every line, typically grumbling his approach by way of our inexpert prose and chewing his pen to a stump within the course of. Inevitably, typically incessantly, the pen would flick ahead from his mouth, hanging via some infelicitous phrase and changing it with one much better, all the time scrawled out in his tight cursive hand. Then, he would lookup and ask, “Why did you write it that way?” — the precursor to a typically hours-long debate over the finer factors of regulation, logic, and the English language.

Solely as I walked out of his workplace, each exhausted and exhilarated by the ordeal, did I understand that my three co-clerks have been ready to repeat the method with their very own assigned drafts, and that the Judge was thus working 4 occasions as arduous as every of us — which he did yr in and yr out for almost 4 many years. With him as our mannequin, we strove to do our best and hardest work as nicely, recognizing that he trusted us and, much more so, that the work itself was mandatory and necessary. In any case, he reminded us, “Change will not come easily.”19× Id. at 353.

Reflecting again now, I’ve the dawning sense that he was working exhausting to impact such change in at the very least two respects. The primary, in fact, was within the regulation itself, which he hoped to win again from the “judicial philosophy of the right,” a philosophy championed, he famous, by “conservatives who fight for what they believe in” and thus “deserve respect and admiration.”20× Stephen Reinhardt, Who Will Hold the Liberal Flame, If Not Breyer?, L.A. Occasions (Might 26, 1994) (capitalization omitted), []. The opposite change, although, I feel might have been one which he sought to effectuate in us — his clerks — and, extra broadly, within the era of younger legal professionals whom he met with when talking at regulation faculties throughout the nation: “Change will not come easily. It will take hard work on the part of well-trained advocates and creative legal thinkers who refuse to accept” the established order, and who by way of “their words and deeds” attempt to “inspire” others to take up the reason for justice as properly.21× Reinhardt, supra observe 2, at 353.

That was his cost to the generations in his wake: to “carry on the work of the court’s great progressive thinkers — the justices who ended de jure racial segregation, brought us one man/one vote, opened the courts to the poor and needy, established the right to counsel for all defendants, gave women true legal equality.”22× Reinhardt, supra notice 20. All through his life, Judge Reinhardt carried on that work, becoming a member of these earlier jurists in whose ranks and firm he now rests. In the top, although, he knew that his work was destined to go unfinished — that he would “not be around to see the day” when spring may lastly creep over the horizon into the “valley” during which he spent his “long legal journey toward justice.”23× Reinhardt, supra word 2, at 352. Certainly, he privately got here to concede that when it got here to reversing his makes an attempt to go away his mark on the regulation, the Supreme Courtroom might, the truth is, catch all of them.

And so his optimism got here to relaxation all of the extra on his second technique of effecting change — not by means of his opinions however by means of his efforts to encourage, together with his phrases and his deeds, the generations of youthful legal professionals working in his wake. Certainly, these of us who have been lucky sufficient to work for him quickly got here to see that beneath his gruff and gravelly exterior, we — his clerks — have been amongst his nice loves, too. And to these of us who knew and liked him in return, he was ever an inspiration, and can eternally be our Judge.

* Assistant Professor of Regulation, Harvard Regulation Faculty. Professor Crespo clerked for Judge Reinhardt from 2008–2009.

Michael C. Dorf

Judge Stephen Reinhardt’s dying got here as a shock to me, because it did to so most of the different former clerks, legal professionals, professors, and associates who knew and liked him. How is that potential? He was eighty-seven years previous and a longtime cardiac affected person. Each time I shared a meal with the Judge, he casually pushed the greens to the aspect of his plate as if to keep away from polluting his physique with something wholesome. It was a miracle that he survived so long as he did. And but, till the top, Judge Reinhardt was each inch the person we knew: sensible; wickedly humorous; typically caustic; type hearted; demanding of others however much more demanding of himself; and most of all, vigorous, certainly, bigger than life. The abrupt finish of such a titan might solely be surprising.

