By Connor Gallagher
Connor Gallagher is a sophomore at the University of Pennsylvania studying chemical and biomolecular engineering.
Ninth Circuit Judge Stephen Reinhardt died on Thursday, March 29, at the age of 87. He was appointed to the federal bench in 1980 by President Carter, serving on the Ninth Circuit for nearly four decades. 
Considered a “liberal lion,” Reinhardt frequently found himself at odds with the conservative-leaning Supreme Courts of the past several decades. Maybe the most famous was the 2004 Supreme Court decision, Elk Grove Unified School District v. Newdow, which overruled his holding that the phrase “under God” in the Pledge of Allegiance violates the Establishment Clause.  Reinhardt also wrote opinions striking down a Washington State law banning physician-assisted suicide and the contentious “Prop 8” ballot proposition banning same-sex marriage in California. The former was overturned by the Supreme Court , the latter vacated. 
In his last months, Reinhardt expressed his displeasure with the Trump Administration’s immigration policies. Last May, in an opinion that denied an emergency stay of deportation for petitioner Andres Magana Ortiz, Reinhardt ended his concurrence with the pithy but poignant, “I concur as a judge, but as a citizen I do not.”  Magana Ortiz first entered the United States at the age of 15 and has lived here for 28 years, with three American children aged 12, 14, and 20.  He is a “respected businessman in Hawaii” who has worked, free of charge, with the Department of Agriculture to help study pest problems affecting Hawaiian harvests.  Reinhardt could not contain his contempt for what he saw as an unjust action:
President Trump has claimed that his immigration policies would target the “bad hombres.” The government’s decision to remove Magana Ortiz shows that even the “good hombres” are not safe…. We are unable to prevent Magana Ortiz’s removal, yet it is contrary to the values of this nation and its legal system. 
Conservatives would be proud of such judicial restraint, even if Reinhardt denounced the President in doing so; Reinhardt upheld precedent and the law as explicitly written, despite what he felt to be a fundamentally un-American act.
If Reinhardt had followed the feelings of his inner “citizen,” perhaps he could have turned to the judicial philosophy of one of his peers, recently-retired Judge Richard Posner, a member of the Seventh Circuit for 35 years. Yet another “liberal lion” (if not a late convert to the cause) to depart the federal bench, Posner displayed considerably less deference to what he calls “the formalist tradition in the law,” compared to Reinhardt. 
Posner’s “pragmatic” legal philosophy is absolutely astounding, primarily because he dared to voice it. An excerpt from a New York Times profile summarizes:
“I pay very little attention to legal rules, statutes, constitutional provisions,” Judge Posner said. “A case is just a dispute. The first thing you do is ask yourself — forget about the law — what is a sensible resolution of this dispute?”
The next thing, he said, was to see if a recent Supreme Court precedent or some other legal obstacle stood in the way of ruling in favor of that sensible resolution. “And the answer is that’s actually rarely the case,” he said. “When you have a Supreme Court case or something similar, they’re often extremely easy to get around.” 
That Posner would dare admit that he ignores legal rules and “gets around” precedent provides easy ammunition for critics to peg Posner’s philosophy as antithetical to the 300-year-old American legal tradition. For instance, the Federalist Society, after the death of Associate Justice Antonin Scalia in 2016, fiercely defended Scalia’s insistence that “the role of a judge in our American democracy should be limited” to “interpret[ing] a law based on its text and original meaning.”  They add that “Scalia was especially critical of judges who say the law means whatever it ought to mean.”  These “judges” almost definitely include Posner.
Debating whether Reinhardt’s or Posner’s approach is correct––or if neither are right––misses, I think, the larger question at play here: In this era of automation, why do we appoint human judges at all? Why do we go through the increasingly partisan battle to place ideologically sympathetic judges on our federal courts if judging fundamentally amounts to reading the law, looking at precedent, and applying it dispassionately to the case at hand? What would be the difference between Reinhardt’s decision and a computer’s? Appointing software to the judiciary would surely give new meaning to the notion of a “speedy” trial.
What distinguishes a human judge from a robotic one is a sense of justice, a quality that features far more prominently in media depictions of our courtrooms than in actuality. In fact, I would say that the most important conflict in the American legal tradition is not liberal against conservative, or activism versus restraint, but instead the delicate balance between justice and law. Is our legal system working ideally if our laws ultimately produce unjust outcomes? In our carefully constructed framework of checks and balances, shouldn’t judges be able not just to strike down Congress’s laws as unconstitutional, but reasonably interpret Congress’s avowed purpose so as to enjoin the government from hurting those who least deserve punishment?
Judge Reinhardt should not have had to make a distinction between his roles as citizen and judge in adjudicating Magana Ortiz’s stay request last year. The fact that he felt it necessary is symptomatic of our larger societal fascination with appointing judges who never dare to question the justice of the proceedings before them.
I have no illusions that adopting Posner’s conception of a case as merely a dispute requiring just resolution carries with it immense potential for abuse. Yet I cannot help but feel that judges like Reinhardt and Posner should be able to enforce their instincts, particularly in cases where doing so would not injure external parties. Adherence to the letter of the law is most applicable in matters where both parties, or third parties, could materially suffer; thus, in the name of “equal justice under law,” those involved deserve an outcome that stringently comports with established law and jurisprudence.  However, neither the government nor any American would endure material harm if Magana Ortiz were permitted to remain in Hawaii.
I don’t want a computer program deciding such emotionally-charged cases. I want a human, because humans generally have the decency to cast aside rules that hurt the wrong people.
1. Sam Roberts, “Stephen Reinhardt, Liberal Lion of Federal Court, Dies at 87,” The New York Times, April 2, 2018. https://www.nytimes.com/2018/04/02/obituaries/stephen-reinhardt-liberal-lion-of-federal-court-dies-at-87.html.
2. Newdow, et al. v. Rio Linda Union School District (2010), United States Court of Appeals for the Ninth Circuit, Nos. 05-17527, 05-17344, 06-15093, December 2007, at 3966. http://www.ushistory.org/betsy/images/courtdecision05-17257.pdf.
3. Washington v. Glucksberg, 521 U.S. 702 (1997). https://supreme.justia.com/cases/federal/us/521/702/case.html.
4. Hollingsworth v. Perry, 570 U.S. __ (2013). https://www.supremecourt.gov/opinions/12pdf/12-144_8ok0.pdf.
5. Andres Magana Ortiz v. Sessions (2017), United States Court of Appeals for the Ninth Circuit, No. 17-16014, concurring opinion by Judge Stephen Reinhardt. https://cdn.ca9.uscourts.gov/datastore/opinions/2017/05/30/17-16014.pdf.
6. Ibid., at 7.
7. Adam Liptak, “An Exit Interview With Richard Posner, Judicial Provocateur,” The New York Times, September 11, 2017. https://www.nytimes.com/2017/09/11/us/politics/judge-richard-posner-retirement.html.
8. “Justice Scalia and the Proper Role of a Judge,” The Federalist Society, March 7, 2016. https://fedsoc.org/commentary/blog-posts/justice-scalia-and-the-proper-role-of-a-judge
9. West façade of the Supreme Court Building, 1 First Street, NE, Washington, DC 20543. https://www.supremecourt.gov/about/photos.aspx.
Photo Credit: Pixabay User Mark Thomas
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.