Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
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Judge Merrick Garland: His Jurisprudence
and Potential Impact on the Supreme Court
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R44479
Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Summary
On March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of
Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme
Court created by the unexpected death of Justice Antonin Scalia in February. Judge Garland was
appointed to the D.C. Circuit by President Clinton in 1997, and is currently its chief judge, an
administrative position that rotates among the active judges on the circuit. Prior to his
appointment to the bench, Judge Garland served in the Criminal Division of the U.S. Department
of Justice, where he notably oversaw the prosecution of the 1995 Oklahoma City bombing case,
as well as other cases. It remains to be seen whether or how the Senate might proceed in
considering Judge Garland’s nomination; however, the nomination generally remains effective
until it is withdrawn or this term of Congress ends, whichever occurs first.
This report provides an overview of Judge Garland’s jurisprudence and discusses what the impact
on the Court might be if he, or a judge of a similar judicial approach, were to be confirmed to
succeed Justice Scalia. In particular, the report focuses upon those areas of law where Justice
Scalia can be seen to have influenced the High Court’s approach to certain issues, or served as a
fifth and deciding vote on the Court, with a view toward how Judge Garland might approach
those same issues if he were to be confirmed. The report begins with his views on two
overarching issues—the role of the judiciary and statutory interpretation. It then addresses 14
separate areas of law, which are arranged in alphabetical order from “administrative law” to
“takings.” The report includes one table which notes the cases where the Supreme Court has
reviewed majority opinions written or joined by Judge Garland. Another table, in the appendix to
the report, identifies Judge Garland’s colleagues on the D.C. Circuit and lists notable cases
involving Judge Garland and that colleague. A separate report, CRS Report R44484, Majority,
Concurring, and Dissenting Opinions Authored by Judge Merrick Garland, coordinated by (na
me redacted) , lists all opinions authored by Judge Garland during his tenure on the D.C. Circuit.
Other CRS products discuss various issues related to the vacancy on the Supreme Court. For an
overview of available products, see CRS Legal Sidebar WSLG1526, Vacancy on the Supreme
Court: CRS Products, by (name redacted) and (name redacted).
Congressional Research Service
Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Contents
Predicting Nominees’ Future Decisions on the Court ..................................................................... 2
Role of the Judiciary........................................................................................................................ 6
Statutory Interpretation.................................................................................................................. 16
Administrative Law ....................................................................................................................... 23
Capital Punishment........................................................................................................................ 30
Civil Liability ................................................................................................................................ 31
Civil Rights.................................................................................................................................... 36
Criminal Law and Procedure ......................................................................................................... 37
Environmental Law ....................................................................................................................... 43
Federalism ..................................................................................................................................... 49
Freedom of Religion ...................................................................................................................... 55
Freedom of Speech ........................................................................................................................ 56
International and Foreign Law ...................................................................................................... 62
Right to Bear Arms ........................................................................................................................ 65
Separation of Powers ..................................................................................................................... 66
Substantive Due Process................................................................................................................ 71
Takings .......................................................................................................................................... 73
Tables
Table 1. Judge Garland and the Supreme Court ............................................................................. 11
Table A-1. Judges Who Have Served with Judge Garland on the D.C. Circuit............................. 74
Appendixes
Appendix. Judge Garland and the D.C. Circuit ............................................................................. 74
Contacts
Author Contact Information .......................................................................................................... 77
Congressional Research Service
Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
n March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court
of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the
Supreme Court created by the unexpected death of Justice Antonin Scalia in February.1
Judge Garland was appointed to the D.C. Circuit by President Clinton in 1997,2 and is currently
its chief judge,3 an administrative position that rotates among the active judges on the circuit.4
Prior to his appointment to the bench, Judge Garland served in the Criminal Division of the U.S.
Department of Justice (DOJ), where he notably oversaw the prosecution of the 1995 Oklahoma
City bombing case,5 as well as other cases.6 It remains to be seen whether or how the Senate
might proceed in considering Judge Garland’s nomination;7 however, his nomination generally
remains effective until it is withdrawn or this term of Congress ends, whichever occurs first.8
O
This report provides an overview of Judge Garland’s jurisprudence and discusses what the impact
on the Supreme Court might be if he, or a judge of a similar judicial philosophy, were to be
confirmed to succeed Justice Scalia. In attempting to ascertain how the Court’s jurisprudence
could be affected if Judge Garland were to fill the vacancy created by Justice Scalia’s death,
however, it is important to note at the outset that it is difficult to predict accurately an individual’s
service on the Court based on his prior experience for various reasons. Accordingly, a section of
this report entitled “Predicting Nominees’ Future Decisions on the Court” provides a broad
context and framework for evaluating how determinative a lower court judge’s prior record may
be in predicting future votes on the Supreme Court.
The report focuses on those areas of law where Justice Scalia can be seen to have influenced the
High Court’s approach to particular issues, or served as a fifth and deciding vote on the Court,9
1
See, e.g., Transcript: Obama Announces Nomination of Merrick Garland to Supreme Court, WASH. POST (March 16,
2016), https://www.washingtonpost.com/news/post-politics/wp/2016/03/16/transcript-obama-announces-nominationof-merrick-garland-to-supreme-court/. See also CRS Legal Sidebar WSLG1518, Merrick Garland’s Nomination to the
Supreme Court: Initial Observations, by (name redacted)
.
2
See Garland, Merrick B., FED. JUDICIAL CTR., http://www.fjc.gov/servlet/nGetInfo?jid=820 (last visited April 15,
2016) [hereinafter “FJC Garland”]. Judge Garland was initially nominated to the D.C. Circuit in 1995, but the Senate
did not vote on that nomination. Id.
3
Id.
4
See U.S. COURT OF APPEALS FOR THE D.C. CIRCUIT, HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES, UNITED
STATES COURT FOR THE DISTRICT OF COLUMBIA CIRCUIT, AS AMENDED THROUGH MARCH 1, 2016, 2,
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20%20Handbook%202006%20Rev%202007/$FILE/HandbookMarch2016Final.pdf (last visited April 20, 2016).
5
See, e.g., Confirmation Hearings on Federal Appointments: Hearings before the Committee on the Judiciary, United
States Senate, Part 2, 104th Congress, 1st sess., 1058 (1995).
6
FJC Garland, supra note 2.
7
See, e.g., David M. Herszenhorn, Senator Grassley and Judge Garland Meet, and Rehash the Obvious, N.Y. TIMES
(April 12, 2016), http://www.nytimes.com/2016/04/13/us/politics/senator-chuck-grassley-merrick-garland-meet.html?
_r=0; Todd Ruger, Grassley: I Haven’t Changed My Mind on Garland Hearings, ROLL CALL (April 7, 2016),
http://www.rollcall.com/news/home/grassley-havent-changed-mind-garland-hearings.
8
See generally S. COMM. ON RULES AND ADMIN., STANDING RULES OF THE SENATE, S. DOC. NO. 113-18 (2013) (Rule
XXXI), https://www.gpo.gov/fdsys/pkg/CDOC-113sdoc18/html/CDOC-113sdoc18.htm; CRS Report RL31980, Senate
Consideration of Presidential Nominations: Committee and Floor Procedure, by (name redacted) ; but see S. COMM.
ON RULES AND ADMIN., STANDING RULES OF THE SENATE, S. DOC. NO. 113-18 (2013) (“When the Senate shall adjourn
or take a recess for more than thirty days, all motions to reconsider a vote upon a nomination which has been confirmed
or rejected by the Senate, which shall be pending at the time of taking such adjournment or recess, shall fall; and the
Secretary shall return all such nominations to the President as confirmed or rejected by the Senate, as the case may
be.”).
9
These areas are noted in CRS Report R44419, Justice Antonin Scalia: His Jurisprudence and His Impact on the
Court, coordinated by (name redacted), (name redacted), and (name redacted) [hereinafter referred to as the “CRS
(continued...)
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
with a view toward how Judge Garland might approach that same issue if he were to be
confirmed. The report begins with his views on two cross-cutting issues—the role of the judiciary
and statutory interpretation. It then addresses 14 separate areas of law, which are arranged in
alphabetical order from “administrative law” to “takings.” Within each of these sections, the
report reviews whether and how Judge Garland has addressed particular issues in opinions he
authored or joined, or in other votes in which he participated (e.g., votes regarding whether the
D.C. Circuit should grant en banc review to decisions of three-judge circuit panels). The report
analyzes majority, concurring, and dissenting opinions, as well as opinions of three-judge district
court panels in which Judge Garland participated.10 Where relevant, the report also notes Judge
Garland’s writings prior to joining the D.C. Circuit, which often centered upon issues of
administrative or antitrust law.11
The report discusses numerous cases and votes involving Judge Garland. However, it focuses
particularly on cases in which Judge Garland participated that divided the D.C. Circuit, as these
cases arguably best showcase how he might approach a legal controversy whose resolution is a
matter of dispute and is not predetermined by prior case law.12 In addition, the report highlights
areas where Judge Garland demonstrated views on the law that contrasted with the views of some
of his colleagues. Moreover, to the extent that Judge Garland’s votes in particular cases may
reflect broader trends and tendencies in his decisionmaking that could be manifested if he were to
be confirmed to the Court, the report highlights such trends. Nonetheless, this report does not
attempt to catalog every matter in which Judge Garland participated during his 19 years of service
on the D.C. Circuit. A separate report, CRS Report R44484, Majority, Concurring, and
Dissenting Opinions Authored by Judge Merrick Garland, coordinated by (name redacted) , lists
all opinions authored by Judge Garland during his tenure on the D.C. Circuit.
Other CRS products discuss various issues related to the vacancy on the Court. For an overview
of available products, see CRS Legal Sidebar WSLG1526, Vacancy on the Supreme Court: CRS
Products, by (name redacted) an d (name redacted)
.
Predicting Nominees’ Future Decisions on the Court
It is important to note at the outset of this report that, at least as a historical matter, attempting to
predict how particular Supreme Court nominees may approach their work on the High Court
based on their previous experience is a task fraught with uncertainty.13 For example, Justice Felix
(...continued)
Scalia report”].
10
See 28 U.S.C. §2284(a) (“A district court of three judges shall be convened when otherwise required by Act of
Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or
the apportionment of any statewide legislative body.”).
11
See, e.g., Confirmation Hearings on Federal Appointments, supra note 5, at 1109 (listing Judge Garland’s
publications prior to joining the D.C. Circuit).
12
See Jonathan H. Adler, What Happened When Merrick Garland Wrote for Himself, VOLOKH CONSPIRACY (March 21,
2016), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2016/03/21/what-happened-when-merrickgarland-wrote-for-himself/ (“The best way to get a handle on a circuit judge’s judicial philosophy is to look at the
judge’s concurrences and dissents.”).
13
Christine Kexel Chabot & Benjamin Remy Chabot, Mavericks, Moderates, or Drifters? Supreme Court Voting
Alignments, 1838-2009, 76 MO. L. REV. 999, 1040 (2011) (“[U]ncertainty is empirically well-founded. It is borne out
by Justices’ overall voting records since at least 1838. The president’s odds of appointing a Justice who sides with
appointees of his party have been no better than a coin flip.”); id. at 1021 (listing Justices Brennan, Clark, Frankfurter,
Holmes, McLean, McReynolds, Reed, Souter, Stevens, Warren, and Wayne as examples of jurists who “disappointed”
(continued...)
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Frankfurter, who had a reputation as a “progressive” legal scholar prior to his appointment to the
Court in 1939,14 disappointed15 some as he became a voice for judicial restraint and caution when
the Court reviewed laws that restricted civil liberties and civil rights during World War II16 and
the early Cold War era.17 Similarly, Justice Harry Blackmun, who had served on the U.S. Court of
Appeals for the Eighth Circuit for a little over a decade prior to his appointment to the Court in
1970,18 was originally considered by President Richard Nixon to be a “strict constructionist,” in
the sense that he viewed the judge’s role as interpreting the law, rather than making new law.19 In
the years that followed, however, Justice Blackmun authored the majority opinion
constitutionalizing the right to terminate a pregnancy in Roe v. Wade,20 and was generally
considered one of the more liberal voices on the Court by the time of his retirement in 1994.21
The difficulty in attempting to predict future Supreme Court votes remains even when the
nominee has had as lengthy a federal judicial career prior to nomination as Judge Garland.22
(...continued)
the expectations of the President who appointed them to the Court); see also The Judicial Nomination and
Confirmation Process: Hearings Before the Subcommittee on Administrative Oversight & the Courts, Senate
Committee on the Judiciary, 107th Cong., 1st sess., 195 (2001) (statement of Douglas W. Kmiec, Dean & St. Thomas
More Professor of Law, The Catholic University of America) (“Nominee selection—as a matter of fact—is seldom
sufficient to predict accurately the philosophical direction of a particular judicial candidate, once appointed to a lifetime
job with no salary diminution. Eisenhower had his Earl Warren; Nixon had his Blackmun; Bush had his Souter. In each
case, it is either popularly speculated or actually articulated that the nominee’s service was at some considerable
variance to the philosophy of the nominating president. A recent study for the LBJ Journal of Public Affairs estimates
that one Justice in four disappointed his appointing president.”).
14
See Joseph L. Rauh, Jr., An Unabashed Liberal Looks at a Half-Century of the Supreme Court, 69 N.C. L. REV. 213,
220 (1990) (“When Frankfurter took his seat on the Supreme Court in January 1939, almost everyone assumed that he
would become the dominant spirit and intellectual leader of the new liberal Court. After all, he had been, in the words
of Brandeis, ‘the most useful lawyer in the United States’: defender of Tom Mooney, the alien victims of the Palmer
Red Raids, the striking miners of Bisbee, Arizona, Sacco and Vanzetti, and too many others to mention.”); JAMES F.
SIMON, THE ANTAGONISTS: HUGO BLACK, FELIX FRANKFURTER AND CIVIL LIBERTIES IN MODERN AMERICA 13-16, 46-47
(1989) (noting fears in some political circles that Frankfurter was a Communist or Communist sympathizer,
“inspir[ing] American conservatives to label Frankfurter a dangerous radical”); see generally NOAH FELDMAN,
SCORPIONS: THE BATTLES AND TRIUMPHS OF FDR’S GREAT SUPREME COURT JUSTICES 14, 21-27 (2010).
15
See, e.g., Rauh, supra note 14, at 220 (“But ... a deep belief in judicial restraint in all matters overtook even
[Frankfurter’s] lifelong dedication to civil liberties.”).
16
See, e.g., W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 646 (1943) (Frankfurter, J., dissenting) (arguing for
the constitutionality of a World War II-era law requiring students to salute the flag); Korematsu v. United States, 323
U.S. 214, 225 (1944) (Frankfurter, J., concurring) (contending that the propriety of the Japanese-American civilian
exclusion order was the “business” of Congress and the Executive, not the Court).
17
See, e.g., Dennis v. United States, 341 U.S. 494, 556 (1951) (Frankfurter, J., concurring) (upholding the conviction of
three defendants under the Smith Act for conspiracy to organize the Communist Party as a group advocating the
overthrow of the U.S. government by force).
18
See Blackmun, Harry Andrew, FED. JUDICIAL CTR., http://www.fjc.gov/servlet/nGetInfo?jid=187&cid=0&ctype=sc&
instate=na (last visited April 15, 2016).
19
See BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 97 (1979) (“Nixon found
Blackmun’s moderate conservatism perfect.... [Blackmun] had a ... predictable, solid body of opinions that
demonstrated a levelheaded, strict-constructionist philosophy.... Blackmun was a decent man, consistent, wedded to
routine, unlikely to venture far.”).
20
See generally 410 U.S. 113 (1973) (Blackmun, J.).
21
See LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN 235 (2005) (noting that, by 1994, “Harry Blackmun was, by
wide consensus, the most liberal member of the Supreme Court”).
22
Judge Garland has served for nearly 20 years on the D.C. Circuit. See FJC Garland, supra note 2. By comparison, of
the current members of the Supreme Court, Justice Alito had served the longest on the federal court of appeals—16
years—prior to being elevated to the High Court. See Alito, Samuel A., Jr., FED. JUDICIAL CTR., http://www.fjc.gov/
(continued...)
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Federal appellate judges are bound by Supreme Court and circuit precedent23 and, therefore, are
not normally in a position to espouse freely their views on particular legal issues in the context of
their judicial opinions.24 Moreover, unlike the Supreme Court, which enjoys “almost complete
discretion” in selecting its cases, the federal courts of appeals are required to hear many cases as a
matter of law and, as a result, tend to hear “many routine cases in which the legal rules are
uncontroverted.”25 Perhaps indicative of the nature of federal appellate work, the vast majority of
cases decided by three-judge panels of federal courts of appeals are decided without dissent.26
Unanimity is particularly frequent on the D.C. Circuit where Judge Garland serves.27
Accordingly, while Judge Garland’s work on the D.C. Circuit may provide some insight into his
general approach toward particular legal issues,28 the bulk of the opinions that Judge Garland has
authored or joined may not be particularly insightful with regard to his views on specific areas of
law or how he would approach these issues if he were a Supreme Court Justice.
Even in closely contested cases where concurring or dissenting opinions are lodged,29 it still may
be difficult to determine the preferences of the nominated judge if the nominee did not actually
(...continued)
servlet/nGetInfo?jid=26 (last visited April 15, 2016).
23
See Brewster v. Comm’r of Internal Revenue, 607 F.2d 1369, 1373-74 (D.C. Cir. 1979) (explaining that future panels
are bound to follow precedent set by previous panels until the en banc court or Supreme Court overrules that
precedent); see generally Tuan Samahon, The Judicial Vesting Option: Opting Out of Nomination and Advice and
Consent, 67 OHIO ST. L.J. 783, 816 n.160 (2006) (“Vertical stare decisis binds hierarchically inferior federal appellate
judges to follow the Supreme Court’s on-point precedent. The relationship is vertical, or between inferior and superior.