Judge Reinhardt noticed regulation as a device for attaining justice and for holding the highly effective accountable to the powerless. He was a masterful authorized technician, however he was incessantly dismayed by how some judges appeared to fetishize the regulation’s technical dimensions. He shall be remembered because the final “liberal lion,”24× Sam Roberts, Stephen Reinhardt, Liberal Lion of Federal Courtroom, Dies at 87, N.Y. Occasions (Apr. 2, 2018), []. or, as I’ve lengthy considered him, “the Chief Justice of the Warren Court in exile.”25× Michael C. Dorf, Requiem for Reinhardt, Chief Justice of the Warren Courtroom in Exile, Verdict (Apr. four, 2018), []. These monikers match, and Judge Reinhardt proudly embraced them. Nevertheless, it will be a mistake to view him as some relic of a bygone age and even as a medieval monk preserving the traditional information within the hope that it may be helpful in some future renaissance. In Judge Reinhardt’s work we will see the core of a up to date liberal jurisprudence.

Judge Reinhardt was confirmed to his seat as a federal appeals courtroom decide in 1980. His profession was roughly contemporaneous with these of two different giants of the federal bench, Justice Antonin Scalia (who was first appointed in 1982 and died in 2016) and Judge Richard Posner (who was appointed in 1981 and retired in 2017). Typical knowledge would line these jurists up from left to proper, putting Reinhardt and Scalia at reverse poles, whereas finding the pragmatic Posner within the middle. That alignment is sensible so far as it goes, however seen from a jurisprudential quite than ideological perspective, Reinhardt was the golden imply between Scalia the formalist and Posner the hardcore authorized realist.

Justice Scalia championed textualism in statutory interpretation and originalism in constitutional interpretation. Each philosophies are manufacturers of formalism, a time period Scalia cheerily accepted.26× See Antonin Scalia, Widespread-Regulation Courts in a Civil-Regulation System: The Position of United States Federal Courts in Deciphering the Structure and Legal guidelines, in A Matter of Interpretation three, 25 (Amy Gutmann ed., 1997) (“Long live formalism.”). To make certain, Scalia didn’t champion what Dean Roscoe Pound derisively referred to as “mechanical jurisprudence.”27× Roscoe Pound, Mechanical Jurisprudence, eight Colum. L. Rev. 605, 607 (1908). Nonetheless, greater than almost any main jurist of his age, Justice Scalia thought it vitally necessary to attenuate the position of what he noticed as inevitably idiosyncratic particular person judgment in adjudication.28× See John F. Manning, Justice Scalia and the Concept of Judicial Restraint, 115 Mich. L. Rev. 747, 749–50 (2017) (arguing “that an insistence upon decisional justifications external to the judges’ will, and not a naked preference for rules, provided the central grounding for all of Justice Scalia’s commitments”).

Judge Posner, against this, is a authorized realist and an antiformalist. He contends that the suitable option to determine a contested case is to determine the most effective end result, all issues thought-about, after which to impose that consequence until the regulation clearly guidelines it out.29× See Richard A. Posner, Divergent Paths: The Academy and the Judiciary 78 (2016).

Most judges and students fall someplace in between Scalian formalism and Posnerian authorized realism. They (I ought to correctly say “we”) assume it applicable, certainly mandatory, for judges to hunt steerage past the semantic content material of authorized texts but in addition assume that the pre-existing regulation ought to correctly play a considerable position in shaping outcomes; it shouldn’t merely rule some selections out of bounds. The place a authorized textual content is unclear, most judges look behind the textual content to its animating spirit or function. This strategy to judging has typically been referred to as “purposivism,” though many judges deploy it virtually unconsciously as a type of easy widespread sense.

Purposivism has no vital ideological valence. Its main mid-twentieth-century champions — Professor Henry Hart and Dean Albert Sacks — have been centrists, and one might definitely be a conservative purposivist as properly. That stated, Judge Reinhardt’s judgments over a variety of topics present that purposivism most naturally helps liberal outcomes. In making an attempt to determine the import of authorized texts, Hart and Sacks stated that, absent very robust indications on the contrary, a decide ought to assume “that the legislature was made up of reasonable persons pursuing reasonable purposes reasonably.”30× Henry M. Hart, Jr. & Albert M. Sacks, The Authorized Course of: Primary Issues within the Making and Software of Regulation 1378 (William N. Eskridge, Jr. & Philip P. Frickey eds., 1994). (One might say the identical factor concerning the nature, objectives, and technique of structure writers and ratifiers.) For an empathic decide alert to injustice, a function to guard weak individuals from abuse by the highly effective will virtually all the time appear extra affordable than a objective to assist the highly effective in abusing the weak.

