The American Civil Liberties Union received an early holiday present this year, but as a result thousands of Arizona schoolchildren may find coal in their stockings.
That's because a bogus legal challenge to Arizona's individual scholarship tax credit program will be heard by a panel of the U.S. Court of Appeals for the 9th Circuit that includes Judge Stephen Reinhardt.
When the Arizona Supreme Court upheld the scholarship program against a First Amendment and state constitution claim in 1999 and the U.S. Supreme Court declined to review the decision, the teachers union plaintiffs went home. But not the ACLU, which re-filed the case in federal court. It could not hope to win on the law not one but two Supreme Court decisions make crystal clear such programs are permissible, but on the chance the case would wind up before the Ninth Circuit, which views the U.S. Constitution as a series of suggestions.
Judge Reinhardt surely is the most overturned judge on the nations most overturned court. Columnist George Will has quipped, There should be two Supreme Courts, one to . . . reverse the 9th Circuit, the other to hear all other cases. Indeed, in 2005, nearly one-quarter of the Supreme Courts docket came from that court, with the remainder coming from the other 11 federal appeals courts and 50 state supreme courts. Reinhardt has written or joined as many as seven decisions overturned in a single year; a number eclipsing many judges over their entire careers.
Reinhardt, who has served on the court since President Jimmy Carter appointed him in 1980, begins with the policy result he wants and reasons backward. He consistently overturns the death penalty, no matter how heinous or premeditated the crime; he found no individual right to keep and bear arms in the Second Amendment; he struck down the pledge of allegiance but found that parents have no right to prevent a public school survey asking first, third, and fifth graders about intimate sexual matters (I kid you not). His rulings are so extreme that The Onion lampooned Judge Reinhardt in an article titled, Activist Judge Cancels Christmas.
How apt. Lets hope that its not too late for Judge Reinhardt to discover the Constitution. At least the Supreme Court needs to remind him about it once again.
Clint Bolick is the director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute.
Goldwater Institute: Education Scholarships: Expanding Opportunities for Students, Saving Taxpayers Money
The Onion: Activist Judge Cancels Christmas