The Nomination of Merrick Garland Is a Victory for Judicial Restraint

Yesterday in the Rose Garden, President Obama said that when he asked senators their views on qualified Supreme Court nominees over the past seven years, “the one name that has come up repeatedly from Republicans and Democrats alike, is Merrick Garland.” That’s because Republicans and Democrats who have studied Garland’s record understand that, not only is he a “consensus nominee,” as Orrin Hatch put it, who, at any other point in our history, “would be very well supported by all sides.” Garland is, in fact, the embodiment of bipartisan judicial restraint. He sincerely believes, as he said in his moving and uncharacteristically emotional speech accepting the nomination, that a judge “must put aside his personal views or preferences, and follow the law—not make it.”

Garland clerked for two legendary judges—Henry Friendly and William Brennan. But he has embraced the deferential jurisprudence of Friendly, rather than the activist jurisprudence of Brennan. (Chief Justice John Roberts, who also clerked for Friendly, said admiringly, “Any time Judge Garland disagrees, you know you’re in a difficult area.”) As Damon Root, the libertarian writer accurately concluded, “While Garland is undoubtedly a legal liberal, his record reflects a version of legal liberalism that tends to line up in favor of broad judicial deference to law enforcement and wartime executive power.” That’s why Garland’s nomination may discomfit libertarians and progressives who want to use the courts to impose contested visions of social change on a divided nation. But, in any rational world, it should lead traditional conservative and liberal defenders of a limited judicial role to dance in the streets.

I’ve known Merrick Garland and his wife Lynn for the nearly two decades he served on the U.S. Court of Appeals for the D.C. Circuit. And over the course of many conversations and meals over the years, I’ve grown, like so many others, to admire him as the platonic ideal of a judge’s judge, one who exemplifies the qualities that Obama described in the Rose Garden: “a thoughtful, fair-minded judge who follows the law,” who has “shown a rare ability to...persuade colleagues with wide-ranging judicial philosophies to sign on to his opinions” because of his “fundamental temperament—his insistence that all views deserve a respectful hearing.” In this polarized age, and on this polarized Court, it’s hard to imagine more urgently needed qualities in a Supreme Court justice.

Imagine, for the sake of argument, that Republicans give Garland the open-minded hearing he deserves. What kind of justice would he be? In all the major cases he has decided—from campaign-finance cases to administrative regulations, gun cases, terrorism, and crime—Garland has combined a deference to prosecutors, legislators, and executive officials with a willingness to enforce First Amendment and other rights clearly enumerated in the text of the Constitution. For this reason, unlike the nomination of Robert Bork, who sought radically to transform the Court at a time when it was evenly divided, Garland’s nomination is a bipartisan gift to Republicans in a divided age. And it is also a gift to Democrats: Because of his conciliatory temperament, and because of the respect he has earned from conservative and liberal justices alike, Garland is uniquely well suited to guide the Court toward the center under a new liberal majority without calling its legitimacy into question among American citizens as a whole.

Consider campaign finance cases, where the liberal justices have signaled their eagerness to overturn Citizens United. There is no evidence that Garland would lead this charge, although he might ultimately join it. Interpreting Citizens United broadly rather than narrowly in 2010, he joined the unanimous ruling in SpeechNow.org v. FEC, which led to the creation of the super PAC. (It was brought by David Keating, whom Time described as “the man who invented the super PAC,” and it held that annual limits on contributions to campaign advocacy groups violate the First Amendment.) “Because of the Supreme Court's recent decision in Citizens United v. FEC, the analysis is straightforward,” the D.C. Circuit held. According to Citizens United, “independent expenditures do not corrupt or give the appearance of corruption as a matter of law.” As a result, “the government can have no anti-corruption interest in limiting contributions to independent expenditure-only organizations.” Damon Root of Reason wrote that “the D.C. Circuit had an opportunity to accept the federal government's narrowing analysis of Citizens United and it rejected that narrowing analysis,” concluding that Garland’s vote in SpeechNow may. . .  come as something of a disappointment to his would-be progressive supporters.”  

