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May 27th, 2018

Insight

The battle for the 9th Circuit Court falls silent

Noah Feldman

By Noah Feldman Bloomberg View

Published April 3,2018

The James R. Browning U.S. Courthouse in San Francisco, home of the Ninth Circuit Court of Appeals.

The death of Judge Stephen Reinhardt last week at 87 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 brilliant in his own way and each at the extreme end of the ideological spectrum, fought with all the judicial tools available -- and even invented some new ones along the way. 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 Gov. Jerry Brown, and was named to the Court of Appeals by Jimmy Carter at the very end of his presidency. By the end of his tenure, Reinhardt was the only Carter appointee on any appeals court who had not either retired or taken senior status. (Justices Ruth Bader Ginsburg and Stephen Breyer, also appointed by Carter, were elevated to the U.S. Supreme Court by President Bill Clinton.)

Reinhardt made no bones about his commitment to liberalism. His wife, Ramona Ripston, ran the ACLU of Southern California until her retirement. Reinhardt was politically astute, sophisticated and connected -- the very 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 didn't exactly revel in his reversal rate -- he would've preferred to win -- but he certainly saw it as evidence that he was holding up progressive values even as the Supreme Court became more conservative.

In near-total contrast to Reinhardt, Kozinski was the enfant terrible of judicial conservatism. He was just 35 when President Ronald Reagan put him on the 9th Circuit, and he maintained the persona of the impulsive provocateur even after he became chief judge in 2014. His retirement last year after accusations of sexual misconduct taints his judicial legacy, and recasts his playful conversational outrageousness in a different light.

At the same time, it would be an error to ignore Kozinski's influential body of judicial work in the conservative and libertarian line.

Most important for understanding the way the 9th Circuit worked, both Reinhardt and Kozinski scrupulously -- some would say fanatically -- perused every syllable of every judicial opinion produced by any of the 29 active judges and 17 or so senior judges on the court.

This practice stemmed from the all-important rule of appellate judging known as circuit precedent: All the judges on a court of appeals follow the same understanding of the law.

Because appeals court judges sit in panels of three, there's always the possibility that a given panel will knowingly or unknowingly deviate from binding precedent in the circuit. When a question has never been squarely presented to the court before, the first panel to hear it sets the precedent.

Given these complicated rules of the game, both Reinhardt and Kozinski wanted to police all the judgments issued by the 9th Circuit. When one didn't like what he saw, he was quick to call for review of the panel decision by a broader body: the 9th Circuit sitting "en banc." (The words "en banc" are law French. In the case of the other federal appellate circuits, hearing a case en banc means the whole bench, or banc, hears the case. Because the 9th Circuit is so big, the court follows a different rule and chooses a subset of judges at random.) The larger panel could enforce or change circuit precedent.

The frequency of calls for en banc review on the 9th Circuit led to the development of a particular subgenre of judicial writing: the dissent from denial of rehearing en banc. This was an opinion announcing to the world that a judge had called for en banc review; that a majority of the judges on the 9th Circuit had not voted for en banc review; and that the judge writing the opinion was angry about it.

Kozinski nicknamed the genre the "dissental." The name shortened that mouthful of a description. It is also a bit of trans-linguistic wordplay to Yiddish, where the suffix "el" is a diminutive of endearment. The dissental was serious business, but Kozinski also loved it.

The published genre grew out of an unpublished genre in which both judges excelled: 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 judicial struggle between left and right. They drove each other to heights of jurisprudential creativity.

Those who prefer judicial minimalism may argue, with reason, that 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.

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Noah Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard University and the author of six books, most recently "Cool War: The Future of Global Competition."

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