Horizontal stare decisis merely constrains justices to follow their own precedent—decisions made by their co-equal
predecessors—until a five-vote majority decides to overrule it. Once there are five votes to overrule, it merely becomes
a matter of prudence whether the Court will revise what was once established precedent.”).
24
See HON. RICHARD A. POSNER, THE FEDERAL COURTS: CHALLENGE AND REFORM 367 (2009) (“Supreme Court
decisions bind the courts of appeals in a way in which they do not bind the Court itself, and therefore narrow
considerably the scope for those courts to exercise choice.”); see also DAVID ALISTAIR YALOF, PURSUIT OF JUSTICES:
PRESIDENTIAL POLITICS AND THE SELECTION OF SUPREME COURT NOMINEES 171 (1999) (noting that the nature of a
judge’s work on a federal appellate court allows “most circuit judges [to] chart a course of moderation” and “more
often than not, a circuit judge’s opinions tend to betray outsiders’ perceptions of that judge as a sharp ideological
extremist”).
25
Louis J. Sirico, Jr., The Citing of Law Reviews by the United States Courts of Appeals: An Empirical Analysis, 45 U.
MIAMI L. REV. 1051, 1052 n.8 (1991); see generally POSNER, supra note 24, at 367 (2009) (observing that “more of the
work of [the federal appellate] courts really is technical.... Most of the appeals they get can be decided
uncontroversially by the application of settled principles.”).
26
See FRANK B. CROSS, DECISION MAKING IN THE U.S. COURTS OF APPEALS 160 (2007) (noting the “relative paucity of
circuit court panel dissents”).
27
See, e.g., Hon. Douglas H. Ginsburg, Remarks Upon Receiving the Lifetime Service Award of the Georgetown
Federalist Society Chapter Georgetown University Law Center, April 26, 2011, 10 GEO. J.L. & PUB. POL’Y 1, 7 (2012)
(noting that in 2010, panels of the D.C. Circuit “disposed of 873 cases, 191 of them with published opinions, but our
nine active and four senior judges ... issued a total of only nineteen dissenting opinions”); see also Hon. Douglas H.
Ginsburg & Brian M. Boynton, The Court En Banc: 1991-2002, 70 GEO. WASH. L. REV. 259, 265 (2002) (noting that,
from FY1995 through FY2001, a dissent was filed in only 9% of published decisions of the D.C. Circuit).
28
See YALOF, supra note 24, at 170 (“Although hardly dispositive, federal appellate opinions offer perhaps the best
gauge available for predicting an individual’s future voting behavior on the Supreme Court.”).
29
See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1754-55 (2015) (suggesting
that the “presence of a concurrence or dissent serves as a signal” that the case before the court is a “hard case”); see
generally Hon. Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L.
REV. 1371, 1412-15 (1995) (noting the motivations that prompt judges to write concurring or dissenting opinions);
Hon. Diane P. Wood, When to Hold, When to Fold, When to Reshuffle: The Art of Decisionmaking on a Multi-Member
Court, 100 CAL. L. REV. 1445, 1451-57 (2012) (describing the considerations that prompt judges to publish separate
opinions).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
write an opinion in the case. The act of joining an opinion authored by another judge may not
necessarily reflect full agreement with the underlying opinion.30 For example, some judges, in an
effort to promote consensus on a court, will refuse to dissent unless the underlying issue invokes
particularly strong disagreement.31 As one commentator notes, “[T]he fact that a judge joins in a
majority opinion may not be taken as indicating complete agreement. Rather, silent acquiescence
may be understood to mean something more like ‘I accept the outcome in this case, and I accept
that the reasoning in the majority opinion reflects what a majority of my colleagues has agreed
on.’”32
The caution with which one interprets a judge’s vote isolated from a written opinion may be
particularly important in the context of a judge’s votes with respect to procedural matters. A
judge’s vote to grant an extension of time for a party to submit a filing, for example, generally
does not signal any sort of agreement with the substantive legal position proffered by that party.33
Thus, while votes by Judge Garland in favor of having certain cases—which had been ruled on by
three-judge panels—reconsidered by the D.C. Circuit sitting en banc have garnered considerable
attention from some examining his judicial record,34 those votes should be interpreted with some
degree of caution. On the one hand, a vote to rehear a case en banc could signal disagreement
with the legal reasoning of the panel decision and may suggest that a judge wants the entire court
to have an opportunity to correct a perceived error by the panel.35 On the other hand, as one
federal appellate judge noted in dissenting from a decision to deny a petition for rehearing en
banc,
Most of us vote against most such petitions and suggestions even when we think the
panel decision is mistaken. We do so because federal courts of appeals decide cases in
30
See Hon. Ruth Bader Ginsburg, as quoted in Irin Carmon, Opinion, Justice Ginsburg’s Cautious Radicalism, N.Y.
TIMES (October 24, 2015), http://www.nytimes.com/2015/10/25/opinion/sunday/justice-ginsburgs-cautiousradicalism.html (noting that “an opinion of the court very often reflects views that are not 100 percent what the opinion
author would do, were she writing for herself ”).
31
See Sanford Levinson, Trash Talk at the Supreme Court: Reflections on David Pozen’s Constitutional Good Faith,
129 HARV. L. REV. F. 166, 174 (2016) (declaring the assumption that “all adjudicators are splendidly isolated” to be
“foolish,” and arguing that it may be “incumbent” upon judges to engage in “intellectual compromise[s]” “to serve the
public weal”); see, e.g., Gerald W. Heaney, Judge Martin Donald Van Oosterhout: The Big Judge from Orange City,
Iowa, 79 IOWA L. REV. 1, 16 (1993) (discussing former Eighth Circuit Judge Van Oosterhout’s judicial philosophy).
32
See Steven D. Smith, Lessons from Lincoln: A Comment on Levinson, 38 PEPP. L. REV. 915, 924 (2011).
33
Cf. Mathes v. Comm’r of Internal Revenue, 788 F.2d 33, 35 (D.C. Cir. 1986) (noting that the “substantive merits of a
claim” are irrelevant when a claim is prosecuted in an untimely manner).
34
See, e.g., Priests for Life v. Dep’t of Health & Human Servs. (HHS), 808 F.3d 1 (D.C. Cir. 2015) (declining to join
an opinion arguing for granting a petition for en banc hearing in a matter arising under the Religious Freedom
Restoration Act); Parker v. District of Columbia, No. 04-7041, 2007 U.S. App. LEXIS 11029 (D.C. Cir. May 8, 2007)
(dissenting from a vote denying a petition for rehearing en banc in a Second Amendment case). For further discussion
of these votes, see infra “Freedom of Religion” and “Right to Bear Arms,” respectively. Some votes on the D.C. Circuit
with respect to en banc petitions may ultimately remain unknown to the public. See U.S. COURT OF APPEALS FOR THE
D.C. CIRCUIT, HANDBOOK OF PRACTICE AND INTERNAL PROCEDURES 58 (2016), available at
https://www.cadc.uscourts.gov/internet/home.nsf/Content/VL%20-%20RPP%20%20Handbook%202006%20Rev%202007/$FILE/HandbookMarch2016Final.pdf (“An order granting rehearing en
banc does not indicate the names of the judges who voted against rehearing, but an order denying rehearing en banc
does indicate the names of the judges who voted to grant rehearing en banc, if they wish.”) (emphasis added).
35
See Hon. Patricia M. Wald, The Problem with the Courts: Black-Robed Bureaucracy, or Collegiality Under
Challenge?, 42 MD. L. REV. 766, 784 (1983) (noting that “[s]ome judges vote routinely for rehearings en banc on all
cases with which they disagree....”); see also Hon. Antonin Scalia, Submitted Testimony to the Commission on
Structural Alternatives for the Federal Courts of Appeals 1 (August 21, 1998), http://www.library.unt.edu/gpo/csafca/
hearings/submitted/pdf/Scalia1.pdf (“[T]he function of en banc hearings ... is not only to eliminate intra-circuit
conflicts, but also to correct and deter panel opinions that are pretty clearly wrong.”).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
three judge panels. En banc review is extraordinary, and is generally reserved for
conflicting precedent within the circuit which makes application of the law by district
courts unduly difficult, and egregious errors in important cases. 36
As a consequence, a vote for or against rehearing a case, or on other procedural matters does not
necessarily equate to an endorsement or repudiation of a particular legal position.37
Finally, it should be noted that, despite having served on the federal appellate bench for nearly
two decades, Judge Garland has said very little about some areas of law because of the nature of
the D.C. Circuit’s docket, and as a consequence, it may be difficult to predict how he might rule
on certain issues if he were elevated to the Supreme Court. Because of its location in the nation’s
capital and because of various jurisdictional statutes,38 the D.C. Circuit hears a significant number
of cases on administrative39 and environmental law matters.40 In contrast, cases at the D.C. Circuit
rarely, if ever, involve “hot-button” social issues such as abortion, affirmative action, or the death
penalty.41 As a result, this report focuses primarily on areas of law where Judge Garland has
written extensively, and notes only in passing those areas where little can arguably be gleaned
from his judicial record on account of Judge Garland having participated in few, if any, decisions
directly addressing those particular areas of law.
Role of the Judiciary
In contrast to Justice Scalia, who was a well-known proponent of originalism and textualism both
within and outside the Court,42 regularly arguing his views on the lecture circuit43 and dissenting
36
See United States v. Weitzenhoff, 35 F.3d 1275, 1293 (9th Cir. 1993) (Kleinfeld, J., dissenting from denial of reh’ing
en banc); see also Bartlett v. Bowen, 824 F.2d 1240, 1244 (D.C. Cir. 1987) (Edwards, J., concurring in the denial of
reh’ing en banc) (“By declining to rehear a case, ‘we do not sit in judgment on the panel; we do not sanction the result
it reached’.... We decide merely that ... review by the full court is not justified.”). This more limited view of the nature
of a vote for or against a rehearing aligns with the plain text of the Federal Rules of Appellate Procedure, which state
that an en banc hearing is “not favored and ordinarily will not be ordered” unless en banc consideration is necessary to
“secure or maintain” the uniformity of a court’s decisions, or the proceeding involves a question of “exceptional
importance.” See FED. R. APP. P. 35(a).
37
See Mitts v. Bagley, 626 F.3d 366, 370 (6th Cir. 2010) (Sutton, J., concurring in the reh’ing en banc) (“No one thinks
a vote against rehearing en banc is an endorsement of a panel decision....”).
38
See CRS Legal Sidebar WSLG533, Why is the D.C. Circuit “So” Important?, by (name redacted)
.
39
See Hon. Brett M. Kavanaugh, The Courts and the Administrative State, 64 CASE W. RES. L. REV. 711, 715 (2014)
(“[T]he bread and butter of our docket, is our administrative law docket. What I mean by that is determining in a
particular case whether an administrative agency, like the EPA, the NLRB, or the FCC, exceeded statutory limits on
their authority or violated a statutory prohibition on what they can do. These are the cases that come up to our court
constantly. We see very complicated administrative records, and we adjudicate very complex statutes.”); see also Hon.
Harry T. Edwards, A Conversation with Judge Harry T. Edwards, 16 WASH. U. J.L. & POL’Y 61, 64 (2004) (“The D.C.
Circuit docket largely consists of very dense administrative law cases in appeals that often include huge records and
numerous parties with their numerous briefs.”); Eric M. Fraser et al., The Jurisdiction of the D.C. Circuit, 23 CORNELL
J.L. & PUB. POL’Y 131, 152 (2013) (“The modern D.C. Circuit hears a disproportionate share of administrative petitions
and other cases involving the federal government....”).
40
See Jason J. Czarnezki, An Empirical Investigation of Judicial Decisionmaking, Statutory Interpretation, and the
Chevron Doctrine in Environmental Law, 79 U. COLO. L. REV. 767, 790 (2008) (noting that, in a data set of 347 judicial
votes cast in the federal courts of appeals from 2003 to 2005 on environmental law matters, “cases involving
environmental statute interpretation tend to occur in the D.C. Circuit”); Hon. Patricia M. Wald, Regulation at Risk: Are
Courts Part of the Solution or Most of the Problem?, 67 S. CAL. L. REV. 621, 623, 633 (1994) (stating that the D.C.
Circuit has decided a number of significant environmental law cases).
41
See David G. Savage, Supreme Court Nominee Merrick Garland Has a Record of Restraint, Not Activism, L.A.
TIMES, (March 18, 2016), http://www.latimes.com/nation/la-na-garland-legal-analysis-20160318-story.html.
42
See generally CRS Scalia report, supra note 9, at 2-4.
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
from opinions that, in his view, failed to construe legal texts in accordance with their ordinary
meaning at the time of drafting,44 Judge Garland’s approach to the craft of judging is less
immediately apparent. In a questionnaire submitted to the Senate Judiciary Committee in
conjunction with his nomination to the D.C. Circuit in 1995,45 Judge Garland wrote of the limited
role that judges have under the Constitution, noting that “federal judges do not have roving
commissions to solve societal problems,” and the “role of the court is to apply the law ... not to
legislate, not to arrogate to itself the executive power, not to hand down advisory opinions on the
issues of the day.”46 Judge Garland echoed these sentiments in the statement he issued upon his
nomination to the Supreme Court.47 During the hearing on his 1995 nomination, Judge Garland
also told Senators that among the Supreme Court Justices he most deeply admired were Chief
Justice John Marshall, the author of Marbury v. Madison;48 Justice Oliver Wendell Holmes, Jr.,
the great dissenter of the early 20th century; and Justice William Brennan, the judge for whom
Judge Garland clerked.49
Beyond these general statements, though, Judge Garland has not articulated any overarching legal
philosophy in a manner akin to Justice Scalia. In his public appearances outside the court, Judge
Garland has tended to participate in conferences on discrete issues, such as prosecutorial
misconduct,50 indigent criminal defense,51 or changing the rules of civil procedure,52 rather than
(...continued)
43
See, e.g., Hon. Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L. REV. 849 (1989) (an address delivered on
September 16, 1988, at the University of Cincinnati as the William Howard Taft Constitutional Law Lecture); Hon.
Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting
the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3-47 (Amy Gutmann ed.,
1997) (containing Justice Scalia’s Tanner Lectures on Human Values delivered at Princeton University on March 8 and
9, 1995).
44
See, e.g., Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2629 (2015) (Scalia, J., dissenting); King v. Burwell, --U.S. ---, 135 S. Ct. 2480, 2496 (2015) (Scalia, J., dissenting).
45
Judge Garland was initially nominated by President Clinton to serve on the D.C. Circuit in 1995. See FJC Garland,
supra note 2. No vote was ever taken on his nomination then, and he was subsequently renominated in 1997 and
confirmed to his current office soon after. Id.
46
See Confirmation Hearings on Federal Appointments, supra note 5, at 1128 (submission of Senate Judiciary
Committee Questionnaire for Judicial Nominees for Merrick Brian Garland).
47
See Hon. Merrick B. Garland, Remarks by the President Announcing Judge Merrick Garland as His Nominee to the
Supreme Court (March 16, 2016), https://www.whitehouse.gov/the-press-office/2016/03/16/remarks-presidentannouncing-judge-merrick-garland-his-nominee-supreme (“People must be confident that a judge’s decisions are
determined by the law, and only the law. For a judge to be worthy of such trust, he or she must be faithful to the
Constitution and to the statutes passed by the Congress. He or she must put aside his personal views or preferences, and
follow the law—not make it.”).
48
1 Cranch (5 U.S.) 137 (1803).
49
See Confirmation Hearings on Federal Appointments, supra note 5, at 1064 (submission of Senate Judiciary
Committee Questionnaire for Judicial Nominees for Merrick Brian Garland). As one commentator has noted, to the
extent that Judge Garland’s opinions on the court can be seen to reflect the judges whom he admires, he cites most
often to Judge Harry Edwards, followed by Justice William Rehnquist and Judge David Sentelle. See What Data
Science Tells Us About Merrick Garland, RAVEL LAW’S BLOG (March 17, 2016), http://blog.ravellaw.com/what-datascience-tells-us-about-merrick-garland.
50
See Independence of Federal Prosecutors: A Panel Discussion at the Federalist Society 2007 National Lawyers
Convention, 7 AVE MARIA L. REV. 207 (2008) (moderator).
51
See (In)effective Assistance of Counsel for Criminal Defendants: Constitutional Standards and Practical Solutions: A
Panel Discussion at the 2008 American Constitution Society Convention (June 13, 2008), http://acslaw.org/pdf/
ACS%20National%20Convention%20Schedule.pdf.
52
See Changing the Federal Rules of Civil Procedure: Has the Time Come?: Litigation Practice Group for the
Federalist Society (December 9, 2010), http://www.fed-soc.org/multimedia/detail/changing-the-federal-rules-of-civil(continued...)
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broadly discussing or defending particular interpretative methodologies. In his judicial opinions,
Judge Garland has, at times, utilized originalism as a method of constitutional interpretation,
including in a jointly issued 2000 opinion53 that relied on the Constitution’s text and structure,54
as well as materials from the 1787 Constitutional Convention55 and subsequent ratifying
conventions,56 in rejecting a lawsuit brought by a group of DC voters seeking the right to elect
representatives to Congress.57 On the other hand, in neither that opinion58 nor in other opinions
has Judge Garland purported to rely on originalism or textualism as the sole or primary method of
interpreting the law.59
Nonetheless, even without more comprehensive explanations from Judge Garland outlining his
specific judicial philosophy, the nominee’s writings provide some insights into his approach to
judging. First and foremost, Judge Garland has been widely viewed as a meticulous and cautious
jurist, writing with precision and an eye toward ensuring that the court does not overreach in any
particular case.60 Trudeau v. Federal Trade Commission (FTC), the opinion of Judge Garland that
has been most widely cited by other judges,61 may be seen as illustrative of this approach.62
There, Judge Garland, on behalf of a unanimous three-judge panel, affirmed the dismissal of a
complaint lodged by Kevin Trudeau, an author and producer of television and radio infomercials,
which had alleged that an FTC press release about him was “false and misleading,” exceeded the
agency’s statutory authority, and violated his First Amendment rights.63 The case raised several
difficult issues of federal jurisdiction and administrative law that had split the circuit courts of
appeals in previous cases.64 However, in his opinion, Judge Garland succinctly clarified two
(...continued)
procedure-has-the-time-come-event-audiovideo (moderator).