Although Garland felt compelled, along with all of his colleagues, to extend the logic of Citizens United to super PACs, he also takes seriously the goal of eliminating corruption. He wrote the opinion in National Association of Manufacturers v. Taylor, which upheld a lobbying disclosure statute against a First Amendment challenge. “Transparency in government, no less than transparency in choosing government, remains a vital national interest in a democracy,” Garland concluded. (Louis Brandeis, who insisted that “Sunlight is said to be the best of disinfectants,” would have approved.) In 2015, Garland wrote the opinion in Wagner v. Federal Election Commission,  which upheld a ban on federal campaign contributions to candidates, parties, or PACs by government contractors during contract negotiations. Emphasizing the government’s interest in preventing quid-pro-quo corruption, Garland wrote that, “the interest supporting the statute are ones that the Supreme Court has long approved—indeed, endorsed—as legitimate and important grounds for restricting campaign contributions and certain associational freedoms.”

When it comes to religious freedom, Garland has been similarly nuanced. A Washington Post review of Garland’s record in religious-freedom cases identified two cases in which Garland voted for people who said they had suffered from religious discrimination (prisoners who wanted to use communion wine and a religious employee who had been assigned to work on the Sabbath) and two where he voted against their claims. Perhaps most significantly, he voted with the majority of the D.C. Circuit in a 6-3 decision last May to deny an en banc hearing—in other words, to refuse reconsideration by the full court—in a case ruling against a group called Priests for Life, which claimed that the Department of Health and Human Services’s interpretation of the Obamacare contraception mandate violates their religious freedom rights, even though they can opt out. The Supreme Court will soon decide the question, but Garland’s vote signaled his basic agreement with the panel’s decision against the Priests.

More broadly, Garland’s career has been defined by deference to decisions by administrative agencies. During oral arguments in Americans for Safe Access v. DEA, Garland asked, “Don’t we have to defer to the agency? We’re not scientists. They are.” The D.C. Circuit, in an opinion joined by Garland, sided with the Drug Enforcement Agency and its scientists in refusing to redefine marijuana under federal law, which currently classifies it as a Schedule 1 drug with no medical use. In a Harvard Law Review article from 1985, Garland argued for greater deference to agency decisions, and for allowing agencies  discretion about how to carry out Congress’s intent. In a review of Garland’s  “laissez-faire approach to agency action,” Tom Taylor at Bloomberg concluded that “in cases where Garland has felt the need to dissent, a third have involved challenges to agency decision-making, and in each one, Garland went against his colleagues and defended the agency’s rule or holding.”

Garland has been similarly deferential to agencies in labor cases, where he has repeatedly upheld the National Labor Relations Board’s decisions favoring unions and labor. In an analysis for On Labor, law student Hannah Belitz writes that Garland’s “deference to the NLRB thus more likely reflects a strong view favoring deference to agencies than it does a strong view favoring labor.” In a detailed analysis of his NLRB decisions, Belitz concludes: “Between 1997 and 2016, Judge Garland wrote the majority opinion in 22 cases involving appeals of NLRB decisions. In all but four, Judge Garland upheld the entirety of the NLRB’s decision finding that an employer had committed unfair labor practices.  His language in these cases reveals a strong preference for deference.”

In environmental law cases, by contrast, “Judge Garland has demonstrated less deference to agency action,” Belitz concludes, “suggesting that he is not averse to overturning agency decisions with which he strongly disagrees.” Consider the “hapless toad” case, immortalized for environmental junkies in Roberts’s confirmation.  In Rancho Viejo v. Norton (2003), Garland wrote an opinion upholding the government’s application of the Endangered Species Act to the arroyo toad against a Commerce Clause challenge.  Roberts, then his colleague, dissented from the denial of rehearing en banc. ("The panel's approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating ‘Commerce among several States,’” Roberts objected.)  In American Corn Growers Associationn v. EPA, Garland wrote a dissenting opinion from the majority’s decision to uphold an industry challenge to part of the EPA’s anti-haze regulations. In 2004, Garland wrote the majority opinion in Sierra Club v. EPA, where the court sustained a challenge to an EPA regulation of ozone in Washington, D.C., that didn’t bring the area into compliance. And in American Farm Bureau Federation v. EPA, the court accepted an environmental challenge to the EPA’s ruling on fine particulate matter. Richard Lazarus of Harvard Law School told Mother Jones that Garland has a good reputation among environmental law scholars. Although “no one would say Garland is a hardened environmentalist, we think we’ll get a straight shot from him,” Lazarus said. “He doesn’t come with any inherent skepticism about the federal government overreaching [on environmental regulation]. In terms of looking for someone who would give a fair hearing [to the Clean Power Plan], he’s a big shift from Scalia.”

