April 6, 2016

Merrick Garland, John Roberts usually agreed on appeals court

Merrick Garland, John Roberts usually agreed on appeals court

WASHINGTON — President Obama’s nominee to the Supreme Court and its current chief justice, chosen by President George W. Bush, agreed on almost everything during two years together on the nation’s second most powerful court.

In 34 cases the two shared that led to significant decisions, Merrick Garland and John Roberts agreed in all but five — an 85% rate of agreement.

They ruled both for and against federal agency actions as well as employers, workers and consumers. They came down hard against terrorist activities involving Iran and Libya. They nearly always denied criminal defendants’ efforts to reverse convictions or reduce sentences.

Their few differences highlight Garland’s more reliable support for government actions and Roberts’ skepticism of federal power. In cases involving challenges to federal and D.C. laws regulating endangered species, false claims and gun ownership, Garland sided with the government against Roberts.

They also differed at first on then-vice president Dick Cheney’s effort to keep records of an energy task force he headed secret, but they wound up on the same side. In 2003, Garland agreed with the court’s refusal to hear Cheney’s appeal of a panel ruling that went against him, which Roberts wanted to hear. In 2005, chastened by the Supreme Court, both signed on to a unanimous opinion in Cheney’s favor.

Garland, whose Supreme Court nomination Senate Republicans now refuse to consider, was named to the appeals court by President Bill Clinton and confirmed in 1997. He was the most junior judge there for six years, until Bush named Roberts in 2003.

Two years later, Roberts, now 61, was elevated to the Supreme Court as chief justice upon the death of William Rehnquist. Garland, 63 and beginning his 20th year on the lower court, was passed over in 2009 and 2010 for Supreme Court nominations. While their fortunes diverged, however, a review of their brief time on the bench together reveals two judges with similar ways of resolving cases. • Deferring to government agencies. Garland has been criticized by conservative groups for deferring to the Environmental Protection Agency and others on regulatory matters. But more often than not, he and Roberts agreed in cases that went both for and against the government.

In one case, Roberts ruled against a Resolution Trust Corporation whistle-blower who claimed he was fired in retaliation for disclosing information he said was protected by the First Amendment. In another, he ruled that the Navy could shield information on its selection process from a group of chaplains claiming bias in promotions. Garland signed on to both opinions.

The two judges also ruled that the Federal Energy Regulatory Commission lacked authority to order a gas company to install and pay for meters on natural gas wells, and that the Federal Communications Commission could not force Verizon to unbundle and lease parts of its network. • Labor versus business. Garland and Roberts agreed in cases that went in favor of workers and those that didn’t.

Roberts wrote an opinion overruling the National Labor Relations Board’s determination that a group of college employees had bargaining rights, when the college claimed they were managerial and did not. Garland wrote that the NLRB was correct in deciding that a group of union workers had the right to hand out materials at a plant operated by their employer, even though they didn’t work there. Each signed on to the other’s opinion.

The two judges both refused to rehear a panel’s ruling in favor of the Bush administration’s mandate that government contractors post information at workplaces about the rights of employees not to join unions or pay for their political activities. And they joined, against a third judge’s dissent, in upholding the right of a former employee to sue the Washington, D.C., regional metro system over a claim that he was fired because of a disability.

• Criminal cases. Because it has jurisdiction over the District of Columbia, the appeals court hears a number of criminal cases. In nearly all of them, Garland joined Roberts in siding with law enforcement and against defendants.

Typical of those cases were decisions written by Garland against a crack cocaine dealer who claimed the substance he sold was a milder form of the drug requiring a lesser sentence, and against another drug dealer who sought a mistrial because of testimony about prior gun charges that had been dismissed.

Garland signed on to a Roberts opinion reversing a federal district court that had denied immunity to police supervisors for alleged civil rights violations committed by subordinates during a demonstration. He also sided with Roberts in refusing a bank robber’s effort to suppress evidence against him.

• International terrorism. When it came to allegations of criminal activity by rogue regimes, Garland and Roberts were of one mind.

In two cases decided in July 2004, Roberts agreed with the State Department’s designation of an Iranian group as a terrorist organization, and Garland refused efforts by Libya to avoid responsibility for the torture and murder of an American citizen. Each signed on to the other’s opinion.
Beyond the Cheney episode, the few cases in which Garland and Roberts emerged on opposite sides involved Garland’s support and Roberts’ opposition to government actions:
• Gun control. In a precursor to a case that eventually led to the Supreme Court’s 2008 ruling that citizens have a Second Amendment right to keep guns for self-defense, the appeals court refused to reconsider a challenge by some D.C. residents to the city’s firearms restrictions.

The majority, including Garland, let stand a three-judge panel’s ruling that said the residents must first seek gun permits and be rebuffed, even if that would subject them to criminal charges. Roberts was among three judges who wanted to rehear the case.

• The arroyo toad. Shortly after arriving at the court, Roberts dissented from the full court’s refusal to grant a rehearing to a developer whose application to build more than 200 homes in San Diego was blocked by the U.S. Fish and Wildlife Service because it would endanger the arroyo southwestern toad. Garland had served on the three-judge panel that upheld the agency’s ruling.

The panel’s approach in this case leads to the result that regulating the taking of a hapless toad that, for reasons of its own, lives its entire life in California constitutes regulating commerce … among the several states,’ Roberts wrote.

• The False Claims Act. Garland dissented from a Roberts opinion that absolved two contractors of violating the False Claims Act after they delivered defective rail cars to Amtrak. Roberts said Amtrak was not the government and therefore did not fall under the False Claims Act. Garland noted Amtrak gets most of its money from the government.

The consequence of today’s ruling is a dramatic cutback in the federal government’s ability to protect itself against false claims on federal grant money,” Garland wrote.

At his Supreme Court confirmation hearing in 2005, Roberts conceded that the case was a close call. Any time Judge Garland disagrees,” he said, you know you’re in a difficult area.”


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