A case Judge Reinhardt determined the yr I clerked for him properly illustrates his liberal purposivism. The U.S. authorities kidnapped a Mexican nationwide in Mexico to be able to place him on trial in the USA. Backed by the Mexican authorities, he protested that the kidnapping violated an extradition treaty. The U.S. authorities argued that the treaty merely offered one — solely non-compulsory — mechanism for bringing individuals to the USA to face trial. It didn’t foreclose options, similar to kidnapping. Judge Reinhardt thought this argument made a mockery of the treaty’s precept of specialty — which permits a sending authorities to restrict the crimes for which the extradited individual could also be tried. Beneath the federal government’s argument, he wrote:

as soon as it’s clear that the overseas authorities will solely extradite a suspect for embezzlement and never for extortion, the federal government can merely drop its extradition proceedings, kidnap the person, and check out him for extortion with out violating the treaty — as a result of it has proceeded outdoors of the treaty framework. To us, seen on this mild the federal government’s argument merely is mindless by any means.31× United States v. Verdugo-Urquidez, 939 F.second 1341, 1351 (ninth Cir. 1991), vacated and remanded, 505 U.S. 1201 (1992).

In one among three Supreme Courtroom instances arising out of the kidnapping,32× See United States v. Alvarez-Machain, 504 U.S. 655 (1992). The opposite Supreme Courtroom instances arising out of this incident have been United States v. Verdugo-Urquidez, 494 U.S. 259 (1990), which held the Fourth Modification inapplicable to a search by U.S. authorities of the Mexican residence of a Mexican citizen, and Sosa v. Alvarez-Machain, 542 U.S. 692 (2004), which held, inter alia, that a overseas plaintiff’s remedy violated no norm of worldwide regulation of the type that might warrant a reason for motion giving rise to jurisdiction underneath the Alien Tort Statute. the Justices reversed. Writing for a majority, Chief Justice Rehnquist adopted the view that Judge Reinhardt thought nonsensical.33× See Alvarez-Machain, 504 U.S. at 664–66.

By the point that occurred, I used to be a regulation clerk for Justice Kennedy, who joined the bulk opinion within the Supreme Courtroom, however I had recused myself as a result of I had labored on the case for Judge Reinhardt. Once I noticed the Judge a while later, he expressed amazement. As soon as the Supreme Courtroom granted certiorari, he anticipated that his courtroom’s ruling can be reversed, however he thought the Courtroom would accomplish the deed by holding that an illegal arrest doesn’t deprive a courtroom of the facility to attempt the arrestee, a place with substantial help in prior case regulation that his personal opinion had labored mightily to differentiate.34× See Verdugo-Urquidez, 939 F.second at 1345–49 (distinguishing prior instances on the bottom, inter alia, that they didn’t contain an official protest from the nation during which the kidnapping occurred). He couldn’t perceive how the Courtroom might rule based mostly on the bottom that it did. It simply didn’t make sense of any affordable objective he might attribute to the treaty.

Judge Reinhardt was a curious mixture of cynical and naïve about individuals. He understood the hurt individuals are able to inflicting on the weak. He thus noticed the first position of regulation — and his position as expositor of it — as limiting arbitrary and different unfair workouts of energy. But he all the time appeared to anticipate higher and thus was ceaselessly stunned and disillusioned by the misdeeds, errors, or easy lack of empathy that others displayed. If I shut my eyes, I can hear the disbelief in his voice and see him shaking his head.

Every so often Judge Reinhardt would name me as much as complain about one thing I had written. “I never read blogs,” he would start, saying “blog” the best way one may say “horoscopes” or “pornography.” He would then inform me that certainly one of his present clerks had pointed him to a weblog publish of mine, hastening so as to add that I used to be both flat-out fallacious or losing my time on an unimportant query. On multiple event, Judge Reinhardt upbraided me for referring to a “liberal Supreme Court justice.”

