Garland’s Appointment Could Lead to the Most Liberal Supreme Court in 80 Years

How liberal is Merrick Garland, Obama’s pick to fill Justice Antonin Scalia’s seat on the Supreme Court?

There’s somewhat of an online battle over the point. Take, for instance, Garland’s Wikipedia page, which saw a series of back-and-forth edits to his description as a “judicial moderate” and a “strong liberal.” If Wikipedia editors aren’t your preferred metric of reality, don’t worry, there have been plenty of words devoted to determining Garland’s ideological bent this week, and the general consensus has been that he’s a moderate.

Reuters called him a “centrist judge” whose selection was “meant to win over recalcitrant Senate Republicans.” NPR called him a “moderate” with a “reputation for collegiality and meticulous legal reasoning.” And the New Republican noted that his “relatively liberal record” is also typified by “cautious, evenhanded opinions.”

Aside from these bland generalizations, what does Garland’s case history tell us? In some ways, Garland’s record is murky because of his long tenure on the D.C. Circuit Court, which gets a steady diet of cases tilting toward administrative law, but rarely deals with hot-button issues like abortion, affirmative action or First and Second Amendment rights.

That’s not to say that Garland’s liberalism hasn’t had it’s day in the sun. For instance, in 2002, he dissented from a ruling that struck down the Environmental Protection Agency’s “Haze Rule,” which required states to cut emissions using the best available technology, regardless of costs, until “natural visibility” was restored. In 2014, he upheld a upheld an Agriculture Department rule that required labels on meat to identify where the animal was born, raised and slaughtered. And, in the landmark gun right case—District of Columbia v. Heller—Garland voted to undo a D.C. Circuit court decision to strike down a ban on individual handgun possession in favor of rehearing the case before the full Circuit court.

Ultimately, looking at Garland’s record for clues about how he will impact the Supreme Court isn’t a very meaningful exercise for two reasons. First, the ideology of the appointing president is a much more reliable indicator of a Supreme Court justice’s record than a person’s votes as an appellate judge. Eric Posner writes for Slate:

The political scientists Lee Epstein and Andrew Martin looked at the data using regression analysis and found that conservative justices generally vote to strike down liberal statutes and liberal justices generally vote to strike down conservative statutes.

Epstein does point out, though, that the ideology of the president who appoints a justice is a reliable predictor of how the justice will vote on the Supreme Court. If the pattern holds for Garland, Republicans have much to fear from him. Whether you think of Garland as an ideological soul mate of Bill Clinton (who appointed him to the D.C. Circuit Court) or of Obama (who is trying to appoint him to the Supreme Court), his voting on the Supreme Court will be hard to distinguish from that of the current four liberal appointees. Two of those justices were appointed by Clinton and two of them were appointed by Obama, but all four vote nearly the same, solidly on the liberal side of the spectrum.

And second, the ideological context of the Supreme Court must be taken into account considering that cases are decided by a majority vote. In short, in makes more sense to look at the court’s balance of power than it does on any individual justice’s ideological make-up. And on that score, Garland’s appointment would make the court more liberal than at any point in nearly 80 years. Alicia Parlapiano and Margot Sanger-Katz report for the New York Times:

Supreme Court scholars often talk about the “median justice,” who can help secure a five-vote majority in controversial cases. Currently, that median justice is Justice Anthony Kennedy, whose voting record has been ranked as weakly conservative in recent years — and as weakly liberal in the last term.

If his past record is predictive, and Mr. Garland earns confirmation and votes with the court’s current liberal bloc, the new median justice will become Stephen Breyer, the most liberal median justice since 1937, when the scholarly rankings began.

So, in sum, Garland has a fairly liberal record, at least when it comes to agency-related actions, but when placed in the context of other justices he shifts the Supreme Court far to the left of where it has been in a very long time. Is that what Americans want? That’s what the Republican Congress wants to figure out.