53
See Adams v. Clinton, 90 F. Supp. 2d 35 (D.D.C. 2000) (three-judge panel). Adams was a 2-1 decision with Judge
Garland and Judge Colleen Kollar-Kotelly of the D.C. district court joining the per curiam opinion and Judge Louis
Oberdorfer of the D.C. district court dissenting.
54
See, e.g., id. at 50 (“We conclude from our analysis of the text that the Constitution does not contemplate that the
District may serve as a state for purposes of the apportionment of congressional representatives.”).
55
See, e.g., id. at 50 n.25 (quoting from James Madison’s notes from the federal convention in 1787).
56
See, e.g., id. at 51 (“At the New York ratifying convention, for example, Thomas Tredwell argued that ‘[t]he plan of
the federal city ... departs from every principle of freedom ... subjecting the inhabitants of that district to the exclusive
legislation of Congress, in whose appointment they have no share or vote.’”).
57
Id. at 37 (“[W]e are constrained to agree with defendants that the remedies plaintiffs request are beyond this court’s
authority to grant.”).
58
See id. at 55-56 (“In sum, we conclude that constitutional text, history, and judicial precedent bar us from accepting
plaintiffs’ contention.”)
59
As a lower court judge, Judge Garland has, of course, relied on precedent from the Supreme Court and the D.C.
Circuit as a necessary guide for his opinions. See, e.g., United States v. Weathers, 186 F.3d 948, 957 n.12 (D.C. Cir.
1999) (Garland, J.) (noting that lower courts should “follow the case which directly controls, leaving to [the Supreme]
Court the prerogative of overruling its own decisions.”) (internal citations and quotations omitted).
60
See, e.g., Savage, supra note 41 (describing Judge Garland’s record as being “cautious” and “centrist”); Karen Dunn,
as quoted in Josh Gerstein, Garland’s Lack of Standout Opinions a Boon in Confirmation Fight, POLITICO (March 16,
2016), http://www.politico.com/story/2016/03/merrick-garland-supreme-court-opinions-220902#ixzz45CGt5Vcb
(“When he crafts opinions, he’s just extremely meticulous.”).
61
See RAVEL’S LAW BLOG, supra note 49 (noting that Trudeau had been cited in nearly 500 other cases as of March
2016).
62
456 F.3d 178 (D.C. Cir. 2006).
63
Id. at 180.
64
On the question of whether the Administrative Procedure Act’s (APA’s) requirement of “final agency action” is
jurisdictional, compare Nulankeyutmonen Nkihtaqmikon v. Impson, 503 F.3d 18, 33 (1st Cir. 2007) (holding that the
APA’s finality requirement is nonjurisdictional) with Flue-Cured Tobacco Coop. Stabilization Corp. v. Envtl. Prot.
(continued...)
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complex jurisdictional questions;65 avoided resolving a weighty administrative law question as to
whether an agency’s press release could amount to “final agency action” under the Administrative
Procedure Act (APA),66 a question raising serious issues about the propriety of older D.C. Circuit
precedent;67 and rested the decision on the less controversial grounds that the substance of
Trudeau’s complaint was simply legally insufficient.68 As one commentator noted, the Trudeau
case “stands out” among Judge Garland’s cases as exemplifying his ability to examine a
complicated area of law, while at the same time limiting the court’s ruling to the matters
necessary to resolve the case.69
Trudeau exemplifies the relatively circumspect nature of Judge Garland’s judicial work,
something that is arguably reflected more generally throughout the nominee’s judicial career. This
caution is seen especially in the numerous concurring and dissenting opinions where Judge
Garland has taken issue with majority opinions that have, in his view, reached issues that were
unnecessary to the ultimate holding of the court.70 Perhaps the best indication of Judge Garland’s
minimalist approach to judging is provided by looking at how the Supreme Court has evaluated
his work, a topic further detailed in Table 1. Perhaps surprisingly for a jurist who has served on
(...continued)
Agency (EPA), 313 F.3d 852, 857 (4th Cir. 2002) (holding that, because the agency action being challenged did not
constitute final agency action under Section 704 of the APA, the court lacked subject-matter jurisdiction). With regard
to the question of whether the APA’s waiver of sovereign immunity is contingent on the existence of final agency
action, compare Presbyterian Church (U.S.A.) v. United States, 870 F.2d 518, 525-26 (9th Cir. 1989) (holding that the
waiver of sovereign immunity provided in 5 U.S.C. §702 is not limited to “final agency actions” as defined in Section
704) with In re Secs. & Exch. Comm’n (SEC) ex rel. Glotzer, 374 F.3d 184, 190 (2d Cir. 2004) (holding that “the
federal government, in enacting the APA, waived its immunity with respect to those ‘action[s] in a court of the United
States’ which seek review of ‘agency action’”).
65
Trudeau, 456 F.3d at 184 (holding that the APA’s requirement of final agency action is not jurisdictional); id. at 187
(holding that the APA’s waiver of sovereign immunity permits both a cause of action brought under that act as well as
nonstatutory and constitutional claims).
66
Id. at 191 (assuming without deciding that a press release by an agency constitutes final agency action under the
APA).
67
Id. at 189 (noting criticism of the holding of Hearst Radio v. Fed. Commc’n Comm’n (FCC), 167 F.2d 225 (D.C. Cir.
1948), which concluded that agency publications do not constitute “agency action”).
68
Id. at 191.
69
See Allan Smith, Supreme Court Pick Merrick Garland’s Most Cited Decision Involved an Informercial Star, BUS.
INSIDER (March 18, 2016), http://www.businessinsider.com/merrick-garland-infomercial-star-2016-3 (quoting Daniel
Lewis of Revel Law).
70
See, e.g., Bismullah v. Gates, 514 F.3d 1291, 1298-99 (D.C. Cir. 2008) (Garland, J., concurring in the reh’ing en
banc) (reserving judgment on the merits of the dispute and arguing that the D.C. Circuit should not grant en banc
review in Bismullah v. Gates, a Guantanamo Bay detainee case, when the Supreme Court had already granted certiorari
in Boumediene v. Bush, as en banc review would “plainly delay” the resolutions of the two cases by the D.C. Circuit
and the Supreme Court); United States v. Linares, 367 F.3d 941, 953 (D.C. Cir. 2004) (Garland, J., concurring)
(concluding that the appeal of a criminal defendant could have been resolved on harmless error grounds alone, and the
majority of the court did not need to reach a “substantially more difficult question” respecting whether the admission of
certain evidence violated the Federal Rules of Evidence); Citizens for Responsibility & Ethics in Wash. v. Fed.
Election Comm’n (FEC), 475 F.3d 337, 341 (D.C. Cir. 2007) (Garland, J., concurring) (agreeing with the majority
opinion on the sole ground that the instant case could not be distinguished from controlling circuit precedent);
McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182, 1194 (D.C. Cir. 2004) (Garland, J., dissenting)
(arguing that the majority opinion unnecessarily “come[s] perilously close” to imposing a “per se rule that line-item
prices [in a public contract] may never be revealed to the public”); Pub. Citizen Health Research Grp. v. Food & Drug
Admin. (FDA), 185 F.3d 898, 907 (D.C. Cir. 1999) (Garland, J., concurring in judgment) (noting that while the “court
exercises appropriate discretion in declining to decide” whether the Federal Food, Drug and Cosmetic Act’s prohibition
on the disclosure of certain trade secrets is “congruent with” Exemption 4 of the Freedom of Information Act, the court
“errs ... in not exercising similar restraint with respect to an issue regarding the meaning of Exemption 4 itself”).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
an important federal appellate court for nearly two decades,71 none of Judge Garland’s written
opinions have even been reviewed in a formal opinion72 by the Supreme Court. This suggests that
Judge Garland’s opinions tend to be crafted to avoid unnecessary controversy that might prompt
review by the High Court.73 Moreover, only nine opinions that Judge Garland joined have been
the subject of a subsequent opinion by the Supreme Court. Of these nine opinions, five were
ultimately affirmed or otherwise supported in part by the High Court.74 This is a notably high
affirmance rate—given that the Court in recent years has, on average, reversed the lower court in
over 70% of all cases it heard75—and perhaps indicates the cautious nature of Judge Garland’s
jurisprudence.76
71
By comparison, Judge David Tatel, who has served on the D.C. Circuit for roughly as long as Judge Garland (Tatel
was appointed in 1994, and Garland in 1997), has authored at least five opinions that have been reviewed by the
Supreme Court. See Hoffman Plastic Compounds, Inc. v. Nat’l Labor Relations Bd., 237 F.3d 639 (D.C. Cir. 2001) (en
banc), rev’d, 535 U.S. 137 (2002); NextWave Pers. Commc’ns, Inc. v. FCC, 254 F.3d 130 (D.C. Cir. 2001), aff’d, 537
U.S. 293 (2003); Omar v. Harvey, 479 F.3d 1 (D.C. Cir. 2007), vacated sub nom., Munaf v. Geren, 553 U.S. 674
(2008); Nw. Austin Mun. Util. Dist. No. One v. Mukasey, 573 F. Supp. 2d 221 (D.D.C. 2008) (three-judge panel),
rev’d & remanded sub nom., Nw. Austin Mun. Util. Dist. No. One v. Holder, 557 U.S. 193 (2009); Shelby Cty. v.
Holder, 679 F.3d 848 (D.C. Cir. 2012), rev’d, --- U.S. ---, 133 S. Ct. 2612 (2013).
72
See Bert I. Huang & Tejas N. Narechania, Judicial Priorities, 163 U. PA. L. REV. 1719, 1756 n.129 (2015) (“Court
observers routinely use reversal rates only among published opinions to measure the quality of a particular court.”).
73
See William M. Landes, Lawrence Lessig & Michael E. Solimine, Judicial Influence: A Citation Analysis of Federal
Courts of Appeals Judges, 27 J. LEGAL STUD. 271, 325-26 (1998) (hypothesizing that the Supreme Court “rarely takes
cases” from certain “top-ranked” federal appellate judges because these judges “get things ‘right’”); Frank B. Cross &
Stefanie Lindquist, Judging the Judges, 58 DUKE L.J. 1383, 1405 (2009) (“[The] Supreme Court selectively reviews the
most important decisions rendered by circuit courts, making it reasonable to use these important decisions as a metric....
[T]o the degree that evaluation of circuit court judges is employed as a standard for Supreme Court appointments, it
seems appropriate to consider the fate of their decisions at the Supreme Court level.”); cf. Scalia, Submitted Testimony,
supra note 35 (suggesting that the Supreme Court’s discretionary docket reflects, in part, cases where errors have
occurred); but see Cross & Lindquist, supra, at 1405 (noting that the rate of Supreme Court review may not fully gauge
the quality of a federal appellate judge’s work, as “[m]any incorrect circuit court rulings may go unexamined by the
Supreme Court, which is not a court of ‘error correction’”).
74
See Table 1. Four of the decisions were affirmed by the Supreme Court; Kolstad v. Am. Dental Ass’n, 139 F.3d 958
(D.C. Cir. 1998), in which Judge Garland joined the dissent, was ultimately reversed by the Supreme Court, in a
complicated result that could be interpreted in various ways regarding its take on the position of the dissenting judges
in the D.C. Circuit. 527 U.S. 526 (1999). For more on Kolstad, see infra “Civil Rights.”
75
See Stat Pack Archive, SCOTUSblog, http://www.scotusblog.com/reference/stat-pack/ (last visited April 16, 2016)
(indicating reversal rates of 72% for the October 2014 Term; 73% for the October 2013 Term; 72% for the October
2012 Term; 63% for the October 2011 Term; and 72% for the October 2010 Term).
76
See Cross & Lindquist, supra note 73, at 1402-05 (discussing why the “success of judges’ opinions before the
Supreme Court ... is a legitimate factor to be considered” when evaluating circuit court judges); cf. Wendy E. Long,
counsel to the Judicial Confirmation Network, as quoted in Keith Perine, CONG. Q. TODAY ONLINE NEWS (May 26,
2006), http://www.cq.com/doc/news-3125545?0 (arguing that the high rate at which then Judge Sonia Sotomayor had
been reversed by the Supreme Court indicated that she was a “liberal activist”); but see Guy-Uriel Charles et al., Sonia
Sotomayor and the Construction of Merit, 61 EMORY L.J. 801, 811 (2012) (arguing that “the rate at which the Supreme
Court reverses a judge” is a poor metric to gauge judicial activism). Another means by which academics assess federal
circuit judges has been the frequency with which a judge is cited by his peers. See Stephen J. Choi & G. Mitu Gulati,
Choosing the Next Supreme Court Justice: An Empirical Ranking of Judge Performance, 78 S. CAL. L. REV. 23 (2004).
In a 2004 study by Professors Choi and Gulati, Judge Garland ranked among the lowest-scoring judges in an
assessment based, in part, on the number of times a federal judge was cited in other cases. Id. at 77. However, those
assessing the Choi and Gulati study have suggested that the study may indicate how inclined a particular judge is
toward “judicial entrepreneurship,” with judges that “strive to make law” being more frequently cited. See Cross &
Lindquist, supra note 73, at 1412. As a result, the findings regarding Judge Garland in the Choi and Gulati study could
be seen to confirm the hypothesis that Judge Garland has a more cautious approach to judging than many other federal
appellate judges.
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Table 1. Judge Garland and the Supreme Court
Majority Opinions of the Supreme Court Reviewing
Cases in Which Judge Garland Wrote or Joined an Opinion
D.C. Cir. Case
Relevant D.C. Cir. Holding
Garland’s Role
S. Ct. Decision
S. Ct. Vote
Menominee Indian
Tribe of Wis. v.
United States, 764
F.3d 51 (D.C. Cir.
2014)
Indian tribe was not entitled
to equitable tolling of a statute
of limitations period to allow
for the continuation of a cause
of action for breach of a selfdetermination contract.
Joined majority
opinion
Affirmed,
Menominee Indian
Tribe of Wis. v.
United States, --- U.S.
---, 136 S. Ct. 750
(2016)
9-0
Pinson v. Samuels,
761 F.3d 1 (D.C. Cir.
2014)
Monthly installment payments
required under the Prison
Litigation Reform Act of 1995
must be assessed on a “percase” basis, as opposed to a
“per-prisoner” approach.
Joined majority
opinion
Affirmed, Bruce v.
Samuels, --- U.S. ---,
136 S. Ct. 627 (2016)
9-0
White Stallion
Energy Ctr., LLC v.
Envtl. Prot. Agency
(EPA), 748 F.3d 1222
(D.C. Cir. 2014)
The Environmental Protection
Agency’s interpretation of the
phrase “appropriate and
necessary” in Section
112(n)(1)(A) of the Clean Air
Act is a reasonable
construction of the statute.
Joined majority
per curiam
opinion
Reversed, Michigan
v. EPA, --- U.S. ---,
135 S. Ct. 2699
(2015)
5-4
Mohamad v. Rajoub,
634 F.3d 604 (D.C.
Cir. 2011)
Only a natural person is
amenable to suit under the
Torture Victim Protection
Act.
Joined majority
opinion
Affirmed, Mohamad
v. Palestinian Auth.,
--- U.S. ---, 132 S. Ct.
1702 (2012)
9-0
Me. Pub. Utils.
Comm’n v. Fed.
Energy Reg.
Comm’n, 520 F.3d
464 (D.C. Cir. 2008)
The Federal Power Act’s
public interest standard did
not apply to challenges to
contract rates brought by
noncontracting third parties.
Joined majority
per curiam
opinion
Reversed, NRG
Power Mktg., LLC v.
Me. Pub. Utils.
Comm’n, 558 U.S.
165 (2010)
8-1
Al Odah v. United
States, 321 F.3d
1134 (D.C. Cir.
2003)
U.S. courts lack jurisdiction to
consider challenges to the
legality of the detention of
foreign nationals captured
abroad in connection with
hostilities and held at the U.S.
Naval Station at Guantanamo
Bay, Cuba.
Joined majority
opinion
Reversed, Rasul v.
Bush, 542 U.S. 466
(2004)
6-3
Amfac Resorts,
L.L.C. v. Dep’t of the
Interior (DOI), 282
F.3d 818 (D.C. Cir.
2002)
Regulations of the National
Park Service governing
concession contracts in the
National Park System are
valid.
* The D.C. Circuit ruling
reached the merits of the
case; the Supreme Court
asked for supplemental
briefing on the question of
ripeness and reversed on
ripeness grounds.
Joined majority
opinion
Reversed, Nat’l Park
Hosp. Ass’n v. DOI,
538 U.S. 803 (2003)
7-2
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D.C. Cir. Case
Relevant D.C. Cir. Holding
Garland’s Role
S. Ct. Decision
S. Ct. Vote
NextWave Pers.
Commc’ns, Inc. v.
Fed. Commc’ns
Comm’n (FCC), 254
F.3d 130 (D.C. Cir.
2001)
Section 525 of the Bankruptcy
Code prohibits the Federal
Communications Commission
(FCC) from revoking licenses
held by a debtor in bankruptcy
upon the debtor’s failure to
make timely payments owed
to the FCC for the purchase
of licenses.
Joined majority
opinion
Affirmed, FCC v.