“There are no liberals on this Court,” he would say, not in comparison with “real liberals” like Justices William Brennan and Thurgood Marshall. Judge Reinhardt would permit that a number of the present Justices weren’t as conservative because the others, however he would then listing the disappointing current selections that the “supposed liberals” had written or joined. Regardless that Judge Reinhardt knew that Justices Brennan and Marshall had way back departed, he maintained his capability to be disenchanted.

That capability for disappointment fueled Judge Reinhardt. Even when he knew that he and the opposite judges who got here closest to counting for him as liberal have been outnumbered, he continued to battle the great battle. He did so to not go down swinging however as a result of he believed that justice might prevail. Judge Reinhardt wouldn’t have admitted it — certainly, he would have laughed derisively and made a skeptical face if he heard me say it — however he was finally an optimist.

* Robert S. Stevens Professor of Regulation, Cornell Regulation Faculty, and Regulation Clerk to Judge Reinhardt from 1990–1991. I’m grateful to Sherry F. Colb for feedback on a draft of this essay.

Heather Okay. Gerken

I do know the Judge glided by many names, however to his clerks he was the Judge, a time period that embodies equal elements of affection, admiration, and exasperation. In the weeks after the Judge’s dying, one of many issues that sustained all of his clerks is swapping Judge tales.

“Judge stories,” for many who don’t know, is a time period I’ve used to explain the tales the clerks inform concerning the Judge.35× Heather Okay. Gerken, Tribute, Judge Tales, 120 Yale L.J. 529 (2010). They’re over-the-top tales about his consuming habits, his shockingly humorous bluntness, or his full incapability to tug cash from an ATM or fuel from a pump. The Judge was cussed and ornery and will argue about absolutely anything. I as soon as edited one in every of his sentences to get rid of a dangling preposition. He took delight — and an excellent ten minutes — altering the sentence so it HAD to have a dangling preposition. One other clerk informed me that his largest debate with the Judge was over the spelling of the phrase dilemma.

Judge tales have all the time been the code the clerks use to speak about how a lot we love and admire the Judge. Judge tales are an oblique technique of coping with the intimidating strangeness of working for a legend. Judge tales are the best way we clarify what it meant to have labored for the person who was — till a number of months in the past — the final Warren Courtroom decide left standing.

It appears becoming that the Judge graduated from Yale Regulation Faculty the identical yr that the Warren Courtroom issued Brown v. Board of Schooling. It was then that he started what amounted to a quest to bend historical past towards the rights of “the poor, the disenfranchised, and the underprivileged.”36× Stephen Reinhardt, Lecture, The Anatomy of an Execution: Equity vs. “Process,” 74 N.Y.U. L. Rev. 313, 314 (1999).

He took up pen and gavel to beat again the hounds of capital punishment; to guard the rights of all these accused of a criminal offense; and to enshrine in regulation the proper to marry whomever one loves. Throughout almost 4 many years on the bench, he stored the fires of the Warren Courtroom alive lengthy after its embers had gone chilly. He is among the few individuals I do know who had the best to talk of therapeutic the nation’s “constitutional wounds,”37× Id. at 352. exactly as a result of he bore the scars of these fights.

What made the Judge all of the extra intimidating is that one thing unbreakable was woven into his spirit, which is why the dying of an eighty-seven-year-old man got here as an entire shock to many people. His work was Sisyphean. Reversals had a peculiar approach of discovering his chambers. One would assume this might put on a person down. However the Judge was relentless. He would are available — each day — and do the work of justice all the identical. He would scour briefs for weak spot. He would pore over his opinions. And he would put together mercilessly. All of the whereas repeating his mantra: they will’t reverse all of them.

Wanting again, I now ponder whether he knew the reality of it — whether or not he knew that they might, in reality, reverse all of them, or no less than most of them. I’d wish to assume that he drew comfort from all the great he did within the small instances, the instances that flew beneath the radar, those involving people who find themselves virtually invisible to most of us . . . however by no means to him.

