Judge shopping has roots with Reinhardt on Appeals Court

Iwas at a legal conference in another state the first time I heard someone repeat a quotation attributed to Judge Stephen Reinhardt, a misogynistic sexual harasser and publicity hound who served 37 years as a judge on the federal 9th Circuit Court of Appeals in California. Reinhardt, who died in 2018, assiduously built his brand as a leading judicial liberal, in the 1960s sense of liberal.

His decisions were frequently overruled by the Supreme Court. When asked how he felt about that, he supposedly replied, “They can’t overrule ’em all.” That quotation became an urban legend among lawyers, one I subsequently heard repeated many times. The Washington Examiner even attributed a version of it to him in print.

I was never convinced Reinhardt said such a thing, at least not in public, but it kept getting repeated because it so perfectly captured his approach to judging. If he defied the Supreme Court in 10 decisions, and the court overruled four, that meant he, and not the Supreme Court, had the last word 60% of the time.

He used his power as judge to advance a political agenda. In particular, he was opposed to capital punishment. If the facts of a given cases didn’t provide a reason for reversing a death sentence, he simply lied about the facts. (See Wong v. Belmontes, 558 U.S. 15 (2009).)

One way of looking at his career, the way both he and his conservative critics promoted, was “liberal.” But another, and I think more accurate, assessment can be found in an unlikely place. Yale Professor Timothy Snyder, who rose to