NextWave Pers.
Commc’ns, 537 U.S.
293 (2003)
8-1
Kolstad v. Am.
Dental Ass’n, 139
F.3d 958 (D.C. Cir.
1998) (en banc)
Punitive damages can only be
imposed in a Title VII action
upon a showing of egregious
or outrageous conduct.
Joined dissenting
opinion
Vacated and
remanded, Kolstad
v. Am. Dental Ass’n,
527 U.S. 526 (1999)
5-4
Source: Congressional Research Service, based on various sources cited in Table 1.
Note: The purpose of this table is to show the cases in which Judge Garland’s opinions have been substantively
reviewed by the Supreme Court. As a result, the table includes any panel or en banc rulings written or joined by
Judge Garland that were, at least in part, reviewed in a written opinion by the Supreme Court. It does not
include (1) any short order by the Supreme Court, such as a grant or denial of a writ of certiorari or an order
summarily and simultaneously granting certiorari, vacating the ruling, and remanding the case for further
proceedings; (2) any temporary order of the Court, such as a stay of an order of the D.C. Circuit; (3) any
summary affirmance of an opinion authored or joined by Judge Garland; or (4) any of Judge Garland’s votes on
petitions for rehearing en banc. As a result, Judge Garland’s votes in support of opinions dissenting from the
denial of rehearing en banc in Parker v. District of Columbia and American Trucking Associations v. EPA are not
included in this list. See below “Right to Bear Arms” and “Environmental Law,” respectively.
Another notable aspect of Judge Garland’s opinions is that they appear, at times, to be motivated
by pragmatic concerns about how particular rulings may affect the democratic branches of
government. For example, in Wagner v. Federal Election Commission (FEC),77 Judge Garland,
writing on behalf of a unanimous en banc court, upheld against a First Amendment challenge a
law that generally banned individuals who contract to perform services for federal agencies from
contributing to federal campaigns while they are negotiating or performing the contract.78
Notably, approximately one-fourth of Judge Garland’s opinion79 for the court in Wagner was
devoted to the “long historical experience”80 of corruption involving federal contractors, which he
viewed as evidencing that “the concerns that spurred [congressional action] remain as important
today as when the statute was enacted,”81 a considerable portion of a legal opinion to be devoted
to a historical record.
Nor is Wagner the only case in which Judge Garland expressed concerns about how a court’s
ruling could affect the work of the political branches. In the criminal law context, Judge Garland
dissented from the D.C. Circuit’s en banc ruling in Valdes v. United States.82 In Valdes, a majority
of the court, motivated in part by concerns about whether the underlying statute provided the
criminal defendant sufficient notice of the criminality of his conduct,83 held that a police officer
77
793 F.3d 1 (D.C. Cir. 2015) (en banc).
Id. at 3.
79
Id. at 10-18.
80
Id. at 22.
81
Id. at 3.
82
475 F.3d 1319, 1333 (D.C. Cir. 2007) (Garland, J., dissenting).
83
Id. at 1323 (“Sun-Diamond’s interpretive gloss, like the rule of lenity, thus works to protect a citizen from
punishment under a statute that gives at best dubious notice that it has criminalized his conduct.”).
78
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who took money from an undercover federal agent, in exchange for looking up license plate
numbers and outstanding warrants in a police database, could not be prosecuted under the federal
antigratuity statute.84 Judge Garland dissented out of a concern that the majority opinion had
interpreted the statute too narrowly to avoid “absurdities” not at issue in the case and, in so doing,
“denied the government an important weapon in fighting official corruption.”85 In this sense, as
one commentator has noted, Judge Garland may be “more likely” to favor “pragmatic arguments
that certain” interests (like criminal defendants’ right to receive notice that their acts are against
the law) should be interpreted “flexibly, with an eye toward the practical consequences of given
rules.”86 Such an approach toward judging arguably echoes Judge Garland’s writings prior to his
appointment to the D.C. Circuit, when he wrote, in the context of antitrust law, that the judiciary
should generally “not interfere ... with a state’s political decision....”87 Thus, a general skepticism
of judicial interference with the work of the political branches for reasons of pragmatism appears
to underlie Judge Garland’s often relatively functional approach to judging and could contrast
with Justice Scalia’s formalism if Judge Garland were confirmed to the High Court.88
Finally, commentators have suggested that Judge Garland’s approach to judging tends to embrace
compromise, consensus-building, and collegiality in particularly difficult or high profile matters
where plausible arguments could be made by either side.89 In this vein, perhaps the sharpest
contrast between Judge Garland and the Justice he could succeed may lie in their respective
personalities and temperaments, especially with respect to how each approaches the role of
writing a judicial opinion that garners the majority of jurists on a court. While the subject of
Justice Scalia’s personality in the abstract has been a topic of general debate among legal
scholars,90 it is important to note that, relative to the tone of Judge Garland’s opinions, Justice
84
Id. at 1330.
Id. at 1346 (Garland, J., dissenting).
86
See Adler, supra note 12.
87
See Merrick B. Garland, Antitrust and State Action: Economic Efficiency and the Political Process, 96 YALE L.J.
486, 488 (1987).
88
See Adler, supra note 12 (predicting that Judge Garland would be unlikely to follow Justice Scalia’s formalist
approach); see generally HON. RICHARD POSNER, HOW JUDGES THINK 30-31 (2010) (describing Justice Scalia as “our
most prominent legalist judge,” in contrast to those judges that may “trade off principle against effectiveness”).
89
See, e.g., Jess Bravin & Brent Kendall, For Supreme Court Nominee Merrick Garland, Law Prevails Over Ideology,
WALL STREET J. (March 16, 2016), http://www.wsj.com/articles/judge-garland-had-been-considered-for-seat-on-highcourt-before-1458138973 (“Judge Garland has been part of consensus rulings joined by judges appointed by both
Democrats and Republicans.”); Laurence H. Tribe, From Judge to Justice: The Case for Merrick Garland, BOSTON
GLOBE (March 29, 2016), https://www.bostonglobe.com/opinion/2016/03/29/from-judge-justice-case-for-merrickgarland/gHBtdYos4vjZTUmtVDfsVL/story.html (“As chief judge of the D.C. Circuit, a court that has often witnessed
bitter divisions, Garland has presided over a collegial court and gained universal respect among his colleagues,
whatever their philosophical bent. And he has long been able to write opinions that win votes from judges with views
quite different from his own.”).
90
While noted for his humor, outgoing personality, and friendships with persons who could be seen as his ideological
opposites, see Nadine Strossen, Tribute to Justice Antonin Scalia, 62 N.Y.U. ANN. SURV. AM. L. 1, 9 (2006) (“Nino
Scalia’s warm and ebullient personality has won him many friends, across the ideological spectrum. To cite one
prominent example, Ruth Bader Ginsburg refers to him as her closest friend on the Court....”), Justice Scalia’s
colleagues and legal scholars have noted that his approach at oral argument and sharp tone of his opinions, at times,
were perceived to be counterproductive to persuading others to agree with him. See, e.g. Hon. Sandra Day O’Connor,
as quoted in Joan Biskupic, SANDRA DAY O’CONNOR: HOW THE FIRST WOMAN ON THE SUPREME COURT BECAME ITS
MOST INFLUENTIAL JUSTICE 277 (stating that with respect to Justice Scalia’s criticism of her opinion, that it “probably
isn’t true” that “[s]ticks and stones will break my bones, but words will never hurt me”); see generally DAVID A.
SCHULTZ & CHRISTOPHER E. SMITH, THE JURISPRUDENTIAL VISION OF JUSTICE ANTONIN SCALIA 99-100 (1996) (arguing
that Scalia’s approach to his colleagues at times “diminished his ability to persuade other justices to join in his
opinions”); JEFFREY ROSEN, THE SUPREME COURT: THE PERSONALITIES AND RIVALRIES THAT DEFINED AMERICA 199(continued...)
85
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Scalia’s writing could be quite pointed and acerbic in style.91 More importantly, Justice Scalia’s
often-strict adherence to his originalist judicial philosophy at times resulted in him writing fairly
broad opinions that did not garner the votes of the majority of the Court, as his colleagues were
unwilling to embrace wholly Justice Scalia’s take on the law.92 In contrast, Judge Garland may be
less pointed in his approach to judging, particularly with respect to his writing style. Following
Judge Garland’s recent nomination to the Supreme Court, his D.C. Circuit colleague, Judge Brett
Kavanaugh, widely viewed as a one of the more conservative members of that court,93 spoke
(...continued)
200 (2006) (arguing that Scalia’s “relentless personal attacks on O’Connor and Kennedy dissuaded them from
overturning Roe v. Wade”); William K. Kelley, Justice Antonin Scalia and the Long Game, 80 GEO. WASH. L. REV.
1601, 1602 (2012) (“It is fair to say ... that Justice Scalia’s judicial style and sometimes caustic pen alienated some of
his colleagues, particularly Justice Sandra Day O’Connor.... Justice Scalia famously characterized Justice O’Connor’s
separate opinion in Webster v. Reproductive Health Services as ‘irrational’ and not to be taken ‘seriously’—and in the
process was said to have fairly seriously alienated Justice O’Connor. Other Justices were also put off by Justice
Scalia’s style.”); Tinsley E. Yarborough, THE REHNQUIST COURT AND THE CONSTITUTION 44 (2000) (quoting Justice
O’Connor regarding Scalia’s Webster opinion and noting that “O’Connor’s alienation from Scalia probably worked to
undermine further whatever influence he might otherwise have enjoyed among the justices”); but see Steven G.
Calabresi & Justin Braga, The Jurisprudence of Justice Antonin Scalia: A Response to Professor Bruce Allen Murphy
and Professor Justin Driver, 9 NYU J.L. & LIBERTY 793, 820 (2015) (“David Souter, like Sandra Day O’Connor and
Anthony M. Kennedy, was not ‘driven to the left’ by Justice Scalia’s dissents and his ebullient, joyful personality.
Souter, O’Connor, and Kennedy were ALWAYS well to the left of Justice Scalia, and this fact was widely known to
many people at the time they were appointed.”). Because Justices are “reluctant to reveal the inner workings of the
Supreme Court, let alone reveal any interpersonal problems,” the impact of Justice Scalia’s personality and approach
toward his colleagues “will never be known,” see SCHULTZ & SMITH, supra at 101, and, as a result, this report’s
discussion of Justice Scalia’s personality and temperament is focused on what can be demonstrated—Justice Scalia’s
ability to garner support among his colleagues on the Court for opinions that he wrote.
91
See, e.g., Obergefell v. Hodges, --- U.S. ---, 135 S. Ct. 2584, 2630 (2015) (“If, even as the price to be paid for a fifth
vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a
liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their
identity,’ I would hide my head in a bag. The Supreme Court of the United States has descended from the disciplined
legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”); Holland v.
Illinois, 493 U.S. 474, 486 (1990) (Scalia, J.) (“Justice [Marshall’s] dissent rolls out the ultimate weapon, the
accusation of insensitivity to racial discrimination—which will lose its intimidating effect if it continues to be fired so
randomly.”); Webster v. Reprod. Health Servs., 492 U.S. 490, 532 (1989) (Scalia, J., concurring in part and concurring
in the judgment) (“Justice [O’Connor’s] assertion ... that a ‘fundamental rule of judicial restraint’ requires us to avoid
reconsidering Roe, cannot be taken seriously”).
92
See, e.g., Kerry v. Din, --- U.S. ---, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in the judgment)
(declining to join Justice Scalia’s opinion that held that a citizen does not have a protected liberty interest in the visa
application of her alien spouse); Hudson v. Michigan, 547 U.S. 586, 602 (2006) (Kennedy, J., concurring in part and
concurring in judgment) (declining to provide the fifth vote for a Justice Scalia’s opinion openly questioning the
continued viability of the exclusionary rule); Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 764
(1995) (Scalia, J.) (receiving only four votes for the proposition that “it is no violation [of the Establishment Clause] for
government to enact neutral policies that happen to benefit religion”); Planned Parenthood v. Casey, 505 U.S. 833, 846
(1992) (joint opinion of Kennedy, O’Connor, & Souter, JJ.) (rejecting Justice Scalia’s argument to overturn Roe
entirely); Lujan v. Defenders of Wildlife, 504 U.S. 555, 580 (1992) (Kennedy, J., concurring) (declining to join part of
Justice Scalia’s opinion holding that an injury for purposes of Article III standing needed to equate with injuries found
at common law); Harmelin v. Mich., 501 U.S. 957, 996 (1991) (Kennedy, J., concurring) (refusing to join Justice
Scalia’s opinion arguing that the Eighth Amendment contains no proportionality guarantee); Michael H. v. Gerald D.,
491 U.S. 110, 127-128, n.6 (1989) (Scalia, J.) (delivering the opinion of the court except for footnote six which broadly
argued that due process rights should be viewed with heightened specificity); see generally SCHULTZ & SMITH, supra
note 90 at 99-100 (contending that Justice Scalia’s “clear, fixed vision of how cases should be decided” may have
prevented other Justices from joining his opinions).
93
See Jeffrey Toobin, Holding Court, NEW YORKER (March 26, 2012), http://www.newyorker.com/magazine/2012/03/
26/holding-court (“If a Republican ... wins in November, his most likely first nominee to the Supreme Court will be
Brett Kavanaugh.”).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
highly of the new nominee, describing Judge Garland as “a brilliant jurist,” “a great Chief Judge,”
“thoughtful,” “collegial,” “considerate,” and someone “who works well with others.”94 Such
sentiments are echoed by lawyers who have practiced in front of Judge Garland. Anonymous
evaluations in the Almanac of the Federal Judiciary uniformly describe him with regard to his
legal ability in positive terms, including having an “excellent temperament” and being
“courteous” and “cerebral.”95
Such comments appear not to be merely abstract descriptions of Judge Garland’s personality;
instead Judge Garland’s judicial writings could be seen to reflect a tendency toward consensusbuilding. For example, for having such a lengthy career on the D.C. Circuit, Judge Garland has
dissented relatively infrequently—on average, less than once per year96—something that suggests
he may value collegiality above adhering to a particular legal orthodoxy in his legal writings.97
Moreover, when Judge Garland has written the majority opinion for a court, his opinions have
tended to garner few separate opinions relative to many of his colleagues on the D.C. Circuit,98
which may indicate that the nominee places a high value on reaching a consensus in the opinions
he writes.99 Judge Garland’s supporters suggest that, because of his tendency to consensusbuilding, he may be able to find agreement among colleagues with disparate views on the law in
especially contentious cases if he were to be elevated to the Supreme Court.100 While it is
94
See Hon. Brett M. Kavanaugh, at The Court: Power, Policy, and Self-Government, AM. ENTER. INST. (March 31,
2016), http://www.aei.org/events/the-court-power-policy-and-self-government/.
95
See Merrick B. Garland, 2 ALMANAC OF THE FED. JUDICIARY, 2016 WL 15131 (“Lawyers were unanimous in their
praise of Garland’s legal ability. ‘His legal ability is the best.’ ‘He’s very smart.’ ‘I have a high regard for him; he’s
very bright and very able.’ ‘His legal ability is extraordinary.’ ‘He has excellent legal ability.’ ‘His legal ability is
superb.’ ‘He’s a brilliant judge.’ ‘He’s one of the great judges in the country; he’s a spectacular judge.’ ‘He’s very
bright.’ ‘He’s a very, very smart guy; he has very strong legal ability.’ Garland is very courteous to litigants, lawyers
interviewed said. ‘His courtroom demeanor is excellent.’ ‘He’s very nice.’ ‘He has an excellent temperament.’ ‘He’s
courteous to litigants.’ ‘It’s very good; he’s very even tempered.’ ‘He’s a judge’s judge.’ ‘It’s pretty good, an Aminus.’ ‘He’s no-nonsense.’ ‘He’s very courteous.’”).
96
See Garland Citation List of Dissenting Opinions, CONG. RES. SERV., http://www.crs.gov/products/Documents/
Garland%20Citation%20List%20of%20Dissenting%20Opinions/pdf (listing 16 dissenting opinions for Judge Garland).
By comparison, an April 2016 Lexis search indicates that Judge Kavanaugh, who has served on the D.C. Circuit since
2006, has authored 48 dissenting opinions, averaging nearly five dissents per year. Judge Tatel, who has served on the
D.C. Circuit since 1994, has written 56 dissents in his tenure on the court, averaging around two and a half dissents per
year.
97
Lee Epstein, William M. Landes, & Hon. Richard A. Posner, Why (and When) Judges Dissent: A Theoretical and
Empirical Analysis, 3 J. LEGAL ANALYSIS 101, 135 (2011) (arguing that the frequency with which a judge dissents may
be a product of the costs of “impaired collegiality” versus the benefits of influencing or clarifying the law).
98
An April 2016 Lexis search of Judge Garland’s majority opinions on the D.C. Circuit indicate that in 21 out of 329
(6.4%), a concurrence or dissent was written in response to the majority. By comparison, an April 2016 Lexis search
showed that Judge Kavanaugh, who has served on the D.C. Circuit since 2006, authored 36 majority opinions that
prompted a concurrence or dissent out of approximately 162 majority opinions (22.2%). Judge Tatel, who has served
on the D.C. Circuit since 1994, has written approximately 447 majority opinions of which 75 prompted a concurrence
or dissent (16.8%).
99
See Epstein, Jeffrey A. Segal & Harold J. Spaeth, The Norm of Consensus on the U.S. Supreme Court, 45 AM. J. POL.
SCI. 362, 362, 364-65 (2001) (arguing that Justices, driven by a norm of suppressing dissent in order to preserve
consensus, will write broad unanimous opinions).
100
See Nina Totenberg, Merrick Garland Has a Reputation of Collegiality, Record of Republican Support, NAT’L PUB.