For the previous few months, once I consider the Judge’s unimaginable mixture of cynicism and persistence, I’m haunted by that Bart Giamatti line in a wonderful essay about baseball, one of many Judge’s abiding passions. Giamatti — a lawyer and a Purple Sox fan — describes those that are prepared to fall in love anew every spring, figuring out full nicely that it’ll finish once more come October, because the “truly tough among us, the ones who can live without illusion, or without even the hope of illusion.”38× Bart Giamatti, The Nice Inexperienced Fields of the Thoughts, in A Nice and Superb Recreation 7, 13 (1998).

Once I take into consideration the Judge’s demise . . . and the political second we’re in . . . and the way totally different the Judge’s values have been from the person who will appoint his alternative, my thoughts is pulled to Giamatti’s different statement about baseball. “It breaks your heart. It is designed to break your heart. . . . It breaks [your] heart because it was meant to, because it was meant to foster in [us] again the illusion that there was something abiding . . . .”39× Id.

However maybe I’m an excessive amount of the Reinhardt clerk or it’s simply that I do know that the Judge would by no means settle for defeat. However proper now, the Judge’s legacy feels . . . abiding. I see his legacy in his exceptional household, together with his grandson, Max, who has adopted his grandfather’s path to Yale Regulation Faculty. I see it within the phrases he has written in dissents that we’ll learn and cite properly after the bulk opinions that sparked these dissents are forged apart. And I see the legacy in his clerks, a era educated by one of many best legal professionals I’ve ever recognized. A era of legal professionals educated to hunt justice. A era of people that labored for him exactly as a result of they’re as cussed and exasperating and as relentless as he was.

Fifteen years after Giamatti died, the Purple Sox gained their first World Collection in eighty-six years, stoked by the inspiration of generations of followers accustomed to loss however by no means accepting defeat. Let’s not wait that lengthy.

* Dean and Sol & Lillian Goldman Professor of Regulation, Yale Regulation Faculty, and Regulation Clerk to Judge Reinhardt from 1994–1995. I owe a debt of gratitude to Chris Haugh, a phenomenal author and an excellent pal.

Adriaan Lanni

Judges, notably appellate judges, have numerous discretion over how exhausting they will work. They’ve numerous assistants, there isn’t any supervisor, it’s virtually inconceivable to get fired, and at a sure level they will retire or go part-time with out lack of wage. (It isn’t so totally different from being a regulation professor.) The one main examine on them is reputational,40× See Richard A. Posner, What Do Judges and Justices Maximize? (The Similar Factor Everyone Else Does), three Sup. Ct. Econ. Rev. 1, 15 (1993). and that is largely depending on the craftsmanship proven in a comparatively small variety of the decide’s most “important” opinions. And clerks will inform you that appellate judges (additionally like regulation professors) differ significantly in how a lot they throw themselves into the opposite elements of the job.

As a former clerk for Judge Stephen Reinhardt, I can inform you that he labored arduous, very onerous — and never simply on the essential instances. Prisoner appeals, social safety appeals, employment instances, asylum denials: there are not any packed courtrooms for these instances, and lots of of those selections won’t ever be cited, or maybe even learn by anybody however the events. However to the shock of many new regulation clerks, these instances crowd the federal docket. And there’s a nice temptation to deal with them as unimportant, to allow them to fall to the underside of the pile — notably among the many clerks, who consider they have been employed to put in writing the subsequent chapter in due course of jurisprudence, or at the least so as to add a brand new and interesting squib notice in Hart and Wechsler.

Judge Reinhardt emphatically didn’t give in to this temptation. One among my most vivid reminiscences from my clerkship is from one in every of these apparently minor instances, during which a person had established his proper to Social Safety advantages. The bar may think about this choice to be much less essential, however the Judge didn’t — he requested about it at each standing assembly and needed to problem the opinion shortly so the person might get his advantages as quick as potential. Then virtually seventy years previous, and with twenty years on the bench, he was not remotely jaded. He by no means overlooked the individuals behind the instances. One other instance: The Ninth Circuit makes use of screening panels to determine more easy instances with out oral argument to assist clear the courtroom’s crowded docket. Judge Reinhardt was recognized to dive into the small print of many of those screened instances, regardless of strain to resolve a whole lot of them in three days, and recurrently insisted on referring them to a daily oral argument panel for nearer evaluation.

