Bench Memos

Law & the Courts

This Day in Liberal Judicial Activism—October 5

Judge Stephen Reinhardt

1995—In 1988, the people of Arizona adopted by ballot initiative a state constitutional provision, Article XXVIII, that establishes English as the official language of Arizona and that provides generally that the state and all its political subdivisions—and “all government officials and employees during the performance of government business”—“shall act in English.” In Yniguez v. Arizonans for Official English, the en banc Ninth Circuit rules, by a 6 to 5 vote, that Article XXVIII violated the First Amendment rights of a former state employee—and awards her one dollar in nominal damages.

Judge Reinhardt writes not only the majority opinion but also a concurring opinion that attacks dissenting Judge Kozinski, who reads settled law as establishing that “government employees have no personal stake in what they say in the course of employment because that speech is the government’s, not theirs.” Showing his contempt for the citizenry, Reinhardt puffs about the “true horror [that] could happen if Judge Kozinki’s view prevailed”: “Government employees could be compelled to parrot racist and sexist slogans, to hurl hateful invective at non-English speaking people asking for assistance, to publicly declare their loyalty to political parties, and to bow toward the national or state capitol three times a day.” Only in Reinhardt’s fevered mind are there budding majorities clamoring for such measures.

Unfortunately for Reinhardt, he gets carried away in more ways than one, as the Supreme Court’s reversal of his ruling in 1997 (in Arizonans for Official English v. Arizona) shows. In her unanimous opinion for the Court, Justice Ginsburg severely scolds Reinhardt and the Ninth Circuit: “The Ninth Circuit had no warrant to proceed as it did. The case had lost the essential elements of a justiciable controversy [when the plaintiff left state employment in April 1990] and should not have been retained for adjudication on the merits by the Court of Appeals.” Reinhardt’s theory that the plaintiff had a live claim for nominal damages against Arizona was defective in two respects, Ginsburg explains. First, the cause of action under which the plaintiff sued creates no remedy against a state. Second, in an earlier order in the case, Reinhardt had barred Arizona from further participation in the case as a party and permitted it only the status of an intervenor. Ginsburg notes this “lapse” in Reinhardt’s reasoning: “The Ninth Circuit did not explain how it arrived at the conclusion that an intervenor the court had designated a nonparty could be subject, nonetheless, to an obligation to pay damages.”

In light of disputes over the meaning of Article XXVIII, Ginsburg also faults the Ninth Circuit for failing to use the certification process to obtain the Arizona supreme court’s authoritative reading of the provision. Noting that the Ninth Circuit “had superintended the case since 1990,” Ginsburg observes: “In litigation generally, and in constitutional litigation most prominently, courts in the United States characteristically pause to ask: Is this conflict really necessary?” Any such attention to limitations on the exercise of judicial power is clearly not characteristic of Reinhardt.

Most Popular

White House

For Democrats, the Party’s Over

If the Democrats are really tempted by impeachment, bring it on. Since the day after the 2016 election they have been threatening this, placing their chips on the Russian-collusion fantasy and then on the phantasmagoric charade of obstruction of justice. The attorney general accurately gave the ingredients of the ... Read More
Politics & Policy

The Worst Cover-Up of All Time

President Donald Trump may be guilty of many things, but a cover-up in the Mueller probe isn’t one of them. House Speaker Nancy Pelosi, attempting to appease forces in the Democratic party eager for impeachment, is accusing him of one, with all the familiar Watergate connotations. The charge is strange, ... Read More
PC Culture

TV Before PC

Affixing one’s glance to the rear-view mirror is usually as ill-advised as staring at one’s own reflection. Still, what a delight it was on Wednesday to see a fresh rendition of “Those Were the Days,” from All in the Family, a show I haven’t watched for nearly 40 years. This time it was Woody Harrelson ... Read More
Politics & Policy

The Democrats’ Other Class War

There is a class war going on inside the Democratic party. Consider these two cris de couer: Writing in the New York Times under the headline “America’s Cities Are Unlivable — Blame Wealthy Liberals,” Farhad Manjoo argues that rich progressives have, through their political domination of cities such as ... Read More