RADIO (March 16, 2016), http://www.npr.org/2016/03/16/126614141/merrick-garland-has-a-reputation-of-collegialityrecord-of-republican-support (“But Garland also has been a persuasive voice for liberals, managing to bring
conservatives over to his side on issues ranging from the environment to national security.”); Jaime Gorelick, as quoted
in Ed Shanahan, Does D.C. Circuit Court Judge Merrick Garland Have Supreme Potential?, AM. L. LITIG. DAILY
(November 17, 2008), http://amlawdaily.typepad.com/amlawdaily/2008/11/the-am-law-li-9.html (“If you look at
[Judge Garland’s] opinion in the Uighur case, he brought along judges from very different parts of the political and
(continued...)
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impossible to firmly predict how Judge Garland’s past work might impact any future service on
the High Court,101 his work on the D.C. Circuit on a number of high profile matters could be said
to support such claims.102 For example, in 2003, Judge Garland authored a unanimous opinion,
joined by a Reagan-era Supreme Court nominee, Judge Douglas Ginsburg, and Judge Harry T.
Edwards, an appointee of President Jimmy Carter, which rejected a challenge alleging that, in the
circumstances of the case, Congress had exceeded its powers under the Commerce Clause when
enacting the Endangered Species Act.103 Subsequently, in 2008, in Parhat v. Gates,104 Judge
Garland wrote for the court in invalidating a determination by a Guantanamo Bay combatant
status review tribunal that the petitioner was an enemy combatant,105 a conclusion joined by
Judges David Sentelle and Thomas Griffith—sometimes viewed as two of the court’s more
judicially conservative members106—who sit on a court that often takes a skeptical view of the
rights of detainees vis-a-vis the rights of the government.107 Similarly, Judge Garland’s 2015
opinion on behalf of a unanimous en banc court in Wagner on the ever-contentious issue of the
constitutionality of campaign finance regulations may speak to the nominee’s tendency to be able
to garner the support of disparate colleagues in potentially difficult cases.108 Judge Garland’s
ability to garner unanimous opinions in such cases resolving legal issues that have tended to
sharply divide the High Court in recent years109 may demonstrate his willingness to prioritize
collaboration above ideological rigidity in his work.110
Statutory Interpretation
Unlike Justice Scalia, who publicly advocated for textualism and a canons-based approach to
statutory interpretation,111 Judge Garland does not appear to have articulated an overarching
(...continued)
judicial spectrum.... That is precisely what one would want on the Supreme Court.”).
101
See supra “Predicting Nominees’ Future Decisions on the Court.”
102
As such, the fact that judges of differing ideologies might agree in any case is—in and of itself—unremarkable, , as
the D.C. Circuit tends to issue unanimous opinions in many cases. See supra note 27 and accompanying text. What is
notable is that Judge Garland has been able to author unanimous opinions in number of cases on often contentious
matters like the scope of Congress’s power vis-á-vis the states, the rights of detainees at Guantanamo Bay, or the limits
the First Amendment imposes on campaign finance restrictions.
103
See Rancho Viejo LLC v. Norton, 323 F.3d 1062 (D.C. Cir. 2003).
104
532 F.3d 834 (D.C. Cir. 2008).
105
Parhat, 532 F.3d at 836-37.
106
See Thomas B. Colby & Peter J. Smith, The Return of Lochner, 100 CORNELL L. REV. 527, 575 (2015) (noting the
judicial leanings of Judges Sentelle and Griffith on economic issues).
107
See Janet Cooper Alexander, The Law-Free Zone and Back Again, 2013 U. ILL. L. REV. 551, 595 (2013) (arguing
that Guantanamo Bay detainee cases in the D.C. Circuit tend to be divisive with judges with perceived conservative
leanings “rul[ing] against the detainee in every case that has come before” the court); see generally CRS Report
R41156, Judicial Activity Concerning Enemy Combatant Detainees: Major Court Rulings, by (name redacted) and
(name redacted)
(discussing decisions by D.C. Circuit in litigation concerning Guantanamo detainees).
108
See Wagner v. FEC, 793 F.3d 1 (D.C. Cir. 2015) (en banc).
109
See, e.g., NFIB v. Sebelius, --- U.S. ---, 132 S. Ct. 2566 (2012) (5-4 decision on scope of the Commerce Clause);
Boumediene v. Bush, 553 U.S. 723 (2008) (5-4 decision on Guantanamo Bay detainees’ ability to seek habeas review
of the legality of their detention); Citizens United v. FEC, 558 U.S. 310 (2010) (5-4 decision on limits of the First
Amendment imposes on a campaign finance regulation).
110
See supra notes 97 and 99.
111
For further discussion of Justice Scalia’s approach to statutory interpretation, as well as questions about the degree
to which he applied textualism and canons of interpretation in his own decisions while on the Court, see CRS Scalia
report, supra note 9, at 4-7.
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approach to or philosophy of statutory interpretation. However, his practices when construing
statutes in his published opinions could be said to resemble those of many other judges,112 with a
couple of exceptions noted below, in that he generally bases his conclusions about a statute’s
meaning upon consideration of multiple factors including the text, structure, context, and history
of specific statutory provisions.113 For example, in his dissenting opinion in United States ex rel.
Totten v. Bombardier Corp., Judge Garland relied, in part, upon the “plain text” of the False
Claims Act (FCA) in rejecting the majority’s view that presentment of a false or fraudulent claim
to the federal government was effectively required for liability under an FCA provision that had
“no express requirement of presentment to an officer or employee of the United States
Government.”114 He also pointed to other provisions of the FCA and, in particular, its definition
of “claim,” which he noted did not require presentment of a false or fraudulent claim to the
federal government.115 In addition, he drew support for his proposed interpretation from the
legislative history of the FCA,116 as well as prior interpretations of the act by the D.C. Circuit.117
Judge Garland’s approach to construing statutory text can also be seen as fairly mainstream—and
even to resemble that of Justice Scalia118—in that Judge Garland often highlights how people
would normally understand specific statutory terms. For example, in his opinion for the court in
Southeast Alabama Medical Center v. Sebelius, Judge Garland found that the Department of
Health and Human Services (HHS) had properly included fringe benefits when calculating
hospitals’ “wage and wage-related costs” because, if fringe benefits were not to be seen as wages,
they “fit comfortably within the broad meaning of the term ‘wage-related.’”119 Similarly, in his
opinion for the court in Public Citizen, Inc. v. HHS, Judge Garland noted how people would
normally understand the term “disposition” when rejecting HHS’s argument that Medicare peerreview organizations (PROs) had met their obligation to disclose the “final disposition of
112
William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 COLUM. L. REV. 531, 532 (2013)
(“[Justice Scalia’s] judicial opinions, speeches, articles, and books have generated great debates, which have
(ironically) revealed a substantial consensus about the ground rules for statutory interpretation.... [V]irtually all
theorists and judges are ‘textualists,’ in the sense that all consider the text the starting point for statutory interpretation
and follow statutory plain meaning if the text is clear.... [V]irtually all theorists and judges are also ‘purposivists,’ in the
sense that all believe that statutory interpretation ought to advance statutory purposes, so long as such interpretations do
not impose on words a meaning they will not bear. And virtually all theorists and judges insist the statutory context is
important in discerning the meaning of statutory texts. So what has the debate been all about? Doctrinally, the big
debate has been whether interpretative context can include internal ‘legislative history’ preceding a statute’s enactment
into law.... Theoretically, the big debate has focused on what the role of judges should be.”). For more on the latter, see
supra “Role of the Judiciary.”
113
In some cases, Judge Garland seems to have viewed the consideration of these factors to be required by Supreme
Court or circuit precedents. See, e.g., United States v. Cassell, 530 F.3d 1009, 1013 (D.C. Cir. 2008) (citing Supreme
Court precedent when looking at the “language, structure, context, history, and such other factors as typically help
courts determine a statute’s objectives” in construing particular statutory text); Pub. Citizen, Inc. v. HHS, 332 F.3d 654,
662 (D.C. Cir. 2003) (citing circuit precedent when looking at the “text, structure, legislative history, and purpose” of
the statute in question). In other cases, Judge Garland invokes similar factors without expressly noting that he is relying
upon Supreme Court or circuit precedents when applying them to construe statutory text. See, e.g., Holland v. Williams
Mountain Coal Co., 496 F.3d 670, 672-76 (D.C. Cir. 2007); United States ex rel. Totten v. Bombardier Corp., 380 F.3d
488, 502-13 (D.C. Cir. 2004) (Garland, J., dissenting).
114
Totten, 380 F.3d at 503.
115
Id. at 506, 510-11.
116
Id. at 511-13.
117
Id. at 503 (citing, among other things, United States ex rel. Yesudian v. Howard University, 153 F.3d 731 (D.C. Cir.
1998)).
118
For more on Justice Scalia’s approach here, see CRS Scalia report, supra note 9, at 4-7.
119
572 F.3d 912 (D.C. Cir. 2009).
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[patients’] complaint[s]” by sending a form letter that noted that the PRO had reviewed the
complaint and would take appropriate action, but did not specify what action was to be taken.120
According to Judge Garland, most people would not see these form letters as disclosing the final
disposition of the complaint, because the words “final disposition” are “far more persuasive[ly]
read[]” to mean informing persons of the “substantive result or conclusion” of a matter, not
merely that the matter has been completed.121 Notably, Judge Garland has sometimes referenced
dictionary definitions of statutory terms in such discussions,122 a practice that often factors in
textualist approaches123 (although Judge Garland does not appear to have displayed any particular
concern with ensuring that these definitions are contemporaneous with the statute’s enactment, as
Justice Scalia did).124 However, Judge Garland very seldom expressly invokes the phrase
“original meaning,”125 which was a key component of Justice Scalia’s approach to textualism,126
and can serve as an indicator of a similar interpretative approach.127
120
332 F.3d 654, 662 (D.C. Cir. 2003).
Id.; see also id. at 663 (“We expect that litigants, including the parties to this appeal, would be both surprised and
puzzled if all we told them at the end of the day was that ‘the case has been decided’—without telling them what the
decision was.”). For other examples of a similar approach to statutory interpretation by Judge Garland, see Sottera, Inc.
v. FDA, 627 F.3d 891, 899 (D.C. Cir. 2010) (Garland, J., concurring) (“On its face, the natural meaning of the term
‘tobacco product’ is a product—like cigarettes or chewing tobacco—that contains tobacco.”); Bennett v. Islamic
Republic of Iran, 618 F.3d 19, 24 (D.C. Cir. 2010) (Garland, J., concurring) (“No one would say that property a tenant
uses as a gin joint is being used exclusively for educational purposes, even if the landlord uses the rent to send his
children to college.”); United States v. Cassell, 530 F.3d 1009, 1017 (D.C. Cir. 2008) (finding that the use of the phrase
“convicted of a violation” makes clear that the provisions of 18 U.S.C. §924(c)(1) apply only at sentencing); Totten,
380 F.3d at 503 (Garland, J., dissenting) (“The court’s interpretation of that subsection as requiring presentment is ...
inconsistent with its plain text,” since the word “presentment” does not appear there).
122
Public Citizen, 332 F.3d at 662-63; Se. Ala. Med. Ctr., 572 F.3d at 917; Grand Canyon Air Tour Coal. v. Fed.
Aviation Admin. (FAA), 154 F.3d 455, 474-75 (D.C. Cir. 1998) (resorting to dictionaries on the question of whether
“substantial” means more than half); Fin. Planning Ass’n v. SEC, 482 F.3d 481, 496 (D.C. Cir. 2007) (Garland, J.,
dissenting) (resorting to the dictionary definition of “other” in construing the phrase “other persons”).
123
See, e.g., MCI Telecomm. Corp. v. Am. Tel. & Tel. (AT&T) Co., 512 U.S. 218, 228-30 (1994) (discussing the
definitions of the term “modify” given in various dictionaries when determining whether certain proposed changes
were within the FCC’s authority under a statutory provision that authorized the FCC to “modify any requirement” of
the Federal Communications Act).
124
See, e.g., id. at 228 (rejecting the definition of “modify” given in Webster’s Third New International Dictionary on
the grounds that “[i]n 1934, when the Communications Act became law—the most relevant time for determining a
statutory term’s meaning ...—Webster’s Third was not yet even contemplated.”).
125
It would appear that Judge Garland has authored only one opinion that uses the words “ordinary meaning” in a
context that does not involve a clear quotation or paraphrase of another court decision or a party’s arguments. See
Initiative & Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299, 1314 (D.C. Cir. 2005) (noting, in construing a Postal
Service regulation, that “[t]he ordinary meaning of ‘solicit’ is merely to request, without reference to whether an
immediate response is expected”); see also id. at 1317 (also referring to the “ordinary meaning” of the term “solicit”).
In the few other cases where an opinion authored by Judge Garland uses the phrase “ordinary meaning,” the opinion
either is quoting or paraphrasing another opinion or a party, or is construing text that is not a statute or regulation. See
Se. Ala. Med. Ctr., 572 F.3d at 916-17 (using the phrase “ordinary meaning” in paraphrasing the district court’s
decision and in quoting a Supreme Court opinion); McDonnell Douglas Corp. v. Dep’t of the Air Force, 375 F.3d 1182
(D.C. Cir. 2004) (Garland, J., dissenting) (referring to “ordinary meaning” when discussing the text of a prior Supreme
Court opinion); Global Crossing Telecomm., Inc. v. FCC, 259 F.3d 740 (D.C. Cir. 2001) (noting that the agency had
relied on the “ordinary meaning” of the term “certify,” as defined in Black’s Law Dictionary); In re Sealed Case No.
96-3167, 153 F.3d 759, 771 (D.C. Cir. 1998) (noting that the Supreme Court had, in an earlier decision, held that
Congress intended “carry” to have its “ordinary meaning” in the statute in question).
126
For more on Justice Scalia’s approach here, see CRS Scalia report, supra note 9, at 4-7.
127
See, e.g., Miranda O. McGowan, Do as I Do, Not as I Say: An Empirical Investigation of Justice Scalia’s Ordinary
Meaning Method of Statutory Interpretation, 78 MISS. L.J. 129, 148-49 (2009) (noting that subtle differences in judges’
use of terms like “ordinary meaning,” “plain meaning,” etc., can reflect more fundamental differences in their
(continued...)
121
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In addition, Judge Garland’s approach to statutory interpretation can be seen to resemble other
judges’ approaches in that he often refers to commonly accepted “canons”—or general
principles—of statutory interpretation.128 Judge Garland has invoked many different interpretative
canons in the opinions he has authored while on the D.C. Circuit, including, but not limited to,
canons providing that (1) similar language in the same or related statutes is to be construed
similarly;129 (2) when Congress uses particular language in one section of a statute, but omits this
language in another section of that same statute, it is presumed to have acted “intentionally and
purposely in the ... exclusion”;130 (3) courts are to give effect to every clause and word of a
statute, if possible;131 (4) words used in the singular are presumed to include the plural;132 (5)
specific terms in a statute usually prevail over general ones;133 (6) repeals by implication are
disfavored and are not to be presumed to have occurred;134 (7) titles or headings in statutory text
provide only limited interpretative aid and are not meant to take the place of detailed provisions
of the text;135 (8) Congress is presumed to know how courts have construed particular statutory
language when it enacts other statutes using that same language;136 (9) the inclusion of some
things in a list means the exclusion of other things not listed;137 and (10) the word “or” is
disjunctive, meaning that only one item in a list need be satisfied.138 However, Judge Garland’s
resort to these and other canons of statutory interpretation appears to be driven by the specific
statutory text in question and, in particular, whether one or more canons may be seen as helpful in
construing the statutory text. It does not appear to be driven by a desire for standards or rules, per
se, as means to cabin judicial discretion, as was the case with Justice Scalia.139
Two aspects of Judge Garland’s practice in construing statutory text can be seen as more
distinctive. One is the frequency with which he finds that statutory language is ambiguous, a
finding which means that courts must generally defer to the agency’s interpretation of the
statutory language.140 Specifically, Judge Garland seems to have not infrequently taken the view
(...continued)
approaches to statutory interpretation).
128
See infra notes 129-139 and accompanying text. In his dissenting opinion in Totten, Judge Garland did suggest that
the various canons of statutory interpretation employed by the majority “serve here as ‘cannons’ of statutory
destruction.” United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 503 (D.C. Cir. 2004). However,
immediately thereafter, he clarified that he had “no quarrel with the canons the court has chosen,” but rather with the
conclusion they were used to support in Totten. Id.
129
See, e.g., United States v. Cassell, 530 F.3d 1009, 1017 (D.C. Cir. 2008); In re Sealed Case No. 97-312, 181 F.3d
128, 133 (D.C. Cir. 1999).
130
See, e.g., Totten, 380 F.3d at 505 (Garland, J., dissenting); Pub. Citizen, Inc. v. HHS, 332 F.3d 654, 665 (D.C. Cir.
2003) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)); Allied Local & Reg’l Mfrs. Caucus v. EPA, 215
F.3d 61, 71 (D.C. Cir. 2000).
131
See, e.g., Totten, 380 F.3d at 505, 509 (Garland, J., dissenting); Public Citizen, 332 F.3d at 670 (quoting Moskal v.
United States, 498 U.S. 103, 109-110 (1990)).
132
See, e.g., Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 9 (D.C. Cir. 2003).
133
See, e.g., Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 306 (D.C. Cir. 2014).
134
See, e.g., id. at 307.
135
See, e.g., Holland v. Williams Mountain Coal Co., 496 F.3d 670, 675 (D.C. Cir. 2007).
136
See, e.g., id.
137
In re Sealed Case No. 97-312, 181 F.3d 128, 132 (D.C. Cir. 1999).
138
United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 509 (D.C. Cir. 2004) (Garland, J., dissenting).
