Majority, Concurring, and Dissenting Opinions Authored by Judge Merrick Garland
Released: 2016-05-02T00:00:00

Introduction

On March 16, 2016, President Obama nominated Judge Merrick Garland of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) to fill the vacancy on the Supreme Court left by the death of Justice Antonin Scalia on February 13, 2016. Judge Garland was appointed to the D.C. Circuit in April 1997, and since February 2013 has served as the circuit court's Chief Judge, an administrative position that rotates among the active judges on the circuit. During his nearly two decades on the bench, Judge Garland has served on three-judge or en banc D.C. Circuit panels that have made rulings in well over 1,000 cases. He has also served on a few panel decisions at the district court level. Cases considered by Judge Garland have concerned a wide range of legal topics ranging from rulemaking by federal administrative agencies, to criminal law and procedure, to the review of legal challenges arising under the local laws of the District of Columbia.

To assist Members and committees of Congress and their staff in their ongoing research into Judge Garland's approach to the law, this report identifies and briefly summarizes each of the more than 350 cases in which Judge Garland has authored a majority, concurring, or dissenting opinion. Arguably, these written opinions provide the greatest insight into Judge Garland's judicial approach, as a judge's vote in a case or decision to join an opinion authored by a colleague may be based upon a number of considerations and may not necessarily represent full agreement with a joined opinion. This report does not address instances when Judge Garland sat on a reviewing judicial panel but did not author an opinion. Accordingly, instances where Judge Garland was part of a panel that issued a per curiam opinion, which did not credit a particular judge as the author, are omitted from this report. The report also does not address subsequent legal proceedings that may have occurred after a cited decision was issued.

The opinions listed in this report are categorized into two tables: one table identifying opinions authored by Judge Garland on behalf of the reviewing court, and the other table identifying opinions authored by Judge Garland separate from the majority opinion. Cases are listed in reverse chronological order by date of decision. In each case, the key ruling or rulings of the case are succinctly described. Judicial opinions discussed in this report are categorized using the following 19 legal subject areas:

Administrative law Civil liability (e.g., tort preemption, arbitration, class actions, statutory right to sue) Civil rights Criminal law/procedure D.C. local government Election law Environmental law Energy Federalism Federal courts (e.g., standing to sue, civil procedure) First Amendment (e.g., freedom of speech, freedom of the press) Government information (e.g., claims concerning the Freedom of Information Act) Health care (e.g., Medicare or Medicaid reimbursement) International law Labor law National security Separation of powers Tax law Transportation

Where appropriate, multiple subject areas are identified as relevant to a particular case. The list above is not an exhaustive accounting of all possible subject areas addressed by the cases below, but focuses on those legal topics that have most frequently arisen in cases adjudicated by Judge Garland. Moreover, the fact that a case is categorized under a particular legal subject area does not necessarily mean that some observers might not deem other categories to be pertinent. For example, several cases concerning the disposition of challenges brought by wartime detainees held at the U.S. Naval Station at Guantanamo Bay, Cuba, are categorized solely under the legal subject area of "National security," though some observers may believe that such cases also could be deemed to fall under the "Separation of powers" category (because they arguably concern judicial review of executive discretion in wartime matters) or the "Administrative law" category (because such cases often involve review of determinations made through an administrative process employed by the U.S. military to assess whether a person is properly detained as an enemy belligerent). Accordingly, while the categorizations employed by this report may provide a helpful guide to readers in locating decisions dealing with particular topics, they do not necessarily reflect the full range of legal issues raised by a judicial opinion.

While this report identifies and briefly describes those opinions authored by Judge Garland during his tenure on the federal court, it does not analyze the implications of his judicial opinions or suggest how he might approach legal issues if appointed to the Supreme Court. Those matters are discussed in CRS Report R44479, Judge Merrick Garland: His Jurisprudence and Potential Impact on the Supreme Court , coordinated by [author name scrubbed], [author name scrubbed], and [author name scrubbed].

Methodology

The cases included in this report were compiled utilizing the following methodology:

The majority opinions were found by searching the District of Columbia Circuit—U.S. Court of Appeals database on Lexis for OpinionBy(Garland). The concurring opinions were found by searching the District of Columbia Circuit—U.S. Court of Appeals database on Lexis for ConcurBy(Garland) . The dissenting opinions were found by searching the District of Columbia Circuit—U.S. Court of Appeals database on Lexis for DissentBy(Garland) . Concurring or dissenting opinions issued in cases where Judge Garland wrote the majority opinion were found by searching the District of Columbia Circuit—U.S. Court of Appeals database on Lexis for OpinionBy(Garland ) , and limiting those results by searching for Judges(concur! or dissent!) . District court opinions in which Judge Garland is credited as an author were found by searching the District of Columbia Circuit—U.S. District Court Cases database on Lexis for Judges(Garland) .

Not all results from these searches ultimately proved to be relevant, such as when the D.C. Circuit declined a petition for en banc rehearing in a one-sentence decision joined by all of the reviewing judges. That decision and similar rulings are not discussed in this report. Ultimately, this methodology resulted in the identification of 355 instances in which Judge Garland is credited as an author of a judicial opinion in cases either before the D.C. Circuit (354 cases) or the U.S. District Court for the District of Columbia (a single case).