Diagnosing Justice Garland: Use the Correct Microscope
As surely as the sun rises in the east, the instant commentators on both the Left and Right made their public pronouncements of the political leanings of Judge Merrick Garland, President Obama’s choice to replace the late Justice Antonin Scalia on the Supreme Court within hours, if not minutes, of his name being leaked by the White House. By looking how he has ruled upon cases during his tenure on the D.C. Circuit Court, these analysts have pronounced him as definitively “anti-gun rights” or “pro environment” as if he was a politician making policy decisions rather than taking his judicial oath seriously and attempting to follow what the law, both statutory and previous judicial decisions, would require him to do. Of course in his role as a judge of court “inferior” to the US Supreme Court (one should not dismiss that the two courthouses are less than a mile apart either), his discretion to impose his extra legal value judgments upon the cases before him are much more limited than it would be were he to be confirmed as a Justice. Thus, looking at his previous decisions to determine how he would rule on a case were he to be elevated is a bit like making a medical diagnosis merely by taking a patient’s pulse. There is information in Judge Garland’s appellate rulings, it is true, but often the information is either obscured by other data, or is too incomplete to get a true measure of what a Justice Garland’s tenure would be like.
A markedly better way to measure a Justice’s future actions is to ignore the actual “hot button” political subject matter of the cases upon which he has ruled as a Circuit Court judge and instead delve into what seem to non-lawyers as obscure legal points but which permeate many of these cases. Issues such as how a judge views standing, that is who has the right to bring a law suit and what level of deference should be granted to an administrative agency’s decision making are more fruitful in gaining an accurate insight into what Garland’s tenure on the Court might be like than seeing how he ruled on a particular affirmative action or privacy dispute that landed on his docket. For example, while political columnists and talking heads shook their heads in disbelief that Chief Justice John Roberts authored the majority decision in King v. Birdwell [1] wondering how a so-called “conservative” jurist such as Roberts could uphold the expansion of the Federal government’s role in the nation’s health care system. What these political opinion leaders didn’t realize is that in this case, as much as in cases that seem more politically in keeping with the position of a “conservative” Justice, such as his dissent in the City of Arlington, Tx v. FCC, [2] where he opined against the actions of the FCC, is that his underlying rationale in both of his opinions has been based upon the same underlying meta-issue of reining in the recent tradition of judicial deference to the actions of an administrative agency. Thus, to get the sense of a Justice Garland’s jurisprudence it is best to look at this deeper level of legal analysis.
Fortunately, in looking at one of these issues, that of level of deference to an agency, the same one that animates Roberts’ decisions in the cases mentioned above, and thus an area which will become an important topic for the Court in the years ahead, Garland has not only issued opinions, but has written a scholarly article from which we can glean his unencumbered judicial philosophy. Indeed, extra-judicial writing is a much better place to see Garland’s mind at work. As noted previously, as a Circuit Court judge he has been constrained by previous Supreme Court opinions to which he must defer even if they go against his understanding of the law. No such constraints would be placed upon his scholarly work where the true measure of his judicial philosophy can be taken.
Garland, like Scalia, whose seat he would fill were he to be confirmed, has published on administrative law, and specifically addressed the issue of agency deference in his article, “Deregulation and Judicial Review” published in the Harvard Law Review.[3] In that 87-page article, Garland laid out his understanding of the role of “administrative agencies” and the level of deference that he believed the judiciary should grant those agencies.
Administrative agencies, such as the FCC, do not fit into the separation of powers scheme taught in high school civics textbooks. In fact, their hybrid nature as quasi legislatures/quasi courts/quasi executive branch departments runs directly contrary to the delicate balance of power that animates the structural U.S. Constitution. The notion of the administrative agency flows out of the conceit of progressives, such as President Woodrow Wilson, who prior to the White House was the president of Princeton University, that the actual business of governing was far too important to be left in the purview of democratically elected leaders but rather should be sheltered from politics and given instead to technocratic elites with specialized knowledge who would make decisions based upon an ideal of objective expertise.