139
See, e.g., William D. Popkin, An “Internal” Critique of Justice Scalia’s Theory of Statutory Interpretation, 76
MINN. L. REV. 1133, 1156 (1991/1992) (discussing Justice Scalia’s concern that judicial discretion in interpreting
statutes is inconsistent with a government of rules).
140
See Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984); infra “Administrative Law.”
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that particular statutory terms which are not defined, or whose meaning is not expressly
prescribed by Congress, are ambiguous.141 His dissenting opinion in Financial Planning
Association v. Securities and Exchange Commission (SEC) can be seen to illustrate this
practice.142 The case centered upon provisions of the Investment Advisers Act that, in relevant
part, exempt from regulation under the act:
[1] any broker or dealer ... whose performance of [investment advice] services is solely
incidental to the conduct of his business as a broker or dealer and ... who receives no
special compensation therefore; ... or
[2] such other persons not within the intent of this paragraph, as the Commission may
designate by rules and regulations or order.143
The majority took the view that this statutory language unambiguously precluded the SEC from
exempting broker-dealers who received “special compensation” from regulation under the act on
the grounds that the first of these exemptions is “all inclusive” of broker-dealers because it uses
the word “any.”144 Thus, in the majority’s view, broker-dealers who receive “special
compensation” are excluded from the phrase “other persons not within the intent of this
paragraph,” and the SEC cannot rely upon this language to exempt broker-dealers who receive
“special compensation” from regulation under the act.145 Judge Garland disagreed, viewing the
phrases “such other persons” and “within the intent of this paragraph” as inherently ambiguous.146
In so doing, he noted the lack of any language in the statute that purported to bar the SEC from
exempting under the second provision broker-dealers who are not covered by the first
provision,147 as well as the absence of a definition of “other persons” in the act.148
141
See generally CRS Congressional Distribution Memorandum, Judge Merrick Garland and His Approach Towards
Administrative Law, by (name redacted), (name redacted), and (name redacted) (noting that Judge Garland voted to
uphold the agency’s interpretation in all but five of the 21 cases in which he participated (either as part of a three-judge
panel or in en banc proceedings) that (1) raised Chevron issues and (2) prompted a concurring or dissenting opinion by
a member of the court). Copies of this memorandum are available upon request from its authors.
142
482 F.3d 481 (D.C. Cir. 2007).
143
Id. at 484-85.
144
Id. at 488 (“The word ‘any’ is usually understood to be all inclusive.”).
145
Id. at 489 (“[T]he word ‘other’ connotes ‘existing besides, or distinct from, that already mentioned or implied.’”).
See also id. (“There is nothing to suggest that Congress did not intend the words ‘any’ or ‘other’ to have their ‘ordinary
or natural meaning.’”).
146
Fin. Planning Ass’n v. SEC, 482 F.3d 481, 495 (D.C. Cir. 2007) (Garland, J., dissenting).
147
Id.
148
Id. at 496. But see id. at 492 (majority opinion) (“First, [a]mbiguity is a creature not of definitional possibilities but
of statutory context.... Second, the absence of a statutory definition of ‘intent of this paragraph’ and ‘other persons’
does not necessarily render their meaning ambiguous.”). Other cases manifest a similar approach to statutory
interpretation by Judge Garland. See, e.g., Se. Ala. Med. Ctr. v. Sebelius, 572 F.3d 912, 917, 923 (D.C. Cir. 2009);
(noting that the statute in question does not define “wages,” “wage-related,” or “geographic area”); Am. Corn Growers
Ass’n v. EPA, 291 F.3d 1, 19 (D.C. Cir. 2002) (Garland, J., dissenting) (“There is nothing in the statutory language that
requires a source-by-source application of the fifth factor.”); Arizona v. Thompson, 281 F.3d 248, 257 (D.C. Cir. 2002)
(noting that there is nothing in the statutory phrase “authorized to use” that dictates that funds be used under a state
plan, as opposed to a state cost allocation); Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1319-20 (D.C. Cir. 1998)
(noting that the statute in question did not define the phrase “same as” or indicate whether chemical or clinical identity
was contemplated); Allied Local & Reg’l Mfrs. Caucus v. EPA, 215 F.3d 61, 70-71 (D.C. Cir. 2000) (noting that
nothing in the statute specifies that the only way to determine reactivity was through the agency’s own studies); Grand
Canyon Air Tour Coal. v. FAA, 154 F.3d 455, 466-67 (D.C. Cir. 1998) (“There is nothing in the Overflights Act’s
reference to ‘natural quiet’ that requires the FAA to define the term by survey results rather than decibel level.”); id. at
467 (noting that there is nothing in the statute requiring the agency to create one or a few “quiet” zones); id. at 474
(observing that the statute does not say “noise free”).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Judge Garland’s assessment of when or whether statutory text is ambiguous is significant because
statutory text must be found to be ambiguous for a court to defer to an administrative agency’s
interpretation of that text under the precedent of Chevron U.S.A., Inc. v. Natural Resources
Defense Council; if the text is seen as unambiguous, “that is the end of the matter; for the court,
as well as the agency, must give effect to the unambiguously expressed intent of Congress.”149
Indeed, Judge Garland’s penchant for finding ambiguity in statutory texts would seem to underlie
the observation of one D.C. Circuit judge, who dissented from another opinion authored by Judge
Garland, that “some will find ambiguity even in a ‘No Smoking’ sign,”150 although this tendency
could be seen to reflect a more generalized desire by Judge Garland to avoid having the courts
constrain the options of the political branches.151
The other notable aspect of Judge Garland’s approach to statutory interpretation involves his
willingness to consider legislative history materials in construing statutory text.152 Indeed, his
resort to legislative history materials when construing statutes can be seen as interrelated with his
willingness to find ambiguity in statutory text, as he has characterized the consideration of
legislative history materials as “appropriate” when statutory text is ambiguous.153 For example, in
the Totten case mentioned earlier, the majority opinion by then-Judge John Roberts criticized
Judge Garland’s dissenting opinion, which the majority characterized as having excessively relied
upon legislative history materials to construe the FCA. According to then-Judge Roberts, “[t]he
dissent literally begins and ends with legislative history.... We [in the majority] will end as we
began, too, but with the statutory language.”154 However, the disagreement among the Totten
panel could be characterized as something less than a dispute between judges with radically
different philosophies of statutory interpretation. Judge Garland’s opinion in Totten characterizes
the “existing statutory text” as the “starting point in discerning congressional intent,”155 and the
Totten majority also made use of legislative history materials.156
149
Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837, 843 (1984). Notably, in Grand Canyon Air Tour
Coalition, Judge Garland paraphrased Chevron as saying that “where Congress leaves a statutory term undefined, it
makes an implicit ‘delegation of authority to the agency to elucidate a specific provision of the statute’ through
reasonable interpretation.” 154 F.3d at 474 (quoting Chevron, 467 U.S. at 843-44). However, the cited passage of
Chevron refers to the “unambiguously expressed intent of Congress,” not congressionally established definitions per se.
150
Sec’y of Labor v. Excel Mining, LLC, 334 F.3d 1, 14 (D.C. Cir. 2003) (Sentelle, J., dissenting). See also In re
Sealed Case No. 97-312, 181 F.3d 128, 144 (D.C. Cir. 1999) (Sentelle, J., concurring) (stating, of the majority opinion
by Judge Garland, which had found the statutory language in question ambiguous, “I write separately only to say that I
think this is not nearly so close a case as the very thoroughness of the majority opinion might imply”).
151
See supra “Role of the Judiciary.”
152
See, e.g., Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014); Nat’l Res. Def. Council v.
Nuclear Reg. Comm’n (NRC), 216 F.3d 1180, 1193-94 (D.C. Cir. 2000); Pub. Citizen, Inc. v. HHS, 332 F.3d 654, 668
(D.C. Cir. 2003); Grand Canyon Air Tour Coal., 154 F.3d at 467. It is important to note that, in at least some cases,
Judge Garland would appear to have viewed the consideration of legislative history materials as required by Supreme
Court or circuit precedent. See supra note 113 and accompanying text. However, in other cases, he does not expressly
indicate that he views precedent as requiring the consideration of legislative history materials when resorting to such
materials. See id. See also Merrick B. Garland, Antitrust and Federalism: A Response to Professor Wiley, 96 YALE L.
REV. 1291, 1292 n.4 (1987) (“There is nothing wrong with a court looking at legislative history in order to interpret the
meaning of a statute.”).
153
See United States ex rel. Totten v. Bombardier Corp., 380 F.3d 488, 511-12 (D.C. Cir. 2004) (Garland, J.,
dissenting).
154
Id. at 502.
155
Id. at 504 (Garland, J., dissenting) (quoting Lamie v. U.S. Trustee, 540 U.S. 526, 534 (2004)).
156
See, e.g., id. at 495. Chief Justice Roberts subsequently acknowledged the “difficulty” of this case, as well as the
possibility that the majority “didn’t get it right” in his own confirmation hearings to the High Court. See Confirmation
Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States: Hearing Before the
(continued...)
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Judge Garland’s use of legislative history materials in other cases can also be seen as relatively
restrained in that (1) he generally treats legislative history as only one factor among many when
construing text, rather than as the sole basis for his interpretation;157 (2) he repeatedly notes that
the statutory text, and not legislative history materials, is paramount in statutory interpretation;158
and (3) he has, in several cases, recognized the limitations of legislative history materials to
interpret a statute.159 More generally, Judge Garland does not appear to have ever adopted an
interpretation based on congressional purpose—as ascertained solely from legislative history
materials—that was contrary to what he viewed as unambiguous statutory text to the contrary.160
In both his penchant for finding statutory text ambiguous and his resort to legislative history
materials in construing statutory text, Judge Garland’s practices can be seen to diverge from those
of former Justice Scalia. While Justice Scalia was a vocal supporter of the approach adopted by
the Court in Chevron,161 he frequently found that statutory text was unambiguous and, thus, there
was no need to consider the agency’s interpretation of the text.162 Justice Scalia also opposed the
consideration of legislative history materials, including their use to confirm text-based
interpretations of statutory text.163 In this sense, Judge Garland would, if he were elevated to the
(...continued)
Committee on the Judiciary, United States Senate, 109th Congress, 1st Sess., 320-21 (2005). However, while
acknowledging the possibility that Totten might have been wrongly decided, Chief Justice Roberts continued to
maintain that the Totten majority was correct. Id. at 321.
157
See, e.g., Mittleman v. Postal Regulatory Comm’n, 757 F.3d 300, 305 (D.C. Cir. 2014) (taking the view that a textbased interpretation is “confirmed by the legislative history of the section”).
158
See, e.g., United States v. Cassell, 530 F.3d 1009, 1017 (D.C. Cir. 2008) (looking at the actual words of the statute
last, but characterizing the statutory text as the “most significant” factor in construing the statute); Pub. Citizen, Inc. v.
HHS, 332 F.3d 654, 662 (D.C. Cir. 2003) (characterizing the statutory text as “the most important manifestation of
Congressional intent”).
159
See, e.g., Cassell, 530 F.3d at 1017 (characterizing legislative history materials as “inconclusive” on the question at
issue); Arizona v. Thompson, 281 F.3d 248, 257 (D.C. Cir. 2002) (rejecting the view that the word “activities,” as used
in a conference report, necessarily indicated an intent to preclude the use of funds to reimburse administrative costs
common to both the funded program and other related programs); Grand Canyon Tour Coalition v. FAA, 154 F.3d 455,
467 (D.C. Cir. 1998) (noting Supreme Court precedents on the lack of weight to be given to the statements of a single
legislator, even if that legislator was the bill’s sponsor); id. at 474 (noting that parties with opposing interests in the
litigation had cited the same legislative history materials as supporting differing positions).
160
When Judge Garland does refer to “congressional purpose,” his understanding of that purpose would appear to be
based on the statutory text, not extrinsic considerations. See, e.g., Thompson, 281 F.3d at 255 (“There is no doubt that
Congress imposed a 15% cap in order to limit administrative expenditures; what other purpose could such a limit
have?”). In his dissenting opinion in Financial Planning Association, Judge Garland does note that his interpretation of
the statute in question would permit the statute to serve its purpose as to a population that did not exist when the statute
was enacted in 1940. Fin. Planning Ass’n. v. SEC, 482 F.3d 481, 500 (D.C. Cir. 2007) (Garland, J., dissenting).
However, he also viewed the statute in question in that case as ambiguous. See supra notes 142-148; infra notes 191200 and accompanying text.
161
See, e.g., United States v. Mead Corp., 533 U.S. 218, 257 (2001) (Scalia, J., dissenting) (“Chevron sets forth an
across-the-board presumption, which operates as a background rule of law against which Congress legislates:
Ambiguity means Congress intended agency discretion.”); Hon. Antonin Scalia, Judicial Deference to Administrative
Interpretations of Law, 1989 DUKE L.J. 511, 517 (1989) (similar).
162
See, e.g., Immigration & Naturalization Serv. (INS) v. Cardozo-Fonseca, 480 U.S. 421, 453 (1987) (Scalia, J.,
concurring) (“Since the Court quite rightly concludes that the INS’s interpretation is clearly inconsistent with the plain
meaning of that phrase and the structure of the Act, there is simply no need and thus no justification for a discussion of
whether the interpretation is entitled to deference.”) (internal citations omitted); Hon. Antonin Scalia, The Rule of Law
as a Law of Rules, 56 U. CHI. L. REV. 1175, 1183 (1989) (“It is rare ... that even the most vague and general text cannot
be given some precise, principled content—and that is indeed the essence of the judicial craft.”).
163
Zedner v. United States, 547 U.S. 489, 511 (2006) (Scalia, J., concurring) (“[T]he use of legislative history is
illegitimate and ill advised in the interpretation of any statute—and especially a statute that is clear on its face....”).
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Supreme Court, appear to approach matters of statutory interpretation somewhat differently from
the man he would be succeeding, which could result in changes in the Court’s rulings on close
cases of statutory interpretation.
Administrative Law
A significant portion of the D.C. Circuit’s docket consists of administrative law cases, in part,
because Congress has vested the court with exclusive jurisdiction to hear challenges to a wide
variety of government actions.164 Broadly speaking, at least two key legal doctrines might be said
to inform administrative law cases. The first is whether a challenged agency action is suitable for
judicial review in the first place, including whether a plaintiff has standing to sue to obtain
judicial relief as a result of unauthorized agency conduct. The second is whether an agency’s
action comports with the law.165 An analysis of Judge Garland’s opinions in administrative law
cases that divided the D.C. Circuit reveals several trends that could provide insight into how he
might approach these matters if he were confirmed to the Supreme Court.166
Before considering the merits of a legal challenge to administrative action, a federal court often
must assess whether judicial review is available and appropriate in the first place—an assessment
that may be informed by constitutional,167 prudential,168 and statutory considerations affecting a
petitioner’s access to the courts.169 A court may be called upon to determine, for example, whether
a petitioner has standing or is the appropriate party to bring a lawsuit challenging agency
action;170 whether the petitioner has exhausted administrative remedies prior to seeking judicial
review;171 whether the challenge concerns matters that are ripe for judicial consideration;172 or
whether legal or factual developments have rendered the legal challenge moot.173
164
See supra note 39 (discussing the prominence of administration law cases on the docket of the D.C. Circuit).
Although beyond the scope of this report, another major issue might be judicial review of agency compliance with
the procedural requirements of the APA, 5 U.S.C. §§551 et seq.
166
See CRS Congressional Distribution Memorandum, Judge Merrick Garland, supra note 141.
167
The Constitution establishes that the judicial power of the federal courts extends to “Cases” and “Controversies.”
U.S. CONST. art. III, §2, cl. 1. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he core
component of standing is an essential and unchanging part of the case-or-controversy requirement of Article III.”);
United Pub. Workers of Am. (C.I.O.) v. Mitchell, 330 U.S. 75, 89 (1947) (“As is well known, the federal courts
established pursuant to Article III of the Constitution do not render advisory opinions. For adjudication of
constitutional issues, concrete legal issues, presented in actual cases, not abstractions are requisite.”) (internal
quotations and citations omitted).
168
See Bennett v. Spear, 520 U.S. 154, 162 (1997) (“In addition to the immutable requirements of Article III, the
federal judiciary has also adhered to a set of prudential principles that bear on the question of standing.”) (internal
citations and quotations omitted).
169
See, e.g., 5 U.S.C. §704 (providing for the availability of judicial review of administrative action under the APA
when such action is “final”).
170
See Bennett, 520 U.S. at 162 (“To satisfy the ‘case’ or ‘controversy’ requirement of Article III, which is the
‘irreducible constitutional minimum’ of standing, a plaintiff must, generally speaking, demonstrate that he has suffered
‘injury in fact,’ that the injury is ‘fairly traceable’ to the actions of the defendant, and that the injury will likely be
redressed by a favorable decision.”) (quoting Lujan, 504 U.S. at 560-61).
171
The requirement that a plaintiff exhaust administrative remedies before seeking judicial review of agency action is
commonly the result of a judicial doctrine premised on prudential concerns, but may also be statutorily required in
some circumstances. See generally Avocados Plus Inc. v. Veneman, 370 F.3d 1243, 1247-48 (D.C. Cir. 2004).
172
Consideration of whether a legal claim is ripe for review often involves both constitutional elements—namely,
whether a petitioner has alleged an imminent or impending injury-in-fact—as well as prudential concerns relating to
“the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Nat’l
Treasury Emps. Union v. United States, 101 F.3d 1423, 1427 (D.C. Cir. 1996) (quoting Abbott Labs. v. Gardner, 387
(continued...)
