Eminent Domain

The first signed opinion of the term is also the first reversal of Judge Stephen Reinhardt (probably with more to come). In a 5-4 ruling written by Justice Kennedy, the Court upheld the "catchall" provision of the California death penalty statute. Roberts, Scalia, Thomas, and Alito joined Kennedy in the majority, with Justice Stevens writing for the dissenters.

I find it rather interesting that the first opinion of the term would be a 5-4 decision. It's more common to have a 9-0 or an 8-1 decision come down first. Just as a matter of time and effort, it's usually easier to crank out an opinion on an "easy" case than it is to circulate drafts of opinions in a strongly split case.

The Judge Reinhardt issue is pretty interesting too. Loyal readers will know that my feelings for Judge Reinhardt aren't exactly a secret. His approach to judicial decisionmaking is a wonderful example of a Warren-era, dinosaur point of view of the bench. A commenter on Volokh linked this analysis of the Ninth Circuit Court of Appeals. It has some interesting things to say about Reinhardt...

Over the past ten years [Ed. This study was written in 2004], the Supreme Court has reversed decisions that Judge Reinhardt authored or joined an amazing 53 times, accounting for more than one-third of the Ninth Circuit cases reversed by the Supreme Court over the past decade (53 of 143, 37 percent). His average of 5.3 reversals per Supreme Court term far outpaces his fellow jurists on the Ninth Circuit, or on any other federal appeals court nationwide.

Those are some impressive numbers. They only get better...

In addition, Judge Reinhardt has personally authored 18 opinions that the Supreme Court reversed during the past decade, meaning that Judge Reinhardt's own legal reasoning is rejected by the Supreme Court on average nearly two times each term. To put these numbers in perspective, consider that a single judge (out of hundreds of federal judges nationwide) is responsible for multiple reversals during each term of the Supreme Court, though the Court only decides about 80 total cases each term.

Reinhardt's reputation is famous (or infamous). As I first read this study, I began to wonder if Reinhardt is bothered by this reversal record and people like me writing about it often. Probably not. After all, he's a federal judge. I'm not. He has the power to write these opinions, and he's got lifetime tenure. I'm a 3L looking for a job. I think he wins out.

What is Reinhardt's actual problem...

By his own account, Judge Reinhardt's stunning reversal record is not due to an innate inability to follow the law and Supreme Court precedent, but his own predisposition to incorporate personal social, political and moral judgments into his decision-making process. Judge Reinhardt's own admissions reveal that he thinks of himself not as neutral arbiter allowing for an objective determination based on the facts and the relevant law, but as someone who necessarily adjudicates cases based, at least in part, upon his own values.

Is anyone shocked that he was a Carter appointee?