There was a price to sweating these particulars in each case. He labored nicely previous dinner most weeknights and no less than in the future on each weekend. I can say from expertise that this can be a punishing workload even for only one yr, however the Judge did it for nearly forty years, holding a full docket proper as much as the top. This is likely one of the purest sorts of integrity there’s, and, invisible although it’s, it in all probability does extra to humanize the train of energy by our authorities than the best prose within the Federal Stories.

Graham Greene as soon as stated that God cares concerning the small sins greater than the large ones.41× Graham Greene, The Energy and the Glory (1940). I’m positive that Judge Reinhardt can be remembered for his selections in massive instances, however what I’ll keep in mind is his strategy to the “small” ones.

* Touroff-Glueck Professor of Regulation, Harvard Regulation Faculty. Professor Lanni clerked for Judge Rein-hardt from 2000–2001.

Benjamin I. Sachs


Eleven days after Judge Stephen Reinhardt died, the Ninth Circuit issued a serious Equal Pay Act42× 29 U.S.C. § 206(d) (2012). determination that he authored.43× See Rizo v. Yovino, 887 F.3d 453 (ninth Cir. 2018) (en banc). To a former clerk who liked and admired the Judge, the posthumous publication of Rizo v. Yovino44× 887 F.3d 453. had a deep poignancy. Studying the phrases of this groundbreaking choice — a choice that prohibits employers from justifying wage differentials between women and men on the idea of prior salaries — felt like listening to the Judge talking nonetheless. And it was undoubtedly his voice I heard all through the en banc opinion. He began: “The Equal Pay Act stands for a principle as simple as it is just: men and women should receive equal pay for equal work regardless of sex.”45× Id. at 456. And he concluded:

Sadly, over fifty years after the passage of the Equal Pay Act, the wage hole between women and men is just not some inert historic relic of bygone assumptions and sex-based oppression. Though it might have improved because the passage of the Equal Pay Act, the hole persists immediately: ladies proceed to obtain decrease earnings than males “across industries, occupations, and education levels.” . . . Permitting prior wage to justify a wage differential . . . entrench[es] in wage techniques an apparent technique of discrimination — the very discrimination that the Act was designed to ban and rectify.46× Id. at 468 (quoting Temporary of Amici Curiae Equal Rights Advocates et al. in Help of Plaintiff-Appellee’s Petition for Rehearing and Rehearing En Banc at 12, Rizo, 887 F.3d 453 (No. 16-15372)).

In reality, Rizo v. Yovino is a basic Reinhardt opinion, encapsulating in thirty pages lots of his judicial logos. Maybe most significantly, the opinion stands as a superb instance of Reinhardt’s perception that judges ought to “harness” the regulation as an “engine of social progress” — as Linda Greenhouse aptly put it in her current tribute to him.47× Linda Greenhouse, Dissenting Towards the Supreme Courtroom’s Rightward Shift, N.Y. Occasions (Apr. 12, 2018), []. In Rizo, the difficulty was pay fairness, and, extra notably, how to make sure that a historical past of gender discrimination not perpetuate itself by means of the apply of justifying present wage ranges on the idea of previous ones. Because the opinion rightly said, this type of intercourse discrimination is alive and properly within the U.S. in the present day. Certainly, Equal Pay Day passed off this yr on April 10, the day after Rizo was revealed. That day marks how far right into a present yr the typical lady has to work to earn what the typical artificial by the top of the earlier yr.48× Equal Pay Day, Nat’l Comm. on Pay Fairness, []. That’s to say, a lady would have needed to work till Rizo was issued in 2018 in an effort to earn what a male counterpart would have made by December 31 of 2017. A lot work stays to be completed on pay fairness, and never even the most effective judicial determination will probably be sufficient to treatment this type of injustice. However Judge Reinhardt’s opinion in Rizo marks a serious step within the course of equality.

