Bench Memos

Law & the Courts

Yet Another Supreme Court Smackdown of Stephen Reinhardt

Notorious Ninth Circuit judge (or, if you prefer, liberal lion) Stephen Reinhardt—probably the most reversed judge ever—died more than two years ago, on March 29, 2018, but he is still generating posthumous smackdowns from the Supreme Court (as well as other controversies).

In a unanimous ruling today (in United States v. Sineneng-Smith), the Supreme Court, in an opinion by Justice Ginsburg, held that the Ninth Circuit panel on which Reinhardt was the presiding judge until his death—and at the time of the key order that the Court condemns—“departed so drastically from the principle of party representation as to constitute an abuse of discretion.” Specifically, the Court faulted the panel for its “takeover of the appeal,” for intervening to displace the arguments made by “competent counsel” on Sineneng-Smith’s behalf and to substitute instead a “radical transformation” of the case that “goes well beyond the pale.” Reinhardt and company (Judges Tashima and Berzon) effected that transformation when, after oral argument, they invited three left-wing organizations to file amicus briefs on three sweeping issues. (The panel issued its order on September 18, 2017; the opinion on the merits was issued after Reinhardt’s death, with Judge Andrew Hurwitz replacing Reinhardt on the panel.)

As Ginsburg sums things up (some citations omitted):

No extraordinary circumstances justified the panel’s takeover of the appeal. Sineneng-Smith herself had raised a vagueness argument and First Amendment arguments homing in on her own conduct, not that of others. Electing not to address the party-presented controversy, the panel projected that §1324(a)(1)(A)(iv) might cover a wide swath of protected speech, including political advocacy, legal advice, even a grandmother’s plea to her alien grandchild to remain in the United States. Nevermind that Sineneng-Smith’s counsel had presented a contrary theory of the case in the District Court, and that this Court has repeatedly warned that “invalidation for [First Amendment] overbreadth is ‘strong medicine’ that is not to be ‘casually employed.’”


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