Judge Stephen Reinhardt, the senior judge of the 3-judge 9th Circuit panel that is currently hearing the Prop 8 appeal in the Perry v. Schwarzenegger case, is smarting this week.
In two separate appeals in capital punishment cases decided by the U.S. Supreme Court on Wednesday, Reinhardt’s 9th Circuit opinions were unanimously reversed (8-0, with Kagan recused) in language that accused him (and his 2 other colleagues, to be fair) of “judicial disregard”:
“[Judicial] resources are diminished and misspent, however, and confidence in the writ [of habeas corpus] and the law it vindicates undermined, if there is judicial disregard for the sound and established principles that inform its proper issuance. That judicial disregard is inherent in the opinion of the Court of Appeals for the Ninth Circuit here under review.”
Ouch. But it gets worse for Reinhardt. The author of the unusually harsh Supreme Court reprimand above is none other than Justice Anthony Kennedy, who may turn out to be the swing voter Reinhardt may need most in the Prop 8 case (if and when it gets to the Supreme Court) if the other 8 justices split 4-4 down ideological lines, as has been suggested by many court-watchers as a possibility.*
Of course, it’s not like Reinhardt’s handiwork isn’t well-known at the Supreme Court. Over the years, he’s been reversed too many times to count, many of them unanimously so. I’m just saying that if you’re a die-hard liberal who wants to see the Supreme Court rubber-stamp a Reinhardt opinion striking down Prop 8, you’d better factor in Reinhardt’s reputation and track record with those 9 justices.
*(Personally, I believe – perhaps too optimistically – that same-sex marriage is a bridge too far for even the die-hard liberals on the Supreme Court bench. There very well may be 6 or more votes on the Supreme Court to uphold Prop 8. And perhaps especially so after the recent Iowa judicial retention election when voters removed 3 of their justices who voted for same-sex marriage. Although safe from such elections, U.S. Supreme Court justices can still read the newspapers.)
UPDATE – Jan 24 – Supreme Court hands down another unanimous reversal of a Reinhardt opinion. He’s on a roll. More here.