The CRS compares Merrick Garland with Justice Antonin Scalia
The Congressional Research Service has offered its insight to Congress about how Supreme Court nominee Merrick Garland might influence rulings differently than the late Antonin Scalia, if Garland is confirmed.
The three authors of a report called “Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court” see some differences between Scalia, the originalist, and Garland, currently the chief judge of the District of Columbia Circuit Court of Appeals. But with a lack of a record on Garland’s part on some key constitutional issues, the report says that any Scalia versus Garland comparisons were inconclusive at best.
Link: Read The Report
The three legislative attorneys looked at 14 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.”
In the role of the judiciary, Scalia openly supported two related concepts, originalism and textualism, which endorsed the idea that the Court’s decisions needed to accommodate ideas from legal texts in accordance with their ordinary meaning at the time of their drafting.
The CRS says that Garland isn’t the bold spokesman that Scalia was on constitutional theories. “Judge Garland has not articulated any overarching legal philosophy in a manner akin to Justice Scalia,” the report says, pointing to Garland’s “minimalist approach to judging.” The hallmarks of Garland’s opinions were a desire to build consensus.
On the issue of the Eighth Amendment and capital punishment, Scalia believed the full use of the death penalty was consistent with the Constitution. The CRS points out that Garland had “no judicial record interpreting the Eighth Amendment generally” since these types of cases weren’t handled by the D.C. Circuit Appeals Court. Likewise, Garland didn’t have much of a record on civil liability cases, which also mostly were outside of his D.C. court, or in related cases, where he took part in unanimous decisions.
And the CRS points out that in cases related to the Constitution and civil rights, “Judge Garland’s views on constitutional civil rights questions are generally unknown because he has not had occasion to address such questions directly in the cases before the D.C. Circuit.” Scalia was at the center of several big cases about gay rights and affirmative action.
On Free Speech, Garland did write for a unanimous appeals court in a ruling that said government contractors couldn’t make certain types of campaign contributions, rejecting a claim that the Supreme Court’s Citizens United decision permitted that. Garland also offered opinions that stressed the rights of journalists to protect their information and sources.
And on the issue of the Second Amendment and the right to bear arms, Scalia’s views were well-known. Garland didn’t author any opinions on the right to bear arms, but he did vote for his full appeals court to reconsider a decision that confirmed gun ownership rights in the District of Columbia. But Garland, the CRS says, wasn’t involved in a lot of Second Amendment cases. “These few cases would seem a tenuous basis for any firm conclusions as to Judge Garland’s approach to the Second Amendment and firearms restrictions if he were to be confirmed to the Supreme Court,” it says.
Garland also wasn’t involved in Fifth Amendment Takings cases, another area where Scalia played a prominent role.
In all, the CRS says, Garland is notable for the lack of Supreme Court review of his own written opinions. “Perhaps surprisingly for a jurist who has served on an important federal appellate court for nearly two decades, none of Judge Garland’s written opinions have even been reviewed in a formal opinion by the Supreme Court.”
Of the nine opinions that reached the Supreme Court in which Garland took part, five of the cases were affirmed or supported by the nine Justices. “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 heard—and perhaps indicates the cautious nature of Judge Garland’s jurisprudence.”
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