Judge Reinhardt is perhaps the most liberal judge on the federalrnbench. In a recent hont-page story in the Wall Street journal,rnJudge Alex Kozinski, a fellow Ninth Circuit judge and arnpowerful force in the federal judiciary, gave Judge Reinhardtrnthe dubious honor of being “probably the best lawyer we havernon the court…. He actually knows how to work the precedent,rnand he works it looking for cracks and seams that he can exploit.”rnIn Compassion in Dying, he stretched this talent wellrnpast the breaking point. Misusing precedent and ignoring establishedrndoctrines, Reinhardt somehow managed to discover arnnew constitutional right growing on the anemic stem of thernCasey decision. Yet he remains unabashed at this flim-flam. “Irnthink this may be my best ever,” he says of the opinion.rnStarting from the horrifying premise that federal judgesrn”must strive to resist the natural judicial impulse to limit ourrnvision to that which can plainly be observed on the face of thern[Constitution],” Reinhardt proceeded to pronounce thatrnWashington State was behaving unconstitutionally when itrnforbade doctors from prescribing lethal drug overdoses to thernterminally ill. Aside from the fact that Reinhardt himself hasrnnever once had an impulse to “limit his vision” during his 16rnyears on the bench, the assertion that judges should feel free torntreat the Constitution as a prospector treats his claim is simplyrnwrong. In fact, the Supreme Court recently pointed out thatrn”the doctrine of judicial self-restraint requires [the federalrncourts] to exercise the utmost care whenever [they] are asked tornbreak new ground” in the area of rights not explicitly listed inrnthe Constitution. Ignoring this straight-to-the-point admonition.rnJudge Reinhardt unpacked his shovel.rnReinhardt recognized that he had to establish two propositionsrnto keep his excavation from caving in: first, that the 14thrnAmendment recognizes a liberty interest in suicide; second,rnthat any such interest is fundamental enough to overcome arnstate’s interest in the preservation of life. The Supreme Courtrnhas stated quite forcefully in case after case that a liberty interestrnis not fundamental unless it is “a principle of justice so rootedrnin the traditions and conscience of our people as to bernranked as fundamental.” As Justice Scalia has observed, the libertyrnto commit suicide has no such roots: “American law has alwaysrnaccorded the State the power to prevent, by force if necessary,rnsuicide—including suicide by refusing to take appropriaternmeasures necessary to preserve one’s life.” Although Reinhardtrnmade a halfhearted effort to justify his newly discovered rightrnon historical grounds (including a hilarious passage in which herncites Sir Thomas More as a big supporter of assisted suicide, apparentlyrnunaware that Utopia was a satire), he had to know thatrnthe Supreme Court would almost certainly refuse to declare arnfundamental right to suicide.rnSo Reinhardt found himself in a box. He understood thatrncalling the right fundamental would be futile. The other optionrn—calling the right nonfundamental—would have resultedrnin a clear and easy victory for Washington. There was nowherernto go but to the peculiar jurisprudence of the Casey decision.rnCasey presented Reinhardt with problems of its own. Foremost,rnof course, was that the Supreme Court has never appliedrnCasey outside of the abortion context. Reinhardt himself recognizedrnthis problem in a 1993 law school address, when he admittedrnthat the Casey decision grew out of political pressures onrnthe Court rather than out of a fundamental desire to redirectrn14th Amendment jurisprudence. To cope with this problem,rnReinhardt executed a rather ingenious reinterpretation of recentrnSupreme Court precedent in an attempt to show that thernCourt has been moving toward a less rigid analysis of 14thrnAmendment liberty interests. In essence, Reinhardt arguedrnthat Casey represented the Supreme Court’s abandonment ofrnits traditional fundamental/nonfundamental division of libertyrninterests in favor of a continuum where a liberty interest and thernstate’s interest could slide up and down a scale depending onrntheir relative weight in any given situation. In Casey, the scalernhappened to alight on the undue burden standard. In anotherrncase, the scale would stop elsewhere.rnReinhardt’s position is unsupportable. Casey was not a decisionrndesigned to realign 14th Amendment jurisprudence. Itrnwas, as Reinhardt himself recognized in 1993, sui generis—arnsingular opinion growing out of singular pressures on thernCourt. Casey was a decision based primarily on the power ofrnstare decisis, the principle of Anglo-American law that dictatesrnthat prior case law should not be repudiated absent a compellingrnjustification. “We conclude,” said the plurality, “thatrnthe basic decision in Roe was based on a constitutional analysisrnwhich we cannot now repudiate . . . [because] the immediaternquestion is not the soundness of Roe’s resolution of the issue,rnbut the precedential force that must be accorded its holding.”rnIn other words, Casey was an exercise in the jurisprudence ofrncowardice: the Court was afraid to overrule Roe, but also afraidrnto endorse it. It chose, therefore, to hide behind the thin veil ofrnprecedent. Had an earlier Court shown such a lack of moralrncourage, “separate but equal” would still be the law of the land.rnThis weak little opinion hardly provides a ringing endorsementrnfor Reinhardt’s contention that it represents a fundamental realignmentrnof constitutional interpretation. Constitutional gadflyrnLaurence Tribe has said that he finds “much to admire” inrnReinhardt’s interpretation of Casey. Perhaps he was reading thernopinion for its comic potential.rnBeyond the misuse of precedent, one must also examine therneffect on the country if Reinhardt’s “analysis” is correct. If thernsliding-scale approach became the law, littering ordinances,rnspeeding laws, and stop-sign violations could all generate federalrncases. On the sliding scale, every act of the state that limitsrnmy freedom would be subject to challenge. The adoption ofrnthis approach would be an invitation for the federal courts torndig into the laws on the books of every state in the country on arncase-by-case basis. Our state legislatures would operate at thernwhim of the federal judiciary. This may be an outcome thatrnReinhardt and his brethren on the Imperial Judiciary wouldrnrelish, but it is an outcome that the Supreme Court most certainlyrnwill not endorse.rnThe Second Circuit decision took a more conservativernapproach in a Souteresque sort of way. Judge Roger J.rnMiner, writing for two of the three judges on the panel, beganrnby explicitly repudiating Judge Reinhardt’s due process analysisrnon the grounds that a federal court “is most vulnerable andrncomes nearest to illegitimacy when it deals with judge-madernconstitutional law having little or no cognizable roots in the languagernor design of the Constitution.” But this moment of lucidityrndid not stop him from reaching the same result as JudgernReinhardt, albeit by walking a different path through the darkrnforest of the 14th Amendment. Where Reinhardt strode boldlyrnalong the smoldering trail cut by the abortion cases like somerndemented camp-follower of General Sherman, Judge Minerrncrept quietly into a dusty corner of the Equal Protection Clausernto find support for his position. His conclusions are equally unsupportable.rnAUGUST 1996/25rnrnrn