165
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While a judge’s assessment of these issues often depends upon the particular facts of the case
before the court, there are arguably some trends that can be identified in Judge Garland’s
jurisprudence. As an initial matter, Judge Garland has often sided with the majority on issues of
judicial access that were litigated before the D.C. Circuit. In most decisions in which the
appropriateness of judicial review of agency action was seriously contested, Judge Garland either
wrote or joined the majority opinion of the court,174 or authored or joined a separate opinion that
did not dispute the majority’s ultimate conclusion regarding whether judicial access was
available.175 Opinions authored by Judge Garland concerning petitioners’ ability to seek review of
administrative action tended to be written on behalf of unanimous circuit panels.176 In the
majority of these cases, Judge Garland concluded that the challenge was nonjusticiable because
the petitioner lacked standing; the asserted legal claim was unripe or moot; or some other issue
made judicial review inappropriate.177
(...continued)
U.S. 136, 149 (1967)).
173
For a general overview of the mootness doctrine and relevant exceptions thereto, see, generally, archived CRS
Report RS22599, Mootness: An Explanation of the Justiciability Doctrine, by (name redacted)
.
174
See, e.g., Ctr. for Sustainable Econ. v. Jewell, 779 F.3d 588, 596-99 (D.C. Cir. 2015) (Garland, J.) (holding that an
environmental advocacy group had associational standing to represent members affected by a lease program permitting
drilling in the Outer Continental Shelf); Cohen v. United States, 578 F.3d 1, 13 (D.C. Cir. 2009) (in majority opinion
joined by Judge Garland, concluding that the petitioners’ challenge to an Internal Revenue Service (IRS) refund
mechanism satisfied the requirements for ripeness), reh’g en banc granted in part, vacated in part, 599 F.3d 652 (D.C.
Cir. 2010); Devia v. NRC, 492 F.3d 421, 422 (D.C. Cir. 2007) (Garland, J.) (holding that a petition for review of an
NRC decision to grant a license that permitted construction of a spent nuclear fuel storage facility was prudentially
unripe); PPL Wallingford Energy LLC v. Fed. Energy Regulatory Comm’n (FERC), 419 F.3d 1194, 1200 (D.C. Cir.
2005) (Garland, J.) (holding that the petitioners had standing to challenge FERC’s rejection of agreements they had
reached to provide electric power to certain locations, but lacked standing to challenge the agency’s rejection of
agreements made by other energy providers); La. Envtl. Action Network v. EPA, 172 F.3d 65, 67-69 (D.C. Cir. 1999)
(in a majority opinion joined by Judge Garland, holding that an organization had prudential standing to challenge an
EPA regulation that would allow variances from normal treatment standards for excavated waste).
175
Citizens for Responsibility & Ethics in Wash. v. FEC, 475 F.3d 337, 341 (D.C. Cir. 2007) (Garland, J., concurring
in judgment) (in a case where the petitioner sought information on campaign contribution activity from a previous
presidential election, concurring with the majority’s dismissal of the case on standing grounds because there was “no
meaningful distinction” between the case and a prior D.C. Circuit case dismissed on standing grounds); Fin. Planning
Ass’n. v. SEC, 482 F.3d 481, 493 (D.C. Cir. 2007) (Garland, J., dissenting) (dissenting on the grounds that the agency
action was based on a reasonable interpretation of the governing statute in a case where the majority, after finding that
the petitioners had standing, ruled that the agency action was contrary to that statute); Am. Corn Growers Ass’n v.
EPA, 291 F.3d 1, 15 (D.C. Cir. 2002) (per curiam) (Garland, J., concurring in part and dissenting part) (dissenting
based on a disagreement with the majority’s characterization of the agency’s interpretation of the statute as
unreasonable in a case where the majority upheld certain aspects of a challenged agency action and struck down others,
while also finding some claims unripe for review).
176
See, e.g., People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. (USDA), 797 F.3d 1087, 1097
(D.C. Cir. 2015) (concluding that PETA had standing to sue the USDA for failure to promulgate bird-specific animal
welfare regulations under the Animal Welfare Act); Holistic Candlers & Consumers Ass’n v. FDA, 664 F.3d 940 (D.C.
Cir. 2014) (upholding the dismissal of a suit against the FDA by manufacturers of candles intended to remove ear wax,
who had sought to enjoin a possible FDA determination that the candles were unapproved medical devices, because the
warning letters sent to the manufacturers did not constitute “final agency action” subject to judicial review under the
APA). But see Util. Air Regulatory Grp. (UARG) v. EPA, 744 F.3d 741, 751 (D.C. Cir. 2014) (Kavanaugh, J.,
concurring) (concurring in full with the majority opinion authored by Judge Garland, but suggesting that the majority’s
characterization of the statute as constraining judicial review might not be in accordance with developments in
Supreme Court case law, despite being consistent with existing D.C. Circuit jurisprudence); Am. Bird Conservancy,
Inc. v. FCC, 516 F.3d 1027, 1035 (D.C. Cir. 2008) (per curiam) (Kavanaugh, J., dissenting) (disagreeing with the
majority’s view that the case was ripe for review in a panel decision in which Judge Garland was in the majority, but
the majority opinion was not credited to a particular author).
177
See, e.g., Holistic Candlers, 664 F.3d at 941-42 (upholding dismissal of a suit against the FDA by candle
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
On the other hand, in several cases, Judge Garland joined majority opinions where the court split
on the question of whether a challenge to agency action was properly before it, and in those cases,
he tended to be more permissive on matters of judicial access than his dissenting colleagues. In
such instances, the judges who did not join the controlling opinion typically characterized the
majority as having inappropriately allowed judicial recourse to a plaintiff who failed to satisfy the
requirements necessary for judicial review of their claims. 178
To the extent that Judge Garland’s rulings on the D.C. Circuit can be seen as taking a permissive
approach on issues of justiciability, including whether a party has standing to challenge
administrative action, it could signal a difference in approach from that taken by Justice Scalia,
who authored a number of Court opinions that served to restrict access to the courts for persons
seeking to challenge or compel administrative action.179 Because many recent Supreme Court
rulings concerning standing and related matters have been closely divided cases,180 Judge
(...continued)
manufacturers, because the warning letters sent to the manufacturers did not constitute “final agency action” subject to
judicial review under the APA); Conservation Force, Inc. v. Jewell, 733 F.3d 1200 (D.C. Cir. 2013) (dismissing various
claims raised against the Fish and Wildlife Service (FWS) regarding purported violations of the Endangered Species
Act on mootness and ripeness grounds); Chamber of Commerce v. EPA, 642 F.3d 192 (D.C. Cir. 2011) (in a challenge
brought by the Chamber of Commerce and an automobile dealership organization to an EPA decision to waive federal
preemption under the Clean Air Act (CAA) and allow California to adopt more stringent emission standards,
dismissing the claims on various grounds including lack of standing and mootness); Ranger Cellular v. FCC, 348 F.3d
1044 (D.C. Cir. 2003) (dismissing applicants’ challenge to the validity of FCC-issued cellular telephone licenses due to
lack of standing because a judicial ruling in the plaintiffs’ favor would not provide redress because it would result in an
open auction for licenses in which the applicants would almost certainly be outbid); Klamath Water Users Ass’n v.
FERC, 534 F.3d 735 (D.C. Cir. 2008) (dismissing a challenge by a water users association to review of FERC orders
concerning an electric utility’s license, when the association had not demonstrated that court action would likely
provide redress to its purported injuries); Grand Canyon Air Tour Coalition v. FAA, 154 F.3d 455 (D.C. Cir. 1998)
(deeming unripe for judicial review various claims raised in a challenge to an FAA final rule for the reduction of
aircraft noise from Grand Canyon sightseeing tours).
178
See, e.g., Ctr. for Sustainable Econ., 779 F.3d at 612-14 (Sentelle, J., dissenting) (disagreeing with the panel
majority’s finding that an environmental organization had standing to challenge the EPA permit process on behalf of
two affected members, and arguing that the organization had not satisfied the requirements previously recognized by
the D.C. Circuit as necessary for associational standing); Cohen v. United States, 578 F.3d. at 15-22 (Kavanaugh, J.,
dissenting in part) (disputing the panel majority’s conclusion that the petitioners could proceed in a judicial challenge
to an IRS refund mechanism on the grounds that the plaintiffs had failed to exhaust their administrative remedies, as
required by statute, and the case was unripe for review), accord Cohen v. United States, 650 F.3d 717 (D.C. Cir. 2011)
(en banc) (Kavanaugh, J., dissenting) (dissenting on similar grounds in en banc reconsideration of an earlier decision);
Animal Legal Def. Fund, Inc. v. Glickman, 154 F.3d 426, 442 (D.C. Cir. 1998) (en banc) (Sentelle, J., dissenting)
(arguing, in response to the majority opinion—which had found that the plaintiff challenging USDA regulations as
contrary to the Animal Welfare Act had standing on account of suffering an aesthetic injury based on viewing affected
animals in animal exhibitions—that “the majority significantly weakens existing requirements of constitutional
standing”). See also PETA, 797 F.3d at 1099 (Millett, J., dubitante) (acknowledging that the majority opinion, which
found that PETA had standing to bring suit against the USDA for failing to promulgate bird-specific animal welfare
regulations, was consistent with D.C. Circuit jurisprudence, but expressing concern that the ruling was “in grave
tension with Article III precedent and principles, such as the principle that an individual’s interest in having the law
property enforced against others is not, without more, a cognizable [] injury”).
179
See, e.g., Summers v. Earth Island Inst., 555 U.S. 488 (2009) (environmental organizations lacked standing to
challenge U.S. Forest Service regulations exempting small fire-rehabilitation and timber-salvage projects from the
notice, comment, and appeal process); Steel Co. v. Citizens for Better Env’t, 523 U.S. 83 (1998) (organization lacked
standing to employ the citizen suit provision of an environmental statute against a private party for violating reporting
requirements; the complaint alleged only past infractions and not a continuing violation or the likelihood of a future
violation, meaning that court-ordered injunctive relief would not redress the organization’s injuries). For a more
extensive discussion of Justice Scalia’s views on standing, see CRS Scalia report, supra note 9, at 7-10.
180
See generally Margaret McDonald, Summers v. Earth Island Institute: Overhauling the Injury-in-Fact Test for
Standing to Sue, 71 LA. L. REV. 1053, 1066 (2011) (cataloging the recent standing cases before the Supreme Court and
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Garland’s confirmation to the High Court could play a role in relaxing justiciability requirements
that are often the first hurdle to challenging agency action.
In considering Judge Garland’s approach to whether agency actions comport with the law—a
matter on which he wrote prior to becoming a federal judge181—two important standards of
review generally govern challenges to federal agency action under the APA and, thus, merit
particular examination: statutory review, and arbitrary and capricious review.
Under the APA, a reviewing court must set aside agency action that is “not in accordance with
law” or that is “in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right.”182 When reviewing challenges to an agency’s interpretation of a statute that it administers,
courts grant deference to the agency’s interpretation if Congress delegated to the agency authority
to “speak with the force of law,” and the relevant interpretation was “promulgated in the exercise
of that authority.”183 Pursuant to the framework established by the Supreme Court in Chevron,
U.S.A., Inc. v. Natural Resources Defense Council, Inc. (Chevron),184 a court evaluating a
challenge to an agency’s interpretation must, as a first step, determine whether the legislature “has
directly spoken to the precise question at issue.”185 If so, a court is required to give effect to
Congress’s intent, notwithstanding a contrary agency interpretation.186 However, if a statute is
silent or ambiguous on the matter, the second step in the Chevron analysis requires a court to
defer to a reasonable agency interpretation.187 Thus, a judicial finding of ambiguity is significant
because it means that agencies are not foreclosed from altering their interpretations in the future
in response to changed circumstances, whereas a finding that Congress clearly spoke to the issue
“displaces a conflicting agency construction.”188
With regard to Judge Garland’s approach toward review of an agency’s interpretation of law
under Chevron, in cases that divided the D.C. Circuit,189 Judge Garland often finds ambiguity in
the underlying statute, leading him to evaluate an agency’s regulation or rule through the more
deferential lens of step two of the Chevron analysis.190 Judge Garland’s dissenting opinion in
(...continued)
noting typical division among the Justices as to their outcome).
181
See Merrick B. Garland, Deregulation and Judicial Review, 98 HARV. L. REV. 505, 585 (1985) (examining the
evolution of administrative law in response to deregulation by executive agencies).
182
5 U.S.C. §706(2)(A), (C).
183
United States v. Mead Corp., 533 U.S. 218, 226-27, 229 (2001). In a series of cases, the Supreme Court has limited
Chevron’s applicability by introducing a threshold inquiry that looks at a multi-factor balancing test to determine
whether the two-step Chevron analysis is appropriate; see Barnhart v. Walton, 535 U.S. 212, 222 (2002); Christensen v.
Harris Cty., 529 U.S. 576, 587 (2000), often referred to as Chevron “step zero.” See Cass R. Sunstein, Chevron Step
Zero, 92 VA. L. REV. 187 (2006). One critical factor in determining Chevron’s applicability to a particular agency
interpretation is the formality of the agency procedures when issuing the operative interpretation. See Mead, 533 U.S.
at 226-27.
184
467 U.S. 837 (1984).
185
Id. at 842.
186
Id. at 842-43.
187
Id. at 843.
188
See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005) ( “Only a judicial
precedent holding that the statute unambiguously forecloses the agency’s interpretation, and therefore contains no gap
for the agency to fill, displaces a conflicting agency construction.”).
189
For purposes of this section, the term “divided court” refers to a case that prompted a concurrence or dissent. For a
defense of relying on such opinions, see CRS Congressional Distribution Memorandum, Judge Merrick Garland, supra
note 141 (discussing why cases with concurrences or dissents typically signal “closer” cases). See also supra note 29.
190
See CRS Congressional Distribution Memorandum, Judge Merrick Garland, supra note 141 (studying 21 cases in
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Financial Planning Association v. SEC is indicative of his approach in such cases.191 At issue in
that case was the Investment Advisers Act, which regulates the activity of “investment advisers,”
subject to six exceptions.192 One exception applies to “any broker or dealer whose performance of
such services is solely incidental to the conduct of his business ... and who receives no special
compensation therefor.”193 Another exempts “such other persons not within the intent of this
paragraph[], as the Commission may designate by rules and regulations or order.”194 The SEC
promulgated a rule under this second provision exempting broker-dealers who receive “special
compensation therefor.”195 The panel majority ruled that the SEC lacked authority to exempt
broker-dealers beyond the scope of the first exemption, reasoning that because broker-dealers
were addressed in the first exemption, they did not qualify as “other persons” for the purposes of
the second exemption.196 Writing in dissent, Judge Garland argued that the terms of the second
exemption were ambiguous and concluded that the agency interpretation was reasonable and
entitled to Chevron deference.197 He argued that the majority’s reasoning in finding the statute
unambiguous apparently relied on the statutory canon of expressio unius—the concept that the
mention of one thing excludes another—but that canon is, in Judge Garland’s view, inappropriate
in an administrative context where Congress has left an agency with discretion to interpret its
statutory authority.198 And, for Judge Garland, the canon is particularly inapt where Congress
expressly delegates authority to the agency to promulgate additional exceptions to a statute.199
Determining that the underlying statute in Financial Planning Association was ambiguous, Judge
Garland would have moved to step two of the Chevron analysis and found that the agency’s
interpretation was reasonable, in part, because the agency’s interpretation was intended to serve
the purposes of the statute for a group that did not exist when the statute was enacted in 1940.200
In divided cases where Judge Garland has ruled against an agency’s interpretation of a federal
statute, he has appeared to favor outcomes that could leave room for the agency to adopt more
formal interpretations in the future that, if enacted, would allow the agency’s legal position to
eventually prevail. In other words, when voting against an agency’s interpretation of the law,
Judge Garland has often found that the Chevron doctrine did not apply because the agency has
not spoken with the force of law.201 Because a finding that a statute is unambiguous effectively
eliminates an agency’s discretion to adopt a contrary interpretation in the future,202 his conclusion
that Chevron was inapplicable in a particular case left open the possibility that the agency could
later reinterpret the statute through a different procedure that could qualify for Chevron
(...continued)
which Judge Garland voted that raised Chevron issues, and finding that Judge Garland deferred to the agency in 16 of
these cases).
191
482 F.3d 481, 493 (2007). See supra “Statutory Interpretation.”
192
15 U.S.C. §§80b–3 to –6.
193
15 U.S.C. §80b-2(a)(11)(C).
194
15 U.S.C. §80b-2(a)(11)(F).
195
SEC, Certain Broker–Dealers Deemed Not to be Investment Advisers, 70 Fed. Reg. 20424 (April 19, 2005).
196
Fin. Planning, 482 F.3d at 487-93.
197
Id. at 501 (Garland, J., dissenting).
198
Id. at 495.
199
Id.
200
Id. at 500.
201
See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
202
See Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005).
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
deference.203 For example, in Sottera, Inc. v. Food & Drug Administration (FDA),204 Judge
Garland rejected the majority’s view that Supreme Court precedent foreclosed the FDA from
regulating e-cigarettes under the Federal Food, Drug and Cosmetic Act (FFDCA), and instead
concurred in the court’s judgment on the basis that the FDA had merely failed to put forth “an
authoritative agency interpretation” of the FFDCA warranting Chevron deference.205 In so doing,
Judge Garland argued that the agency could in the future submit a formal regulation interpreting
its authority to regulate e-cigarettes under the FFDCA, which would warrant more deference from
the judiciary.206 In this vein, even in cases where Judge Garland has rejected an agency’s
interpretation of a statute, the rationale for his vote typically has not wholly foreclosed agency
discretion on the underlying legal issue.207
In addition to statutory review cases, the other major basis for challenges to agency actions under
the APA is Section 706(2)(A) of the act, which authorizes reviewing courts to “hold unlawful and
set aside agency actions, findings, and conclusions found to be arbitrary, capricious, [or] an abuse
of discretion....”208 The Supreme Court has viewed this provision as requiring agencies to
“examine the relevant data and articulate a satisfactory explanation for [their] action including a
‘rational connection between the facts found and the choice made.’”209 “In reviewing that
explanation, [the court] must consider whether the decision was based on a consideration of the
relevant factors and whether there has been a clear error of judgment.”210 Generally, arbitrary and
capricious review is “highly deferential” to the agency,211 as “a court is not to substitute its
judgment for that of the agency.”212
Judge Garland’s record in applying the APA’s arbitrary and capricious standard of review appears
more mixed relative to his jurisprudence in statutory review cases.213 The arbitrary-and203
Id. See supra “Statutory Interpretation.”
