What Might Merrick Garland Mean for State and Local Government?

By Lisa Soronen, State and Local Legal Center
As promised, President Obama has nominated someone to fill the vacancy on the Supreme Court. Obama announced on March 16 in the White House Rose Garden that he would nominate Chief Judge Merrick Garland of the D.C. Circuit Court to serve as the 113th Supreme Court justice.
During his announcement, Obama described Merrick as “widely recognized not only as one of America’s sharpest legal minds, but someone who brings to his work a spirit of decency, modesty, integrity, even-handedness and excellence. These qualities and his long commitment to public service have earned him the respect and admiration from leaders from both sides of the aisle.”
“At a time when our politics are so polarized, at a time when norms and customs of political rhetoric and courtesy and comity are so often treated like they’re disposable—this is precisely the time when we should play it straight, and treat the process of appointing a Supreme Court justice with the seriousness and care it deserves,” Obama went on to say. “Because our Supreme Court really is unique. It’s supposed to be above politics. It has to be. And it should stay that way.”
If this wasn’t an election year, Garland would be a surprising choice. He is known as a moderate, is older at age 63, a white male and has been a judge on the D.C. Circuit Court of Appeals for almost 20 years.
If it wasn’t an election year Senate Republicans would probably be racing to confirm him.
If Judge Garland becomes Justice Garland, how might he rule in cases affecting state and local government?  
State and local governments do not consistently benefit more from liberal or conservative justices. It depends on the issue and the case—and sometimes may not matter at all.  
Two other factors may give us a better sense of how he may view the interests of state and local government in cases. They are state and local government experience and previous decisions. 
The first factor is, unfortunately, irrelevant in the case of Judge Garland. Before his appointment to the D.C. Circuit Court of Appeals he worked for the federal government and a big law firm.
In 2010, Judge Garland was on Obama’s “short list” to replace Justice Stevens. Tom Goldstein, SCOTUSblog, reviewed Garland’s decisions in depth. His most notorious decisions, then and probably now, was a vote against Guantanamo detainees, subsequently overturned by the Supreme Court, and a vote to rehear a D.C. Circuit’s decision to invalidate the Washington, D.C., handgun ban.
More relevant to state and local governments, Goldstein concluded in 2010 that Garland has tended to take a “broader view” of First Amendment rights, which often will not favor state and local government. Goldstein also noted that Garland has “strong views favoring deference to agency decisionmakers,” which in many cases will not benefit state and local government.
As challenges to the Clean Power Plan and the Waters of the United States regulations work their way to the Supreme Court, Garland’s record on environmental issues is particularly relevant. Goldstein concluded that sometimes Judge Garland has favored the EPA and sometimes not but noted that in this area Judge Garland “has been most willing to disagree with agency action.”
As Judge Garland’s lengthy judicial record is sifted through more carefully over the next weeks or months, it will become clearer where he may stand generally and in regards to state and local government.
At this point the question bigger than “Who is Merrick Garland?” is whether he will be confirmed. Only time will tell…




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