Peering Into Merrick Garland

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If there’s one thing that can be said about the current Supreme Court vacancy, it is that it will not likely be filled anytime soon.  Judge Garland has sat on the D.C. Circuit Court of Appeals since 1997 and has been the Chief Judge on the Circuit since 2013.  With the benefit of time and the ever present possibility of eventual confirmation hearings, there is a lot to learn about Judge Merrick Garland.    On that note I have compiled a database of all of the opinions Garland has written, both majority and separate, along with bits of information pertaining to each case which can be found here (this is still an evolving project):

Garland Case Database

This post looks at some of the statistics from that data and helps give a sense of Judge Garland’s presence and impact on the D.C. Circuit.  Previous articles and studies from the National Law Journal, the NAACP LDF, the New York Times, and the Merrick Garland Project from NYU deeply scrutinize some Garland’s most significant cases and decisions while on the Circuit.  This post focuses on the who, what, and when questions surrounding Garland’s tenure as a circuit judge.

The figure above is a network map of cases where Garland wrote majority opinions.  It measures the number of times other judges sat on the panels with Garland when Garland was the opinion author.  The proximity of Garland to the other judges and the thickness of the line between them are both indicators of the strength of these relationships.   Clearly Judge Garland sat on many panels with Judges Sentelle (67 where Garland was the author) and Judge Henderson (71 where Garland was the author).  Garland, however, only wrote seven opinions with the other potential Supreme Court nominee Sri Srinivasan and eight opinions with current Supreme Court Chief Justice John Roberts.

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Judge Garland worked with a range of judges on the D.C. Circuit and the few instances of dissents from his opinions (discussed in more detail below) can be seen both as a testament to his ability to work with his colleagues and to write opinions that incorporate perspectives aside from his own.

Next I look to Judge Garland’s workload.  Like most new or elevated judges, Garland started out with few opinions, but quickly ramped up to writing over twenty majority opinions a year during the early 2000’s.  This number stabilized to less than twenty for 2009 and each year following.  There has been a dip in recent years to fewer than fifteen opinions in 2015.  Clearly Judge Garland is not as regular a participant on D.C. Circuit Court panels as he was previously, and this is not likely to change as long as his nomination is up in the air.

Opinions

Since current information on Judge Garland’s rulings becomes increasingly sparse as he writes fewer opinions, we have to look back through his record to gain greater comprehension on the cases he has presided over.  The next figure looks at the repeat parties in cases where Garland wrote the majority opinions.

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As others have previously noted, Garland’s record as majority author tends towards cases with government entities.  The United States is by far the most regular participant before Garland, as a party in nearly one-hundred cases where he was the opinion author.  This is followed by several federal agencies and the District of Columbia.  After the EPA, the number of times repeat players appeared in cases where Garland wrote majority opinions tapers off significantly as most of the groups towards the bottom have had two such cases.  Interestingly, Public Citizen, Inc. and United Airlines are the only two non-governmental repeat entities in this figure.

With a Westlaw search I next generated a list of case types where Judge Garland wrote the majority opinion.  These types are not mutually exclusive – that is more than one may be coded per case.

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This figure shows the diversity as well as uniformity of the cases before Judge Garland.  While he wrote opinions in a number of employment cases and health practitioner related cases, he was also the author of a number of opinions in areas ranging from environmental law to property and construction law.  Obviously the more general issue areas of civil and criminal law pervaded these cases.

The next figure looks at how Judge Garland ruled in the cases where he was the opinion author.

Rulings

Judge Garland affirmed the judgment below in 207 cases or almost three-quarters of the cases Garland wrote opinions (whether the cases came from the District Court of D.C. or from a federal agency).  He reversed a much smaller number of cases, only 30, which increases to 38 with those reversed and remanded added-in.

As I stated earlier, Judge Garland has by and large acted as a force of unity on the D.C. Court of Appeals.  Only a handful of judges wrote separate opinions (concurrences, dissents, or combinations) related to Garland’s majority opinions.

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Five judges, Judges Henderson, Kavanaugh, Rogers, Sentelle, and Williams each wrote three separate opinions, while the total number of separate opinions when Garland was the majority author equals twenty.  Over nineteen years and 329 opinions, twenty separate opinions presents a strong sign of consensus when Judge Garland was the majority author. Aaron Nielson  provides nice coverage of Garland’s opinions leading to dissents.

Garland also wrote separate opinions in a number (albeit a small one) of cases over the years.  The total number of separate opinions Garland authored is 27.  Neilson also has an article looking at these decisions.

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Four of Garland’s separate opinions were from per curiam decisions while he wrote three when each of Judges Ginsburg, Williams, and Silberman were majority authors.

All in all Judge Garland was not and is not a booming voice of dissension on the D.C. Court. He appears to inspire consensus in his colleagues and to have judicial experience in a wide range of issues.  For those interested in learning more about Garland’s decisions, I highly recommend taking a look at the Garland Case Database also linked above.  This will give you a chance to vet the nominee for yourself which may be especially important since historically confirmation hearings are seldom effective at this job.


On Twitter: @AdamSFeldman

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