Court Battles

Inside Merrick Garland’s judicial record

Haiyun Jiang

Advocacy groups are closely scrutinizing the judicial record of Merrick Garland, President Obama’s Supreme Court nominee, for insight into how he’d vote on many contentious issues.

Garland has been on the U.S. Court of Appeals for the D.C. Circuit for 19 years, and Obama has touted him as a centrist, consensus-builder.

But both liberal and conservative groups are looking for red flags in his long record.

{mosads}Conservatives are already pointing to his vote to rehear a gun rights case, voicing concerns that he could lean to the left on Second Amendment issues.

Liberal groups, though, have seized on his decisions on the military prison at Guantanamo Bay, claiming they show he’d side with the court’s conservative wing on criminal justice

Despite nearly two decades on an appeals court, Garland’s record still presents questions about how he’d vote on hot button issues including abortion, gay rights and the death penalty should he be confirmed.

Garland’s fate is up in the air, with Senate Republican leaders insisting the late Justice Antonin Scalia’s seat be filled by the next president. But that won’t keep advocacy groups from putting Garland’s record under the microscope.

Here’s a look at some of Garland’s most intriguing cases: 

Gun rights

In 2007, a three-judge panel of the D.C. Circuit voted to strike down the District of Columbia’s handgun ban. That decision was cheered by gun rights advocates who saw the handgun ban as unconstitutional.

But Garland voted for the full Circuit court to rehear the contentious case, While the judges ultimately decided not to in a 6-4 vote, Garland’s stance worries gun rights supporters.

The conservative-leaning Judicial Crisis Network has criticized Garland’s nomination, citing that vote.


In 2003, Garland joined the court’s majority in Khaled Al Odah v. U.S. Their ruling held that federal district courts lack jurisdiction to hear cases challenging the legality and conditions of Guantanamo Bay detentions.

Liberal groups criticized that ruling, saying it would make it harder for prisoners at Guantanamo to pursue help in the courts.

The Supreme Court, though, later reversed that decision in a 6-3 a ruling.

In 2014, Garland joined the majority in Hatim v. Obama, which upheld two new security policies at Guantanamo Bay. One required prisoners to meet with their attorneys in a new, guarded location. The second policy required prisoners to undergo a more invasive search of the genital area before and after meeting with their attorneys.

The court called the policies “reasonable security precautions.”


The Catholic Association is raising concerns about Garland’s 2015 vote in an abortion case.

Priests for Life brought a case against the Department of Health and Human Services that challenged the Affordable Care Act’s birth control mandate.

The D.C. Circuit Court of Appeals sided with the administration, ruling that Priests for Life’s religious rights were not burdened by having to opt out of the contraception mandate.

When Priests for Life called for another review, Garland sided with the majority denying a rehearing of the case. He publicly gave no reason for that decision.

The challenge is now one of several cases before the Supreme Court, with nonprofits claiming the mandate violates the Religious Freedom Restoration Act, forcing them to act against their beliefs. Oral arguments for the cases will be heard on Wednesday. 

Campaign finance

In 2009, Garland authored the court’s majority opinion in a case challenging a lobbying disclosure rule, National Association of Manufacturers v. Taylor.

The National Association of Manufacturers had sued, arguing that disclosing participation in their lobbying activities would discourage supporters’ First Amendment rights.

Garland upheld the rule, dismissing those concerns.

“[I]t is clear that ‘the strength of the governmental interest’ in providing greater information about lobbying ‘reflects the seriousness of the actual burden’ that disclosure puts ‘on First Amendment rights.’”

Garland’s record on campaign finance laws, though, appears to be mixed.

In 2010, in another case, v. FEC, Garland sided with a unanimous court in striking down federal limits on contributions to independent political groups.

In 2015, he wrote the court opinion upholding a law barring federal contractors from making campaign contributions while they negotiate or perform federal contracts.

“It strikes at the dangers Congress most feared while preserving contractors’ freedom to engage in many other forms of political expression,” Garland wrote in his opinion in Wagner v. FEC.

Regulatory authority

Garland has a record of siding with federal agencies in cases challenging regulatory actions.

One case involved the National Labor Relations Board’s decision to designate certain workers as employees rather than contractors.

The circuit court overruled that NLRB decision in 2009, but Garland dissented, instead supporting the agency’s move.

In 2003, he wrote the court’s opinion in another case upholding Labor Department citations on Excel Mining for exposing workers’ to coal dust.

Tags Antonin Scalia Judicial activism Merrick Garland Supreme Court of the United States

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