Rizo can also be basic Reinhardt as a result of it locations his courtroom, via his authorship, on the forefront of authorized progress for working individuals. With Rizo, the Judge has executed this for ladies staff and the Equal Pay Act. The Judge additionally facilitated monumental progress for low-wage staff looking for to implement their rights beneath the Truthful Labor Requirements Act.49× 29 U.S.C. §§ 201–219 (2012). In Lambert v. Ackerley,50× 180 F.3d 997 (ninth Cir. 1999) (en banc). an opinion of main significance to the efficacy of that statute’s antiretaliation clause, Judge Reinhardt — once more for an en banc courtroom — held that staff are protected once they demand minimal wage and additional time rights instantly from their employers, and never solely once they formally search redress from a authorities company or the courts.51× Id. at 1001. This ruling opens the door for artistic wage campaigns and ensures that staff with out authorized illustration, and even with out particular information of the authorized foundation for his or her calls for, can declare the wages they’re owed with out worry of reprisal. In addition — within the face of a remarkably hostile Supreme Courtroom — Judge Reinhardt led the judicial transfer to supply protections to undocumented immigrant staff who get up for his or her office rights. Thus, in Rivera v. NIBCO, Inc.,52× 364 F.3d 1057 (ninth Cir. 2004). the Judge held that employers might not use immigration standing as a device to stop staff — no matter their immigration standing — from asserting Title VII rights.53× Id. at 1074–75. And the Judge — right here, once more, standing towards a seemingly ceaseless present shifting in the other way — expanded the rights of labor unions to arrange staff. United Meals and Business Staff Union, Native 1036 v. NLRB54× 307 F.3d 760 (ninth Cir. 2002). is however one instance. In that case, the Judge held that organizing new staff was so necessary to these already represented by unions that the prices of such organizing have been “germane to collective bargaining” and thus chargeable to all members of present bargaining models, whether or not members of the union or not.55× Id. at 774–75.

Rizo additionally provides an instance of a holistic mode of statutory interpretation that’s emblematic of Reinhardt’s judicial fashion. Slightly than beginning with the textual content of the statute, the Judge started his evaluation with the “underlying purposes which Congress sought to achieve.”56× Rizo v. Yovino, 887 F.3d 453, 460 (ninth Cir. 2018) (en banc) (quoting Corning Glass Works v. Brennan, 417 U.S. 188, 208 (1974)). This allowed the Judge to border the case as he would have seen it: as a query of justice and fairness, somewhat than merely a query of the definitions of phrases. Thus, within the opinion’s substantive Dialogue part, Half An outlined the difficulty at stake within the case: “The remedial purpose of the Act is clear: to put an end to historical wage discrimination against women.”57× Id. (emphasis added). And, quoting from the legislative historical past: “The issue here is really a very simple one—the elimination of one of the most persistent and obnoxious forms of discrimination which is still practiced in this enlightened society.”58× Id. (quoting 109 Cong. Rec. 9200 (1963) (assertion of Rep. Dwyer) (emphasis added)). After establishing the aim of the statute into account, the Judge then turned, in Half B, to the phrases of the statute. Thus he wrote: “Basic principles of statutory interpretation also establish that prior salary is not a permissible ‘factor other than sex’ within the meaning of the Equal Pay Act.”59× Id. at 461 (emphasis added).

To make certain, for Judge Reinhardt, this strategy to studying statutes is neither new nor distinctive to Rizo. In Lambert, for instance (the wage-and-hour case talked about above), the query was whether or not the Truthful Labor Requirements Act’s antiretaliation clause protects staff who complain to their employers about substandard pay. The clause makes it illegal for an employer to retaliate towards any worker who has “filed any complaint . . . under or related to” the Act,60× 29 U.S.C. § 215(a)(three) (2012). and so the query was whether or not complaints made to employers may be complaints “filed” underneath the Act. The Judge wrote that there’s a “simple” strategy that ought for use when construing statutes, just like the FLSA, which are “designed to protect individual rights.”61× Lambert v. Ackerley, 180 F.3d 997, 1003 (ninth Cir. 1999) (en banc). That strategy entails that the courtroom begin with congressional function. Once more, beginning with function allowed the Judge to border the case when it comes to justice and equity, not when it comes to linguistics. Thus:

[The Fair Labor Standards Act] is remedial and humanitarian in objective. We aren’t right here coping with mere chattels or articles of commerce however with the rights of those that toil . . . These are rights that Congress has particularly legislated to guard. Such a statute should not be interpreted in a slender, grudging method.62× Id. (quoting Tenn. Coal, Iron & R.R. Co. v. Muscoda Native No. 123, 321 U.S. 590, 597 (1944)).

And, with respect to the antiretaliation clause at challenge in Lambert, the evaluation started with the Judge’s willpower that:

The FLSA’s anti-retaliation clause is designed to make sure that staff will not be compelled to danger their jobs as a way to assert their wage and hour rights beneath the Act. Construing the anti-retaliation provision to exclude from its safety all these staff who search to acquire truthful remedy and a treatment for a perceived violation of the Act from their employers would jeopardize the safety promised by the supply and discourage staff from asserting their rights.63× Id. at 1004.

Based mostly on this development of congressional function, the courtroom then said its holding: “We hold, therefore, that in order for the anti-retaliation provision to ensure that ‘fear of economic retaliation’ not ‘operate to induce aggrieved employees quietly to accept substandard conditions,’ it must protect employees who complain about violations to their employers . . . .”64× Id. (quoting Mitchell v. Robert DeMario Jewellery, Inc., 361 U.S. 288, 292 (1960)).

The phrases of the statute do matter, in fact. Beginning with function allowed the Judge to determine the case as one concerning the “rights of those who toil” and to carry that the congressional design requires that the clause attain complaints made to employers. However the Judge did then rigorously parse the phrases of the clause. As he wrote, “[a]lthough possibly subject to differing interpretations, the language of [the anti-retaliation clause] is fully consistent with this conclusion.”65× Id. For instance, the Judge factors out that staff “file” grievances with their employers and that the clause refers to “any complaint” and thus: “If ‘any complaint’ means ‘any complaint,’ then the provision extends to complaints made to employers.”66× Id.

Lastly, Rizo is emblematic of Judge Reinhardt in a last means, one which is perhaps much less seen than the others I’ve talked about. The Judge taught his clerks an unlimited quantity about authorized evaluation, authorized course of, and judicial follow. I can say confidently that nobody has taught me as a lot about regulation as did Stephen Reinhardt, and numerous different clerks really feel exactly the identical means. Though I didn’t have the chance to debate Rizo with the Judge, I can see within the opinion a top quality that I revered enormously in him — his willingness to vary his views over time; to study, I’d hazard to say, from the identical clerks who discovered a lot from him. In a case that occupied a number of years of the Ninth Circuit’s consideration and that turned well-known amongst clerks of a sure age, Maryann Stanley, the coach of the USC ladies’s basketball staff, sued USC beneath the Equal Pay Act as a result of she earned a fraction of what the male coach of the lads’s basketball group earned. The Ninth Circuit, in an opinion that Judge Reinhardt joined, held for USC.67× Stanley v. Univ. of S. Cal., 178 F.3d 1069, 1080 (ninth Cir. 1999). In some ways, together with those described above, the Judge Reinhardt who joined the Stanley opinion is identical Judge Reinhardt who authored Rizo — with the identical deep dedication to regulation as a software of social justice. However in different methods, the Rizo Reinhardt might have been totally different than the Stanley one, maybe much more open to seeing how previous practices set up baselines that seem impartial however are in reality the merchandise of discriminatory histories. And this is a gigantic testomony to the Judge’s willingness to stay open to argument and reasoned persuasion, even after eighty-seven years of life and even after thirty-eight years as one of many smartest and most impactful appellate judges our nation has ever recognized.

* Kestnbaum Professor of Labor and Business, Harvard Regulation Faculty, and Regulation Clerk to Judge Stephen Reinhardt, 1998–1999. Because of Madeleine Joseph for wonderful analysis help.