What happened when Merrick Garland wrote for himself

|The Volokh Conspiracy |

While it's unclear whether the Senate will consider the nomination of Judge Merrick Garland to the Supreme Court, analysts and pundits are poring over his record in order to figure out what sort of justice a Justice Garland would be. My initial thoughts on the question are here.

The best way to get a handle on a circuit judge's judicial philosophy is to look at the judge's concurrences and dissents. When a judge writes alone, there is little need to accommodate others. The judge can say just what he or she thinks about the case. When a judge writes a panel majority, on the other hand, there is often a need to soften edges and bridge differences to accommodate the views of all those who sign on. Concurrences and dissents also reveal how and why a given judge disagrees with his or her colleagues. Judges rarely write separately without a good reason for doing so.

Identifying when and why a judge split with other judges who heard the same case is far more probative of the judge's underlying judicial philosophy than tallying up outcomes in unanimous decisions. In the U.S. Court of Appeals for the District of Columbia Circuit, for instance, government agencies typically prevail. So the fact that Garland votes to uphold agency decisions more often than not does not tell us very much. Were we to find that Garland voted to uphold agency decisions more than his colleagues, on the other hand, would be revealing.

Fortunately, in the case of Garland, Aaron Nielson has collected all the cases in which Garland wrote concurrences or dissents. In a subsequent post, Nielson has also collected those cases in which Garland was in the majority but another judge dissented. If one wants to get a handle on Garland, these are the cases one wants to look at.

Before looking at the substance of his solo opinions, it's worth noting that Garland does not dissent very often. In 19 years on the bench, Garland has only dissented 16 times. The D.C. Circuit is known for collegiality, but Garland dissents less than once a term. That's not very often. Note, also, that for most of that time, the D.C. Circuit had a reputation as a fairly conservative court, largely because there were significantly more Republican than Democratic nominees.

As for the cases in which Garland did dissent, a few things stand out. First, there are several cases in which Garland thought the panel majority was not sufficiently deferential to a federal regulatory agency's statutory interpretation or exercise of discretion, but no cases in which Garland dissented because he believed the panel was too deferential. Some of his concurrences appear to be motivated by similar concerns. For examples, see FedEx v. NLRB, Financial Planning Ass'n v. SEC, and American Corn Growers Ass'n v. EPA. It's also worth taking a peek at his dispute with Judge Brett M. Kavanaugh over the issuance of a writ of mandamus against the Nuclear Regulatory Commission in In re Aiken County.

Garland's opinions urging more deference to federal regulatory agencies suggest that a Justice Garland would likely be more deferential to agency decisions than was the justice he would replace. Justice Antonin Scalia was far more likely to reject an agency's statutory interpretation than Garland appears to have been on the D.C. Circuit. Scalia, unlike Garland, was also sympathetic to underlying claims about the need to limit federal regulatory authority. In two federalism-related cases in which Garland's majority prompted separate opinions from one or more colleagues—one concerning the application of the Commerce Clause (Rancho Viejo LLC v. Norton), another concerning the spending power (Barbour v. Washington Metro Area Transit Auth.) – Garland interpreted the relevant precedents narrowly and showed relatively little concern for the need to limit federal power.

Among Garland's dissents, there are also three cases in which he thought the panel majority was too solicitous of claims made by criminal defendants. As Garland was a former prosecutor, this may be what one would expect (but see Justice Sonia Sotomayor), Garland certainly has a reputation as a prosecution-friendly judge. These opinions also suggest another way in which a Justice Garland would differ from Scalia.

As a conservative justice, Scalia was skeptical of many constitutional claims made by criminal defendants, but not always. Scalia liked bright-line rules, and he would not blink from enforcing those bright-line rules he believed could be found in the Constitution's text. Thus, while Scalia often voted to reject criminal defense claims, he also could be a criminal defendant's best friend on the court. In cases involving confrontation clause or jury right claims, Scalia was unyielding, refusing to countenance pragmatic deviations from explicit constitutional guarantees. In this regard, Scalia often disagreed with some of the other conservatives on the court, as the court would split on formalist-pragmatist grounds.

Based on his record in the D.C. Circuit, it seems a Justice Garland would be unlikely to replicate Scalia's defendant-friendly formalist streak. Rather, a Justice Garland seems more likely to read constitutional guarantees for criminal defendants more narrowly and accept pragmatic arguments that certain constitutionally guaranteed rights must be read flexibly, with an eye toward the practical consequences of given rules. This would likely make a Justice Garland closer to Justice Anthony Kennedy, Justice Stephen Breyer or even Justice Samuel Alito in criminal cases than to Scalia.

The above suggests that the differences between a Justice Garland and Scalia would extend beyond hot-button issues that tend to divide conservative and liberal justices. To be sure, past performance on a lower court is no guarantee of future performance on a final court of review, but the cases in which Garland differed with his peers are suggestive nonetheless.