- The Washington Times - Friday, June 28, 2002

The federal appeals court in San Francisco that found the Pledge of Allegiance unconstitutional Wednesday is known as an activist court whose decisions regularly are overturned by the U.S. Supreme Court, legal analysts said yesterday.
"The 9th Circuit Court of Appeals' liberal record … and its reputation as the most overturned court in the country … have almost grown to the status of an urban myth," said Steven Fitschen, president of the National Legal Foundation.
Mr. Fitschen noted that in 1996-97, the Supreme Court issued opinions in nearly 90 cases. "It reversed 27 of the 28 rulings it got from the 9th Circuit, and 17 times, the reversals were unanimous," he said.
Thomas L. Jipping, senior fellow in legal studies for Concerned Women of America, said the court's Pledge decision was more evidence that the 9th District judges "believe they can make law and that they can hijack the culture and run the country," rather than follow the Constitution.
In 1997, Mr. Jipping led efforts against judicial activism. In congressional hearings, he identified as an abuser of judicial power Judge Stephen Reinhardt, a member of the three-judge panel that deemed the Pledge's phrase "under God" an unconstitutional endorsement of religion.
By that time, the Weekly Standard had described Judge Reinhardt, appointed by President Carter, as the "country's most audacious liberal judge" and "one of the most overturned judges in history."
The "noteworthy" rulings in Judge Reinhardt's resume include many that have been reversed by the Supreme Court. In one such opinion, the judge wrote that a Mexican doctor who helped kill a Drug Enforcement Administration agent should not have been forcibly brought to this country for trial over Mexico's objections.
Judge Reinhardt also ruled that a provision in the Arizona Constitution mandating English as the official language of government was "overbroad in violation of the First Amendment." The Supreme Court vacated and remanded the ruling.
In 1992, Judge Reinhardt denounced the Supreme Court, former President Ronald Reagan and President Bush for what he called a lack of confidence in the federal courts by blacks. In a commencement address, he called the federal courts a "bastion of white power."
Anthony T. Caso, general counsel for the Pacific Legal Foundation, said the 9th Circuit's rate of reversal is "definitely ahead of the average" and has not gone unnoticed by the Supreme Court.
Mr. Caso recalled that Justice Sandra Day O'Connor, who has jurisdiction over the 9th Circuit, visited with members of that bench several years ago and focused attention on the fact "that they were overturned on a regular basis."
To reduce that problem, Mr. Caso said, Justice O'Connor recommended that the 9th Circuit opt for having the full 11-member bench decide cases more often, rather than relying on three-judge panels like the one that ruled this week in the Pledge case.
Yesterday, one of the federal appeals court judges put the Pledge ruling on hold indefinitely. The 9th Circuit includes California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon and Washington state.
The Supreme Court yesterday was unable to provide figures on 9th Circuit reversals, saying it did not classify such data according to circuits.
But the San Francisco Chronicle said there were years in the 1980s and 1990s when the circuit was overturned more than 80 percent of the time. The Los Angeles Times said the circuit has been reversed in 12 of 16 cases this year.

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