Dissenting Against the Supreme Courts Rightward Shift by Linda Greenhouse

'When Stephen Reinhardt, the famously liberal judge who died last month after 37 years on the federal appellate bench, visited Yale Law School a few years ago, a student asked him what the point was of issuing decision after decision that the Supreme Court would predictably overturn. The question was a challenge, but Judge Reinhardt took it with a smile. “They can’t catch ’em all,” he said.

I didn’t know then that this was Judge Reinhardt’s stock answer to a frequent question, and it startled me; the judge’s tone may have been mild, but his stance was one of open resistance, defiance even, toward a Supreme Court that was moving ever further to his right.

In fact, if the Supreme Court in recent years didn’t catch them all, it caught a lot of them, thanks in no small measure to Judge Reinhardt’s conservative colleagues on the United States Court of Appeals for the Ninth Circuit in San Francisco. Federal appeals court judges sit in panels of three to hear and decide cases. But the court’s judges as a whole can vote to rehear a case “en banc” — by the full court, or in the unwieldy 29-member Ninth Circuit, by a panel of 11. A judge may seek rehearing in the belief that the panel opinion was an outlier, not reflecting the view of the full court.

Conservative members of the Ninth Circuit would often ask for rehearing of a Reinhardt opinion, not because they thought they could prevail against the dominant liberal majority but because they fully expected to be turned down. They would then publish a dissent laying out all the reasons the panel had been mistaken in denying a rehearing. The losing party in the case — often the State of California in its capacity as prosecutor or jailer — could then attach the dissenting opinion to its Supreme Court appeal as a surefire way of getting the attention of like-minded Supreme Court justices.

Judge Reinhardt surely knew this. In fact, a few weeks after his appearance at Yale, one of his conservative colleagues, Judge Diarmuid F. O’Scannlain, also visited, and unabashedly described the process to a group of law students. This left-right dynamic on the Ninth Circuit may sound like an impish game of cat-and-mouse. But it was deadly serious: a contest over the Constitution and over the legal architecture — most often, the law and rules concerning habeas corpus — that either enables or blocks an individual’s assertion of constitutional rights.

Judge Reinhardt was greatly troubled by the Supreme Court’s turn against habeas corpus, the age-old means for a prisoner challenging the legality of his conviction or confinement to get before a judge. “The collapse of habeas corpus as a remedy for even the most glaring of constitutional violations ranks among the greater wrongs of our legal era” was the opening sentence of a law review article Judge Reinhardt published three years ago. His project was to keep the habeas corpus door propped open as long as possible in the face of the Supreme Court’s evident determination to shut it ever more tightly.

I knew Judge Reinhardt only slightly. In fact, I had just a single conversation with him, a quarter-century ago, and it was an awkward one. During the Supreme Court’s 1991 term, a term in which many people expected to see a sharp turn to the right following the retirements of Justices William J. Brennan Jr. and Thurgood Marshall, I had written several articles suggesting that control of the court had instead passed to a “moderately conservative middle group of justices,” Sandra Day O’Connor, Anthony M. Kennedy and David H. Souter. One such article appeared on June 26, 1992, days before those three justices provided the necessary votes in Planned Parenthood v. Casey to preserve the constitutional right to abortion. Some people thought I had received the benefit of a leak from the court — something that never fell my way — but my suggestion was based solely on connecting the dots.

I heard that Judge Reinhardt had given a speech in which he criticized me for naïve and muddled thinking: How could I depict as in any way moderate a Supreme Court with William H. Rehnquist as chief justice and with Clarence Thomas sitting in Thurgood Marshall’s seat? Never having had any contact with Judge Reinhardt, I wrote to him, inviting him to tell me directly what he had told his audience. He replied that he was about to visit Washington and would take me to lunch.

During our conversation in the elegant dining room of the Hay-Adams Hotel, the source of our difference became clear. It was a matter of baseline. The baseline against which I was measuring the court was the devastation that most liberals had been expecting given that appointees of Presidents Ronald Reagan and George H. W. Bush now made up a majority of the justices. For Judge Reinhardt, the baseline was the court’s liberal golden era under Chief Justice Earl Warren. And from his perspective, he was completely right.'>>>

https://www.nytimes.com/2018/04/12/opinion/supreme-court-right-shift.html?