In order to square this sequestering of power away from the people’s representatives, the agencies were viewed as acting as sort of “transmission belt” of the legislature, operating under the guidelines and parameters of the power the Congress, through legislation, granted them. To put it more plainly, the Congress would outline the drawing with broad strokes and the agencies were to follow those outlines and fill in the details. While most of these agencies fit within the Executive branch and thus maintained the three-part separation of powers, the Congress also established “independent” agencies that reside in a Constitutional no-where land. Unanswerable to the President or the Congress, these “alphabet agencies” such as the FCC, FTC, NLRB and SEC, were given a virtual carte blanche to operate under their Congressional mandate.
It is up to the judiciary to determine if these agencies have over stepped their bounds. Over the decades the Supreme Court has granted more and more autonomy to these agencies and reduced the judicial oversight of these decisions. Prior to 1984, the courts employed a “hard look” standard in reviewing agency actions ensuring that an agency’s actions were in keeping with the policy intentions laid down by Congress and within the remit of power granted by its authorizing legislation. As Garland wrote in his Harvard Law Review article, “[the role of the “hard look standard was] ensuring fidelity to Congressional purposes.”[4]
A radical transformation of the oversight of these agencies by the courts occurred with a series of decisions beginning with Chevron U.S.A. v. Natural Resources Defense Council [5] continuing with Auer v. Robbins [6] and the aforementioned City of Arlington in which the judiciary gave to these agencies not merely the great benefit of the doubt over whether a particular action is consistent with Congressional intent but also deferred to the agencies as to whether they have the power to take a particular action in the first place. The courts even went so far as to accept the abrogation of the constraints on the arbitrary power of these agencies by the use of procedural safeguards through the use of various backdoor maneuvers. By the beginning of the Roberts’ era on the Supreme Court, there seemed, to many legal scholars, very few, if any, constraints upon the power of these agencies.
Thus reviewing the rulings of Garland as an appellate judge in the post Chevron/Auer/City of Arlington legal zeitgeist it is a mistake merely to see his decisions as being favorable to either the subject matter of the agency whose actions are being litigated or even to the idea of deference to agency decision making. It would take a rogue appellate judge to ignore the great leeway the Supreme Court had for approximately 30 years granted administrative decision making. A careful jurist mindful of his limitations might, in his own personal political leanings, not have a favorable view of the NLRB, yet feel required to affirm its actions as within the power of the agency. Yet, the pundits would read these tealeaves and hold that Garland is a ”pro-labor” judge. Likewise, he has been labeled by these same commentators as rabidly anti-gun rights for his actions in a case in which he didn’t even rule on the merits but merely agreed that the case should be reconsidered by the entire D.C. Circuit Court. There are a variety of reasons why a case ought to be reconsidered which have nothing whatsoever to do with the underlying merits of a particular case but reflect the need to settle a procedural issue.
Now, this is not to say that Garland might indeed be a zealot for gun control or would, if president, have a very strong bias in favor of unionization, but merely looking at his cases, especially cases that affirm administrative agency rulings, do not, by themselves, provide enough evidence to make that claim responsibly. One of the more thoughtful pieces of analysis, that of Jeffery Rosen, in his piece posted on The Atlantic website this week, [7] recognizes that Garland’s faithfulness to the prevailing view of administrative law has held even in situations in which a liberally inclined jurist wishing to impose his political beliefs would have decided other than he did. Rosen relates that Garland took a robust view of Citizens United [8], a case widely reviled by liberal politicians for its upholding the idea that the contribution of money constitutes political speech and thus striking down laws that attempted to prohibit the funding of political groups. In the case SpeechNow.org v. FEC ,[9] Garland’s joining the D.C. Circuit Court’s opinion precisely demonstrates his understanding of the role an appellate judge must play when the Supreme Court has spoken:
In light of the Court’s holding as a matter of law that independent expenditures do not corrupt or create the appearance of corruption…Given this analysis from Citizens United we must conclude that the government has no anti-corruption interest in limiting to an independent expenditure group such as SpeechNow.[10]
The most important phrases here to comprehend Garland’s understanding of the role of an appellate judge are “as a matter of law” and “Given this analysis from Citizens United…”. By signing on to these phrases in the Circuit Court’s opinion, Garland makes plain that this decision is not policy based but rather it is compelled by what he views as an appellate court judge’s role in applying Supreme Court precedents to the case at hand. It would be no more appropriate to state that Garland was in favor of seeing contributing money as political speech as it would to call him anti-gun zealot for his decision to grant reconsideration in the D.C. hand gun case. If anything, a perusal of his decisions makes him out to be a careful jurist, closely applying the appropriate case law and statutes to the cases before him.
