Bois/Olsen Get Roughed Up Abit in Reinhardt’s Perry Concurrence

Posted on January 5th, 2011 by Katherine Franke

Judge Stephen Reinhardt, the most liberal member of the panel that heard the appeal in Perry v. Schwarzenegger, filed a separate opinion concurring in the court’s standing decision issued yesterday.  A couple things are interesting about Judge Reinhardt’s concurrence:

1. He understood the court in this case to have a uniquely broad audience, given the high degree of public attention to the case generally, and the 9th Circuit appeal more specifically.  He opened his opinion with the observation that: “Oral argument before this court was viewed on television and the Internet by more people than have ever watched an appellate court proceeding in the history of the Nation, and by innumerable law students across the country.”  Given this awareness he felt it important to address this larger audience in terms and in tone that were different from the court’s per curium opinion certifying the standing issue to the California Supreme Court.  While the opinion announcing the court’s decision on standing read like a “regular” appellate opinion addressed to a legal audience, Judge Reinhardt’s opinion is written in clear, non-jargony language.  The only citations he makes are to popular presses (The New Yorker, The New York Times, and the Wall Street Journal Blog, although he does cite three law review articles he wrote), and he writes in a tone that is clearly intended to explain to a non-legal audience both the idea of standing and why the court sent the issue to the California Supreme Court.  “Members of the public familiar with cases such as Brown v. Board of Education and Roe v. Wade might have thought that the constitutionality of Proposition 8 could readily be decided when a legal challenge was made to it in federal court,” he writes.

Just as the Supreme Court’s opinion in Brown v. Board of Education was self-consciously written in a style that made it accessible to a broad audience (both in terms of its language and its length), Judge Reinhardt signals a sensitivity to the fact that this case is being consumed by a much larger audience than legal and gay rights elites.  This kind of populist turn in legal opinion writing is worth noting.

2. Judge Reinhardt also uses the separate concurrence to take aim at the lawyering done on both sides of the case – I was particularly surprised by the swipe he makes at David Bois and Ted Olsen – the self-professed “dream team” – that initiated this litigation over the objections of most lgbt civil rights organizations.  Reinhardt explains to the reading public that the problems of standing were avoidable (“All I can say now is that the issues concerning standing were wholly avoidable in this case.“), and were due in significant part to a lawyering judgment/mistake made by the Bois/Olsen team: “it is clear that all of this would have been unnecessary and Plaintiffs could have obtained a statewide injunction had they filed an action against a broader set of defendants, a simple matter of pleading. Why preeminent counsel and the major law firms of which they are a part failed to do that is a matter on which I will not speculate.”  Ouch!  The reasons why plaintiffs’ counsel made this strategic decision aside, it’s unusual to get called out in such a personal manner by a circuit court judge.  The dream team ought feel a bit, well, chastened by this.

Judge Reinhardt’s full concurrence is here.


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