by Erwin Chemerinsky, Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law
I have many favorite memories of Stephen Reinhardt. Once I was a speaker at a national conference of federal court of appeals judges and was in the audience when Justice Antonin Scalia spoke. Justice Scalia said that his personal beliefs never influenced his decisions and specifically that his Catholic faith had nothing to do with his views on Roe v. Wade. I was sitting next to Judge Reinhardt, who said, not in a whisper, “That’s such bullshit.” Those sitting in the that part of the room burst into laughter.
Reinhardt will be most remembered as a fiercely liberal judge in a time of an increasingly conservative Supreme Court. The majority of the Supreme Court were Republican appointees for the entire 38 years that Reinhardt was on the bench. It meant that he was sometimes reversed by the higher Court. But he always was steadfast that his role was to interpret the Constitution and the law to the best of his ability, not to predict what the Supreme Court might do. I once heard him asked about his reversal rate in the Supreme Court and he was dismissive that should matter. He quipped, “They can’t reverse all of them.” It certainly was not that he did not care about the ultimate outcome. And it certainly was not that he ever would flout the Court. Rather his view was that his job was to call them the way he saw them until the Court said otherwise.