There was an awkward moment Wednesday morning when reporters across DC learned that the hours of time they’d spent researching Judge Sri Srinivasan was all for naught. The nomination of Chief Judge Merrick Garland (who is older than any Supreme Court nominee since the Nixon administration and, in Fox News’ words, is the “most conservative nominee by a Dem in the modern era“) surprised many Court-watchers. It also triggered a deep sense of ambivalence among many liberals. As SCOTUSBlog noted shortly after news of the Garland nomination became public:
Progressive groups will fall in line, and deeply respect Garland and the President’s choice, but their actual disappointment will be deep.
— SCOTUSblog (@SCOTUSblog) March 16, 2016
It did not take long for this falling in line to begin. In the hours after Garland’s nomination, reporters’ inboxes filled with statements — many of them using identical language and nearly all of them clearly drafted off the same talking points — offering their support. In case you haven’t heard already, Garland “deserves a fair hearing” and it is time for Senate Republicans to “do their job.”
Meanwhile, many writers offered sharper observations. Slate’s Mark Joseph Stern labeled Garland “an extraordinarily disappointing choice.” Political scientist Scott Lemieux warned that concerns over whether the Senate is being unfair to Garland “likely won’t galvanize any specific constituency.” Talking Points Memo’s Tierney Sneed offered that “President Obama’s choice of Merrick Garland to succeed justice Scalia on the Supreme Court was not the nominee progressives were dreaming of a month ago, when Scalia’s unexpected death opened up a once-in-a-generation opportunity to transform the Supreme Court.”
In case there is any doubt, there’s little risk that Garland will become another member of the Court’s conservative bloc. University of Michigan law professor and former Ruth Bader Ginsburg clerk Sam Bagenstos predicted on Twitter that a Justice Garland would prove similar to Justice Stephen Breyer — an almost entirely reliable member of the Court’s liberal bloc with occasional bouts of heterodoxy. As Lemieux notes, Breyer “voted with Ruth Bader Ginsburg 93 percent of the time in the most recently completed term.”
Garland’s moderate views are likely to matter a great deal, however, once liberal advocates start bringing cases up to the Supreme Court to see just how far the Court’s new majority is willing to push the law to the left.
Last June, liberals were shocked as they scored victory after victory before the very conservative Court that exited prior to the death of Justice Antonin Scalia. Most of these victories happened because conservative overreach breeds liberal unity. The cases decided last June included an attack on federal housing discrimination law, an attempt to neuter many efforts to fight gerrymandering, and a lawsuit alleging that much of the Affordable Care Act’s text doesn’t count. These were, to say the least, very ambitious efforts to shift the law rightward, and they never stood any chance of picking up a liberal (or even a moderately conservative) justice’s vote.
And so the Court’s liberal minority was able to rack up victories by holding itself together while picking off one or two conservative justices in case after case.
Should Garland be confirmed, conservative advocates will quickly figure out that lawsuits seeking to gut major liberal legislation are a waste of time and money. Liberal advocates, by contrast, will be eager to challenge hated precedents and build new progressive doctrines. The Court, in other words, will hear quite a few cases that unite the Court’s conservative members and give them a chance to pick off a liberal justice. And Garland will be a frequent target of these efforts.
So where would a Justice Garland draw the line? Some of the answers to this question are unclear. Unlike the Supreme Court, which selects the several dozen cases it wants to hear each year from a pool of 7,000 to 8,000 petitions, most of the cases heard by appeals court judges like Garland are assigned randomly to panels of judges with very little control over which issues come before them. Many issues that receive outsized attention in the press, moreover, rarely arise in federal litigation. Most federal circuit judges will go their entire careers without hearing an abortion case, for example. So far, that’s included Judge Garland.
The swiftest victory for liberals if Judge Garland is confirmed is that he immediately halts the bleeding from lawsuits, such as the seemingly endless attacks on Obamacare, which seek to revive long dead conservative doctrines or selectively rewrite foundational rules of statutory interpretation. Even if Garland adopts Justice Anthony Kennedy’s current mantle as the Court’s “swing” justice, Garland is unlikely to swing so far that liberals will lie awake in terror, fearing that an historic legislative achievement will be gutted.