627 F.3d 891 (D.C. Cir. 2010).
205
Id. at 904 (Garland, J., concurring).
206
Id.
207
See, e.g., Miller v. Clinton, 687 F.3d 1332, 1335, 1341-42 (D.C. Cir. 2012) (ruling that, notwithstanding language
potentially favorable to the agency in the Basic Authorities Act, the Age Discrimination in Employment Act applied to
State Department employees overseas, in part, because the department’s view to the contrary had been articulated in a
contract between the department and a private party and thus lacked the formality to suggest that it possessed the force
of law); Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 2012) (Edwards, J., joined by Garland & Williams, JJ.) (joining a
majority opinion that refused to defer broadly to the State Department’s interpretation of a section of the Immigration
and Nationality Act because that interpretation was rendered in an informal decision letter rather than in a manner
“clearly intended to have general applicability and the force of law”).
208
See 5 U.S.C. §706(2)(A).
209
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting
Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). The Court explained that a decision will be
arbitrary if “the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.” Id.
at 43. The doctrine is often referred to as “hard look” review. Thomas J. Miles & Cass R. Sunstein, The Real World of
Arbitrariness Review, 75 U. CHI. L. REV. 761, 763 (2008) (“In its seminal decision in Motor Vehicle Manufacturers
Association v. State Farm Auto Mutual Insurance Co., the Court entrenched hard look review and clarified its
foundations.”).
210
See State Farm, 463 U.S. at 43.
211
TC Ravenswood, LLC v. FERC, 741 F.3d 112, 118 (D.C. Cir. 2013); see also Nat’l Tel. Coop. Ass’n v. FCC, 563
F.3d 536, 541 (D.C. Cir. 2009) (cataloging the “many times” when the D.C. Circuit has noted the “highly deferential”
nature of arbitrary and capricious review).
212
See State Farm, 463 U.S. at 43.
213
See CRS Congressional Distribution Memorandum, Judge Merrick Garland, supra note 141.
204
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
capricious-review cases where Judge Garland has deferred to an agency’s decisionmaking under
the standard set forth in Section 706(2)(A) of the APA have tended to involve challenges to
agency action on highly technical matters, particularly in environmental law.214 Judge Garland’s
views in such cases may have been motivated by a reluctance for courts to second-guess the
expert views of agencies that have been charged by Congress with administering a statute. For
example, in Americans for Safe Access v. Drug Enforcement Administration (DEA), he voted with
the majority to uphold the DEA’s decision not to initiate procedures to reclassify marijuana to a
less restrictive schedule under the Controlled Substances Act.215 The plaintiffs in that case
challenged the DEA’s conclusion that marijuana lacked a “currently accepted medical use,” in
part because there were not “adequate and well-controlled studies” proving marijuana’s medical
efficacy.216 In oral arguments in that case, with regard to the agency’s conclusion that such studies
did not exist, Judge Garland asked: “Don’t we have to defer to the agency ... we’re not scientists,
they are.”217 These comments perhaps demonstrate a view that administrative agencies are better
equipped to make such decisions than the courts. Likewise, in an analogous but distinct context
from arbitrary and capricious review, in the case of In re Aiken County, Judge Garland dissented
from the panel majority’s decision issuing a writ of mandamus ordering the Nuclear Regulatory
Commission (NRC) to resume the processing of a Department of Energy (DOE) application for a
license to store nuclear waste at Yucca Mountain in Nevada.218 Judge Garland’s dissent argued
that the majority opinion functionally ordered an agency to “do a useless thing,”219 as the NRC
had stopped the application proceeding because it did not have sufficient appropriated funds to
complete the project, and Congress had, at the agency’s request, appropriated only enough money
to shut down the agency’s licensing activity.220 For Judge Garland, the agency simply lacked the
funds to complete the application process, and the court was inappropriately questioning the
agency’s view that it simply could not “make any meaningful progress” with the funds it
currently possessed.221
In other cases, however, Judge Garland has voted to invalidate agency actions or remand cases to
the agency for a more developed explanation of its policy choice.222 For instance, in Alpharma,
214
See infra “Environmental Law.” See, e.g., Grand Canyon Air Tour Coal. v. FAA, 154 F.3d 459-60 (D.C. Cir. 1998)
(Garland, J.) (“We ... uphold the rule ... not because we necessarily believe the rule is ‘just right,’ but because we defer
to the agency’s reasonable exercise of its judgment and technical expertise....”).
215
706 F.3d 438, 452 (D.C. Cir. 2013).
216
Id. at 450 (internal quotations omitted). See 21 U.S.C. §812(b)(3)-(5); Drug Enf’t Admin. (DEA), Denial of Petition
to Initiate Proceedings to Reschedule Marijuana, 76 Fed. Reg. 40552 (July 8, 2011).
217
Transcript of Oral Argument, Americans for Safe Access v. DEA, 706 F.3d 438 (D.C. Cir. 2013),
https://www.cadc.uscourts.gov/recordings/recordings2013.nsf/8D0A87D269BCD0C285257BC90058DF5D/$file/
10161211-1265.mp3/ (“Don’t we have to defer to the agency, defer doesn’t mean they win, but defer in the sense of ...
we’re not scientists, they are, to the definition of what is an adequate and well-controlled study.”).
218
725 F.3d 255, 257 (D.C. Cir. 2013). For background and analysis on other issues raised with regards to Yucca
Mountain, see CRS Report R44151, Yucca Mountain: Legal Developments Relating to the Designated Nuclear Waste
Repository, by (name redacted) and (name redacted) .
219
In re Aiken Cty., 725 F.3d at 268-69 (Garland, J., dissenting).
220
Id. at 269.
221
Id.
222
Del. Dep’t. of Nat. Res. & Envtl. Control v. EPA, 785 F.3d 1, 10-19 (2015) (panel holding that the EPA acted
arbitrarily and capriciously when it modified CAA rules allowing backup generators to operate without emissions
controls for up to 100 hours per year as part of an emergency demand-response program); Fox v. Clinton, 684 F.3d 67,
80 (D.C. Cir. 2012) (panel finding that because “the Department failed to provide any coherent explanation for its
decision regarding the applicability of Section 1, the agency’s action was arbitrary and capricious for want of reasoned
decisionmaking”); Int’l Union, United Mine Workers of Am. (UMWA) v. Mine Safety & Health Admin., 626 F.3d 84,
93 (D.C. Cir. 2010) (panel finding that “[t]he training provision is nonetheless arbitrary and capricious because, as the
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
Inc. v. Leavitt, Judge Garland wrote for the majority in remanding a matter to the FDA so that the
agency could provide a fuller explanation of its reasoning in making the decision to approve a
new animal drug application.223 In particular, Judge Garland’s majority opinion found that the
agency’s response to a previous remand order by the D.C. Circuit raised new concerns, as the
FDA made, in the majority’s view, contradictory assertions that prevented the court from
concluding that the agency’s decision was reasonable.224 Nonetheless, while Alpharma
demonstrates that Judge Garland has at times exhibited skepticism in reviewing agency action in
the context of arbitrary and capricious review, no discernible trend appears in such cases akin to
how he approaches the review of agency interpretations of statutes.
To the extent that Judge Garland’s approach to administrative law would afford agencies
flexibility in interpreting statutes that are found to be ambiguous, 225 his approach arguably
contrasts with that of Justice Scalia, who readily acknowledged that his textualist approach to
statutory interpretation made it less likely that the “triggering requirement for Chevron deference”
would be found.226 In this sense, Judge Garland’s confirmation to the Supreme Court could result
in significant changes to the Court’s approach to the jurisprudence on administrative law.
Capital Punishment
Judge Garland’s views on capital punishment may be particularly important insofar as he would,
if confirmed, be replacing Justice Scalia, who believed the death penalty was fully consistent with
the Eighth Amendment,227 and two Justices currently on the Court openly have argued that the
(...continued)
UMWA contends, it defies the expert record evidence and is unexplained”); Am. Farm Bureau Fed’n v. EPA, 559 F.3d
512, 524 (D.C. Cir. 2009) (concluding that the EPA failed reasonably to explain why it believes its standard will
provide an appropriate degree of protection from the health effects of short-term exposure to particulate matter); Dep’t
of State v. Coombs, 482 F.3d 577, 581 (D.C. Cir. 2007) (panel finding that “[t]he Board does not appear to have even
considered whether it is reasonable to require reinstatement of such an employee, in light of the demands of the Foreign
Service. We think such an omission makes the Board’s decision arbitrary and capricious”).
223
460 F.3d 1, 9-12 (D.C. Cir. 2006).
224
Id. at 9. In particular, the Alpharma court found that the agency’s choice of the appropriate dosage used in its study
contradicted agency statements that a bioequivalence study must use the highest approved dosage. Id. at 10. In addition,
in the view of the majority, the agency failed to explain why its choice of dosage was appropriate. Id. at 11.
225
See supra “Statutory Interpretation.”
226
See Scalia, Judicial Deference to Administrative Interpretations, supra note 161, at 521 (“One who finds more often
(as I do) that the meaning of a statute is apparent from its text and from its relationship with other laws, thereby finds
less often that the triggering requirement for Chevron deference exists. It is thus relatively rare that Chevron will
require me to accept an interpretation which, though reasonable, I would not personally adopt.”) (emphasis in original).
This is not to imply that Justice Scalia was necessarily less likely to defer to agencies when he did find statutory
ambiguity, or skeptical of affording deference to agency decisions. See Thomas W. Merrill, Textualism and the Future
of the Chevron Doctrine, 72 WASH. U. L. Q. 351, 353 (1994) (“Although Chevron itself was decided before Justice
Scalia joined the Court, he has long been perceived as the Court’s most enthusiastic partisan of the two-step method
associated with the decision.”); Michael Herz, Textualism and Taboo: Interpretation and Deference for Justice Scalia,
12 CARDOZO L. REV. 1663, 1663 (1991) (“Justice Scalia is a fierce, sometimes strident defender of Chevron.”). But see
Perez v. Mortg. Bankers Ass’n, --- U.S. ---, 135 S. Ct. 1199, 1211 (2015) (Scalia, J., concurring) (“Heedless of the
original design of the APA, we have developed an elaborate law of deference to agencies’ interpretations of statutes
and regulations.”).
227
See, e.g., Baze v. Rees, 553 U.S. 35, 87 (2008) (Scalia, J., concurring in judgment) (“This conclusion [that the death
penalty violates the Eight Amendment] is insupportable as an interpretation of the Constitution, which generally leaves
it to democratically elected legislatures rather than courts to decide what makes significant contribution to social or
public purposes.”); Ring v. Arizona, 536 U.S. 584, 610 (2002) (Scalia, J., concurring) (“What compelled Arizona (and
many other states) to specify particular ‘aggravating factors’ that must be found before the death penalty can be
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Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
practice is unconstitutional.228 However, Judge Garland does not appear to have had occasion to
address directly the subject of capital punishment during his tenure on the D.C. Circuit since the
District of Columbia does not provide for the imposition of the death penalty,229 and federal death
penalty cases are not confined to the D.C. Circuit,230 as certain administrative law and
environmental law cases are.231 Prior to his appointment to the D.C. Circuit, Judge Garland was a
prosecutor and handled cases wherein the government sought the death penalty, most notably
against Oklahoma City bomber Timothy McVeigh.232 In addition, Judge Garland also stated, in
response to questioning at the 1995 hearing on his original nomination to the D.C. Circuit, that
“as a personal matter,” he viewed capital punishment as “settled law now. The Court has held that
capital punishment is constitutional and lower courts are to follow that rule.”233 Based on only
these isolated statements, with no judicial record interpreting the Eighth Amendment generally or
the death penalty specifically, it is difficult to make any firm predictions about how Judge
Garland might vote were he appointed to the High Court.
Civil Liability
One major area where Judge Garland could be quite influential, if he were to be confirmed to the
Supreme Court, involves the limits that federal law imposes procedurally and substantively on
civil defendants’ exposure to monetary liability, particularly in the context of lawsuits resulting
from allegedly faulty products, discriminatory practices, or fraudulent activities.234 This is
because Justice Scalia, whom Judge Garland could succeed on the Supreme Court, cast critical
votes in several closely contested cases that read federal law relatively expansively to restrict
plaintiffs’ ability both to use (1) procedural vehicles, such as class action litigation, to facilitate
civil recoveries,235 and (2) substantive state law, including common law tort actions, to sue
businesses that may have harmed them.236 In other cases, Justice Scalia cast important votes more
(...continued)
imposed was the line of this Court’s cases beginning with Furman v. Georgia. In my view, that line of decisions had no
proper foundation in the Constitution.”). For further discussion of Justice Scalia’s jurisprudence on capital punishment,
see CRS Scalia report, supra note 9, at 10-12.
228
Glossip v. Gross, --- U.S. ---, 135 S. Ct. 2726, 2776-77 (2015) (Breyer, J., dissenting). Justice Ginsburg joined in
Justice Breyer’s dissent in Glossip. Previously, certain other Justices on the Court shared similar views. See, e.g., Baze,
553 U.S. at 86 (Stevens, J., concurring) (“I have relied on my own experience in reaching the conclusion that the
imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions
to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive
and cruel and unusual punishment violative of the Eighth Amendment.’”) (quoting Furman v. Georgia, 408 U.S. 238,
312 (1972)).
229
See, e.g., District of Columbia: General Information, DEATH PENALTY INFO. CENTER, (2016),
http://www.deathpenaltyinfo.org/district-columbia.
230
18 U.S.C. §3235 (“The trial of offenses punishable with death shall be had in the county where the offense was
committed, where that can be done without great inconvenience.”).
231
See generally supra “Administrative Law” and infra “Environmental Law.”
232
See, e.g., Confirmation Hearings on Federal Appointments, supra note 5, at 1062 (1995) (Judge Garland noting his
prior work as a prosecutor in death penalty cases in the 1995 hearing on his nomination). He did not specify which
cases were involved, but Oklahoma City bomber Timothy McVeigh was executed. See, e.g., Defiant McVeigh Dies in
Silence, BBC NEWS (June 11, 2001), http://news.bbc.co.uk/2/hi/1382602.stm.
233
Confirmation Hearings on Federal Appointments, supra note 5, at 1062.
234
See CRS Scalia report, supra note 9, at 12-15.
235
See, e.g., Comcast Corp. v. Behrend, --- U.S. ---, 133 S. Ct. 1426 (2013); Wal-Mart v. Dukes, 564 U.S. 338 (2011);
AT&T Mobility v. Concepcion, 563 U.S. 333 (2011).
236
See, e.g., Mut. Pharm. v. Bartlett, --- U.S. ---, 133 S. Ct. 2466, 2480 (2013); PLIVA, Inc. v. Mensing, 564 U.S. 604,
(continued...)
Congressional Research Service
31
Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court
narrowly interpreting the scope of federal law to limit corporate defendants’ potential civil
liability.237 Given Justice Scalia’s decisions, commentators have debated how Judge Garland
might affect the Roberts Court’s perceived “warmth” toward businesses on civil liability matters
if he were to be confirmed to the Court.238 Some have suggested that the nominee’s tendency to
defer to executive agencies could make him less apt to use judicial power to interfere with
marketplace externalities,239 while others contend that Judge Garland’s record, particularly on
labor law matters,240 would make him more hostile toward business interests and more likely to
side with the plaintiffs’ bar in interpreting federal law.241
While certain predictions could perhaps be made with regard to how Judge Garland might rule on
civil liability matters based on his votes in other areas of law, like labor law, the docket of the
D.C. Circuit—which tends to have a considerable number of administrative law disputes and
relatively “few explicit business cases”242—makes it difficult to predict confidently how he might
rule if he were to be elevated to the High Court. Indeed, there are very few cases in which he has
ruled directly on matters of civil liability akin to those matters on which Justice Scalia was so
influential. Moreover, many of the rulings that Judge Garland has made on civil liability matters
have been unanimous ones, joined by judges of differing philosophies and backgrounds,243 which
presumably signals that precedent was seen to have largely dictated the result in such cases.244 For
example, Judge Garland joined majority decisions twice in 2013 that took the relatively unusual
step of vacating class action certifications on interlocutory appeal, “command[ing],” in one case,
a lower court to take a “hard look at the soundness of [the] statistical models” that formed the
basis for class certification.245 Nonetheless, a year later, Judge Garland joined a majority decision
written by Judge Douglas Ginsburg that denied a petition to vacate a class certification order
(...continued)
606 (2011); Bruesewitz v. Wyeth LLC, 562 U.S. 223, 232 (2011).
237
See, e.g., Janus Capital Grp., Inc. v. First Derivative Traders, 564 U.S. 135 (2011); Schindler Elevator Corp. v.
United States ex rel. Kirk, 563 U.S. 401 (2011).
238
See, e.g., Lee Epstein, William M. Landes, & Hon. Richard A. Posner, How Business Fares in the Supreme Court,
97 MINN. L. REV. 1431, 1472 (2013) (“Whether measured by decisions or Justices’ votes, a plunge in warmth toward
business during the 1960s (the heyday of the Warren Court) was quickly reversed; and the Roberts Court is much
friendlier to business than either the Burger or Rehnquist Courts, which preceded it, were.”).
239
See James B. Stewart, On Business Issues,
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