On the Second Amendment right to bear arms, conservative commenters have argued that Garland is “very liberal” on the Second Amendment. They point to Garland’s vote in NRA v. Reno, where the court upheld the Justice Department’s regulation providing for the temporary retention of data generated during gun purchasers’ background checks. But Garland’s vote was based on his conclusion that the regulation was a reasonable interpretation of the Brady Act. Similarly, Second Amendment defenders point to Garland’s vote to review the D.C. Circuit's decision striking down the D.C. handgun ban—a decision that the Supreme Court subsequently affirmed in the landmark District of Columbia v. Heller case in 2007. Garland’s vote was consistent with Supreme Court case law at the time suggesting that the Second Amendment did not protect an individual right to bear arms. He would likely vote to uphold the kind of reasonable gun regulations that the Supreme Court in Heller suggested were consistent with the Constitution; and therefore, he and the other liberals may conclude there is no need to overturn Heller in the end.

More significant for conservatives should be Garland’s general deference to the police in criminal cases. In a review of Garland’s criminal cases in 2010, SCOTUSblog concluded that “Judge Garland rarely votes in favor of criminal defendants’ appeals of their convictions...in ten criminal cases, Judge Garland has disagreed with his more liberal colleagues; in each, he adopted the position that was more favorable to the government or declined to reach a question on which the majority of the court had adopted a position favorable to a defendant.” This record is consistent with Garland’s record as the number two Justice Department official prosecuting the Oklahoma City bombing case. As Obama noted, Garland considered the prosecution “the most important thing I have ever done in my life.”

Garland has been generally deferential to the government in some notable terrorism cases, perhaps reflecting his experience coordinating the investigation and prosecution of the Unabomber, Ted Kaczynski. He joined the majority opinion in Al Odah v. United States, denying habeas corpus protections to enemy combatants held at Guantanamo Bay. The Supreme Court subsequently overruled that decision in Boumediene v. Bush, although it’s not obvious, as Roberts pointed out in dissent, that the decision was consistent with the existing precedent that Garland had to apply. At the same time, Garland has not always deferred to the government in Guantanamo related terrorism cases. In Parhat v. Gates a Combatant Status Review Tribunal decided that Huzaifa Parhat, a detainee at Guantanamo Bay, was an "enemy combatant." Garland, writing for the majority, found that the Tribunal’s decision was invalid because it had based its decision on inadequate evidence.

Like Louis Brandeis, who was confirmed on June 1, 1916, 125 days after his nomination, Garland is not an unwavering devotee of judicial deference. He has generally been a robust defender, for example, of the First Amendment rights of speech and petition. Dissenting in Lee v. DOJ, he wrote that “if our case law has that consequence [of eliminating broad application of the reporter’s privilege], it will undermine the Founders’ intention to protect the press ‘so that it could bare the secrets of the government and inform the people.’” And he wrote the court’s opinion in Initiative and Referendum Institute v. U.S.P.S., which upheld a First Amendment challenge to a regulation prohibiting the solicitation of signatures outside post offices. There was “no question,” he wrote, that the solicitation of signatures constitutes protected speech.

Like the conservative icon Henry Friendly, in short, Garland is a judge who enforces rights enumerated in the Constitution while generally deferring to legislatures, agencies, and elected officials when the Constitution doesn’t speak clearly. He recognizes, as Justice Oliver Wendell Holmes Jr. put it, that the Constitution “is made for people of fundamentally differing views.” That’s why there’s no nominee better suited to bring the Court and the country together in these polarized times. And Republicans are already acknowledging that they are unlikely to get a better nominee from a Democratic president. “If Hillary Clinton or Bernie Sanders is elected president in November, the Senate could then proceed to act on the Garland nomination,” Ed Whalen wrote hours after the Garland nomination. In this polarized political climate, it’s hard to imagine higher praise.