The one area where Garland is most likely to disappoint liberals is criminal justice. In a very comprehensive analysis of Garland’s first 13 years as a judge, SCOTUSBlog’s Tom Goldstein found only eight published decisions where Garland sided with a criminal defendant challenging their conviction, in addition to seven where “he voted to reverse the defendant’s sentence in whole or in part, or to permit the defendant to raise a argument relating to sentencing on remand.” Garland, it should be noted, sits on a fairly specialized court that hears an unusually heavy load of regulatory cases and a relatively light load of criminal appeals. So a partial explanation for why he’s sided with so few criminal defendants is probably that he hears fewer criminal cases than other judges. Nevertheless, Garland is a former prosecutor who, if confirmed to the Supreme Court, is likely to be more conservative on criminal justice issues than an average Democratic appointee.
On campaign finance and voting rights cases, Garland appears to have liberal instincts, according to election law expert Rick Hasen. A Voting Rights Act opinion Garland joined, for example, suggests that he is “one who takes seriously [the need] to protect voting rights.” That said, Hasen also notes that a “big question” will be whether Garland is willing to overrule or significantly alter precedents. “I have little doubt he would have been in the dissent in the original Citizens United case,” Hasen writes of Garland, but he’s far less sure that the judge would “be willing to overturn such a case, just a few years after the controversial ruling.”
If Garland proves unwilling to overrule precedents like Citizens United or the Shelby County decision gutting much of the Voting Rights Act, that’s not death to liberal ambitions. Citizens United retained, at least in theory, a decades old doctrine permitting campaign finance regulation in order to “limit the actuality and appearance of corruption resulting from large individual financial contributions” — the decision’s primary attack on campaign finance laws is its definition of the word “corruption,” which is so narrow as to be virtually meaningless. If confirmed, Garland could help expand this definition without explicitly overruling Citizens United.
Similarly, the Voting Rights Act contains a “bail-in” provision which, over time, could make the law even more effective than it was prior to Shelby County. Garland could join decisions reading that provision broadly without actually voting to overrule Shelby County.
Because of the steady diet of regulatory cases Garland hears as an appeals court judge, his views on the appropriate balance of power between executive branch agencies and the judiciary are very well defined. As Goldstein notes, Garland heard “a dozen close cases in which the court divided” on whether his court should defer to an agency’s decision, and “he sided with the agency every time.”
Agency deference isn’t one of the sexiest issues that comes before the Supreme Court, but it is one of the most important. Especially as Congress falls into deeper and deeper dysfunction, presidents must turn to their existing authority under federal statutes (and the authority held by agencies within the executive branch) in order to be able to govern. Smart and influential conservative groups are very aware of this fact, and they have very well developed plans to effectively shut down much of President Obama’s power by shrinking executive agencies’ authority and limiting judicial deference to agency actions.
Garland’s confirmation would end many of these plans. It would almost certainly cut off the challenge to the Environmental Protection Agency’s Clean Power Plan, the administration’s most ambitious effort to fight climate change. And it would most likely add another vote to the Supreme Court who would uphold the administration’s authority to temporarily allow millions of undocumented immigrants to live and work in this country.
Of course, agency deference is a double-edged sword, and a Justice Garland who is likely to defer to agencies run by Democratic appointees is also likely to defer when Republicans are calling the shots. Nevertheless, such an approach shifts power away from the one unelected branch of government and back to the American people, who ultimately decide who controls the executive branch.
Indeed, it’s likely that this willingness to get out of the way played a major role in Obama’s selection of Judge Garland. Despite widespread speculation that Obama chose Garland as a political move to embarrass Republicans that refuse to confirm any nominee, there’s also a very simple explanation for why the president picked the justice-in-waiting. Garland is the kind of judge that Obama most admires — especially after Obama spent most of his presidency being harassed by lawsuits seeking to dismantle his accomplishments.
As the president wrote a few weeks before choosing Garland, “the person I appoint will be someone who recognizes the limits of the judiciary’s role.” Above all, Judge Garland fits this bill.