While Rosen recognizes the constraints placed upon an appellate judge make it difficult to deduce his policy judgments through his rulings, Rosen goes wrong when he reads Garland’s decisions to suggest that he upholds the change in administrative legal theory established by Chevron and the other cases noted above. Rosen points out that as a D.C. Circuit Court judge, Garland most often deferred to agency decisions in his appellate rulings. Just as with deducing Garland’s political leanings by his decisions, so too is it difficult to adduce what Garland’s beliefs on agency deferral may be by his appellate rulings as well. For example as with his opinion in SpeechNow.org, the fact that he applies Chevron and the other landmark cases does not necessarily mean that Garland would provide the same judicial deference to administrative agencies where he free to do otherwise as a Supreme Court Justice. Rosen’s quotation of Garland’s comments during oral arguments in Americans for Safe Access v. DEA [11] regarding the inadvisability of substituting judicial substantive judgments for administrative rule making: “Don’t we have to defer to the agency? We’re not the scientists. They are.” [12] is not proof, in itself, of an acceptance of Chevron and its progenies’ legal theory. Indeed, if anything, it merely bespeaks Garland’s limited view of the role of judges.
The issue that Roberts and his colleagues have been advancing is not that judges make better technical decisions than agency scientists but rather that agencies cannot themselves decide legal issues, such as whether their actions are in keeping with Congressional intent. Indeed, one could easily read a Justice Garland opinion in which he overturns an agency action for misreading legislative policy proscriptions: “We should not defer to the agency. They are not judges. We are.” The reason why such a statement would not be out of character for Garland, free from having to adhere to Supreme Court decisions, comes from a reading of his Harvard Law Review article. Unlike another The Atlantic posting, this time by Garrett Epps, which described the Harvard Law Review article as affirming an expansive understanding of judicial deference to the actions of administrative agencies [12], a more nuanced reading of the piece suggests that his view of administrative law might be more in line with the constraints placed upon agencies by Roberts.
While the article devotes most of its analysis to the changes in administrative law brought about by the spate of deregulation in the late 1970s and 1980s, Garland did not wish to abandon the traditional “hard look” analysis by the courts for the “rational basis” test promulgated by Chevron. He bent over backwards to try to shoe horn Chevron as in line with that level of judicial review.
