How Merrick Garland Would Fit on the Bench

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“We’re in the process of picking a president, and that new president ought to make this appointment, which will affect the Supreme Court for the next quarter of a century.” Senate Majority Leader Mitch McConnell ruled out confirming Merrick Garland as a replacement for Antonin Scalia on CNN’s “State of the Union” this week. While most of America — 63 percent according to an ABC News poll — disagrees with this decision, it is difficult to disagree with McConnell on the importance of this nomination.

The vacancy of Scalia’s seat leaves the Supreme Court in a perfect 4-4 split of liberal and conservative judges, with the impending nomination tipping the scale and creating the potential to have the most liberal Supreme Court since the 1930’s. According to a graphic made by the New York Times, Garland would become the third most liberal justice on the court. His nomination would result in five strictly liberal justices and four on the right who range from the relatively moderate Kennedy to staunchly conservative Thomas.

Assuming (probably incorrectly so) the Senate will confirm Garland, I decided to look into exactly what decisions he could be contributing to shortly after taking his seat on the bench. The docket is full for arguments the Supreme Court will be hearing this term, and Garland could have a profound effect on all of them, especially the following.

Evenwel v. Abbot

In our Constitution, the “one man, one vote” clause seems fairly straightforward. However, with the existence of redistricting and unfortunate prevalence of gerrymandering, court cases like Baker v. Carr and now Evenwel v. Abbot often exist to define subtleties within the meaning of the clause. In this particular case, the question is whether district apportionment should based on total population or total voter population. Obama weighed in, agreeing with Texas that total population should be used, claiming that to do otherwise would render large parts of our population to become irrelevant to democracy.

The case has been criticized for attempting to weaken the Voting Rights Act and disenfranchise minority groups by not including immigrants and creating more rural conservative districts. During oral arguments, the court seemed to break along party lines. Justices Sotomayor, Kagan, Ginsburg, and Breyer were all immediately vocal during the arguments, and, while cases like these are only heard by the Supreme Court and we therefore have no previous opinions about “one man, one vote” from Garland, it is safe to assume that his leftist tendencies will put him on the liberal side of the argument.

Fisher v. UT Austin

This is the second time this affirmative action case has been heard by the Supreme Court. Abigail Fisher sued the University of Texas for having race-conscious admissions that she claimed were in direct conflict with Grutter v Bollinger. The appellate court ruled in favor of the University, and the case was then brought to the highest court, where it was remanded. The Fifth Circuit once again found the University correct, and after Fisher’s appeal, it is back on the Supreme Court docket.

Scalia openly argued on behalf of Fisher during oral arguments, as did Roberts and Alito. Though Kennedy was not as openly opposed, the arguments seem to be splitting down party lines once again. With Scalia’s empty seat and the recusal of Kagan due to her tenure as Solicitor General, the bench for this case tips to the right 4-3, if the occasional swing voter Kennedy sides with his more conservative colleagues. If Garland were to be nominated, however, the split could become 4-4. While neither side would have a clear majority, the case could be remanded yet again for more facts, or perhaps Kennedy will swing to the left and in favor of the University, solidifying affirmative action yet again.

Friedrichs v. California Teachers Association

In this case, the court will determine the constitutionality of requiring public school teachers to pay mandatory union dues. In the late 70’s, the Supreme Court upheld the constitutionality of a union shop in a public workspace, but a California teacher is now challenging the mandatory dues when she disagrees with union practices.

It has been called one of the closest cases this term, with a 5-4 vote almost certain until Scalia’s passing. While it could have been assumed even before the nomination of Garland that Obama’s undoubtedly liberal-leaning choice would tip the balance to the left, Garland specifically has a history of siding with labor unions. The Wall Street Journal points out that, during his 20 years on the D.C. Circuit Court, Garland’s  decisions nearly always sided with unions and the NLRB. With an already clearly defined opinion on labor, Garland would certainly change the 4-4 split to 5-4 in favor of the California Teachers Association, should he be nominated before a reargument.

Obama has nominated an undeniably qualified and relatively moderate judge to the highest court in the land. While many Americans and the current executive branch disagree, Republican lawmakers may still block the nomination, citing the president’s nearly lame-duck status as insufficient to make a decision that would potentially shift the judicial branch farther left than it has been in decades. The question of today is whether this block is an act of democracy letting the American people decide the new president to choose a justice, or simply a political move to stall the court from becoming too liberal. While this motive is important to consider, the actual influence on cases by the new justice — potentially Garland — is insurmountably more significant to the country.




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