Garland-Scalia Contrasts Feature in CRS Report

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By Patrick Gregory

May 11 — U.S. Supreme Court nominee Judge Merrick Garland's biggest impact on the court could be in administrative law if confirmed, according to a recent Congressional Research Service report.

The CRS report highlighted contrasts between Garland and Supreme Court Justice Antonin Scalia, who unexpectedly passed away in February. President Barack Obama nominated Garland for the vacancy on March 16 (84 U.S.L.W. 1333, 3/17/16).

Significant differences are apparent between Scalia and Garland on a variety of issues, the April 27 report said.

However, the report acknowledges that attempting to predict Garland's potential impact on the court based on his past record “is a task fraught with uncertainty.”

The study, “Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court,” analyzes Garland's record at the U.S. Court of Appeals for the D.C. Circuit.

The CRS is an agency within the Library of Congress that provides policy and legal analysis to Congress.

Administrative Law

Elevation of Garland “could result in significant changes to” the high court's approach to administrative law in two ways.

First, Garland's confirmation could result in more challenges to agency action relative to Scalia.

That's because Garland's rulings “can be seen as taking a permissive approach on issues of justiciability” such as party standing, the report said.

In contrast, Scalia “authored a number of” opinions restricting court access for those “seeking to challenge or compel administrative action.”

Second, Garland is more likely to find statutory text ambiguous than Scalia was, the report said.

When a court finds a statute to be ambiguous, it results in a more deferential review of agency action under Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984).

Garland has been relatively friendly to agencies even when rejecting their statutory interpretations, the report said.

In such cases, “the rationale for his vote typically has not wholly foreclosed agency discretion on the underlying legal issue.”

Role of Judiciary

Garland's opinions show he is generally skeptical “of judicial interference with the work of the political branches” for practical reasons, the report said.

That skepticism “could contrast with Justice Scalia's formalism.”

Moreover, Scalia's “often-strict adherence to” originalism often resulted in broad opinions unsupported by a majority of the court, the report said.

In contrast, Garland has shown an “ability to garner unanimous opinions” on controversial issues such as campaign finance regulation.

Garland's relatively infrequent dissents may indicate that he values collegiality, while Scalia's opinions “could be quite pointed and acerbic in style,” the report said.

Statutory Interpretation

Garland differs from Scalia in his “resort to legislative history” in interpreting statutes, the report said.

Confirmation of Garland could therefore “result in changes in the Court's rulings on close cases of statutory interpretation.”

But the two are similar in that their decisions focus on “how people would normally understand” statutory language, the report said.

Free Speech

Garland's rulings on public employee speech and commercial speech could signal a departure from Supreme Court decisions that Scalia joined, the report said.

The high court has tended to favor “the authority of the government over the rights of employees” in public employee speech disputes.

But Garland has sided with public employees in several cases involving alleged employer retaliation against employee speech, the report said.

On commercial speech, the Supreme Court has “struck down state and federal regulations on the marketing of certain products in recent years.”

In contrast, Garland has joined decisions “affirming the Federal Trade Commission's authority to prohibit” misleading commercial speech, the report said.

Second Amendment

The report notes a debate among commentators on Garland's approach to the Second Amendment, with some saying he's the “most anti-gun nominee in recent history,” and others seeing a lack of evidence concerning his Second Amendment philosophy.

Garland has written no judicial opinions directly addressing the Second Amendment, and has cast votes in only a few cases that do, the report said.

He dissented from the D.C. Circuit's denial of en banc review of a decision finding that the District of Columbia's gun restrictions were unconstitutional in Parker v. District of Columbia, 478 F.3d 370 (D.C. Cir. 2007).

In contrast, a decision by Scalia affirmed that decision in District of Columbia v. Heller, 554 U.S. 570 (2008).

But Garland's few votes in Second Amendment disputes “would seem a tenuous basis for any firm conclusions” concerning Garland's approach to firearms restrictions, the report said.

Substantive Due Process

The few substantive due process cases in which Garland has cast a vote “suggest an arguably moderate view” of the doctrine's scope, the report said.

Very “little is known” concerning how Garland might approach substantive due process issues such as abortion, the report said.

But Garland “seems to have a broader view of the doctrine than the man whom he could succeed.”

Garland voted with the en banc majority finding that the due process clause didn't include a “right for the terminally ill to access experimental drugs,” in Abigail All. for Better Access to Developmental Drugs v. Von Eschenbach, 495 F.3d 695 (D.C. Cir. 2007) (en banc).

But unlike Scalia, “who openly questioned the substantive due process doctrine,” Garland doesn't seem “to have rejected the concept wholly.”

Garland declined to join a concurrence describing substantive due process as a Supreme Court “invention” with “unstable boundaries,” in Lightfoot v. District of Columbia, 448 F.3d 392 (D.C. Cir. 2006).

Further, he joined a decision finding that substantive due process can “impose affirmative duties to act on state officials” who “render citizens more vulnerable to harm,” in Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001), the report said.

To contact the reporter on this story: Patrick L. Gregory in Washington at

To contact the editor responsible for this story: Jessie Kokrda Kamens at

For More Information

Full text of the CRS report available at