State Farm [the landmark case that established “hard look” level of judicial scrutiny] and Chevron can therefore be harmonized. The degree of their harmony depends upon whether the Clean Air Act Amendments indeed reflect two competing Congressional purposes or whether the Court in Chevron exaggerated the conflict in order to permit the unrestrained exercise of agency discretion. Since the legislative history contains support for both conclusions, Chevron need not be read as a retreat from the commitment to hard look review expressed by State Farm. [13]
Note that he believed that a change from hard look to rational basis would be a “retreat” rather than a positive advancement in administrative legal theory. His fondness for the hard look threshold came through elsewhere in the paper:
By requiring not only that the agency set forth a rationale consistent with the statutory purpose…a court substantially decreases the odds that an agency decision motivated by improper purposes will escape invalidation. [14]
Throughout the paper, Garland’s concern that an agency shapes its actions to conform to legislative intent is manifest. While his belief that Chevron could be squared with the hard look threshold has been dashed by later Supreme Court cases that, as an appellate judge he is bound to follow, his article demonstrated no intellectual love for unfettered agency discretion. In writing about an “Emerging Fidelity Model” in administrative law, Garland posited:
At its core is a return to the traditional model’s central tenet that agency action is justifiable only if it remains faithful to the dictates of the legislative process….The new model does not ignore the problem of discretion, rather makes an effort to harness it in the service of fidelity. The exercise of discretion must not only be rational in some abstract sense; it must also be reasonable in light of the legislative purpose….[S]ubstantive review is not inappropriate for an institution whose legitimacy is rooted in a delegation from the legislature. [15]
Despite Epps’ implications to the contrary in his The Atlantic posting, Garland’s paper does not support the thesis that he has long supported increased deference to agency actions that Chevron and its successor cases required and which as a careful appellate judge, Garland faithfully followed. In fact, Garland’s article actually promotes the idea of substantive review, that is permitting the courts to examine the actual actions themselves, something that in his statement in oral argument the case Epps’ cited above that as a judge he is not a scientist, he had ruled out as inappropriate.
Of course, much has happened both to the nation and to Garland in the 31 years since his paper has been published. Perhaps the thesis, which he as a young unencumbered scholar had advanced, has been abandoned by his years on the bench. Perhaps he has come to see the wisdom of Chevron, Auer and City of Arlington. If so, then he will, as is expected by the instant analysts, take his place firmly on the center-left wing of the Court. But, perhaps, once unconstrained by the role as a judge on an “inferior” court as he has been, he might take the trenchant analysis of administrative law which can be glimpsed through his extra-judicial writing and join with Roberts in the placing of fetters upon the ever expanding administrative state. If that is the case, then all of the various pundits will be agog.
They shouldn’t be either cock-sure or agog. Garland’s tenure on the appellate bench has been characterized by a careful and respectful approach to judging that has demonstrated a sense of judicial restrain in the face of precedents and statutory authority. But being a Justice is a far different job than being even an D.C. Circuit judge. Like all Justices, he will carve out his own jurisprudential path over time and it will be one in which we can only surmise at this moment much as if we were attempting to assess his future neurologic status through the tapping of his patellar tendon reflexes today.
Mr. Nuzzo is the managing partner of The Colchester Group and has practiced and published on administrative law. He is currently working on a book about institutional reform litigation.
Notes:
[1] 135 S.Ct. 475 (2014).
[2] 133 S.Ct. 1863, 1877 (2013) (dissent, Roberts, J.).
[3] Merrick Garland, “Deregulation and Judicial Review”, 98 Harv. L. Rev. 505 (1985).
[4] Id. at 557.
[5] 467 U.S. 837 (1984).
[6] 519 U.S. 452 (1997).
[7] Jeffery Rosen, “The Nomination of Merrick Garland is a Victory for Judicial Restraint”, The Atlantic, (Mar. 19, 2016), http://www.theatlantic.com/politics/archive/2016/03/why-merrick-garland-is-a-judges-judge/474246/
[8] Citizens United V. FEC, 558 U.S. 310 (2010).
[9] 599 F.3d 686 (D.C. Cir. 2010).
[10] Id. at 694–5.
[11] 706 F.3d 438 (D.C. Cir. 2013).
[12] Garrett Epps, “Merrick Garland Is a Great Pick; That May Not Matter”, The Atlantic, (Mar. 18, 2016), http://www.theatlantic.com/politics/archive/2016/03/merrick-garland-is-a-great-choice-that-may-not-matter/474093/.
[13] Garland, supra, at 552–3.
[14] Id. at 557.
[15] Id. at 586.
