Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—March 27

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1931—Stephen Reinhardt is born in New York City. Appointed to the Ninth Circuit by Jimmy Carter in 1980 and serving in active status on that court until his death in March 2018, Judge Reinhardt will earn notoriety as the “liberal badboy of the federal judiciary.” In his overtly political view of judging, “The judgments about the Constitution are value judgments. Judges exercise their own independent value judgments. You reach the answer that essentially your values tell you to reach.” Undeterred by, and indeed defiantly proud of, being perhaps the most overturned judge in history (frequently by a unanimous Supreme Court), Reinhardt declares, “They can’t catch them all.”

2014—Canon 3A(6) of the Code of Conduct for United States Judges states: “A judge should not make public comment on the merits of a matter pending or impending in any court.” But that clear bar somehow doesn’t stop Second Circuit judge Guido Calabresi from collaborating in the publication of an extended interview about the pending Supreme Court case of Town of Greece v. Galloway. That case, in which Calabresi wrote the opinion under review, presents the question whether a town’s practice of allowing volunteer private citizens to open board meetings with a prayer violates the Establishment Clause.

Among other things, Calabresi seeks to defend his ruling, says that it “would be too bad” if the Court reverses it, identifies what he thinks is the “closest question in our case,” and rejects the notion of a “non-sectarian prayer.”

Barely a month later, the Supreme Court, by a vote of 5 to 4, will reverse Calabresi’s ruling.

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