How Might Merrick Garland Tip Cases at the Supreme Court?

The death of Justice Antonin Scalia on February 13 left a vacancy on the Supreme Court that has yet to be filled. Without a ninth justice, the Supreme Court has turned out two 4-4 split decisions so far, and is accepting fewer new cases than usual in an apparent bid to avoid deadlocking the court before Justice Scalia’s former seat is filled.

On March 16, President Obama nominated the Chief Judge of the U.S. Court of Appeals for the D.C. Circuit, Merrick Garland, to fill the vacant Supreme Court seat.

While the Senate was on a two-week recess, campaigning for and against Judge Garland’s confirmation ramped up, with advertisements and editorials appearing in radio, television and print, particularly in states facing contested Senate races. While two Republican Senators have met with Judge Garland so far, the majority of the Senate has extended a chilly reception. Senator Mitch McConnell, the majority leader, has reaffirmed that he will not support any nomination put forward by President Obama, stating: “The American people may well elect a president who decides to nominate Judge Garland for Senate consideration. The next president may also nominate someone very different. Either way, our view is this: Give the people a voice in the filling of this vacancy.” However, a handful of Republican senators have expressed some openness toward holding confirmation hearings during the “lame duck” period of President Obama’s final year in office, when the presidential election is over but the new president has not yet been sworn in.

If Judge Garland were to be confirmed by the Senate, it is difficult to forecast how his presence might affect the Supreme Court’s future decisions. Judge Garland’s time on the D.C. Circuit Court has produced many technically proficient and even-toned opinions about the issues that are most often presented to that court: government, campaign finance, military proceedings and other cases related to the nation’s capital. However, the D.C. Circuit rarely hears cases about issues that fire voters and employers up, like the Affordable Care Act, health care, insurance, unionization and affirmative action. His record on the D.C. Circuit offers a few clues. In past decisions, Judge Garland has shown deference to executive agencies, and that deference might extend to the Department of Health and Human Services when it comes to cases involving the Affordable Care Act. He has also tended to side with labor unions, upholding findings by the National Labor Relations Board in 18 out of 22 majority opinions. If Judge Garland is eventually confirmed to the Supreme Court—in 2016 or next year—his comments and questions during oral arguments may reveal more about his stances and offer a preview of how his vote may affect employers for years to come.

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