Tuesday, April 12, 2016

Assessing Judge Merrick Garland as a Writer

BarWrite President Mary Campbell Gallagher offers her assessment of SCOTUS nominee Judge Merrick Garland. He strives to make his reasoning clear and favors the “living document” interpretation of the Constitution:

In the opinions I have read, Judge Garland works hard to make his reasoning clear. Take the 2013 case under the Freedom of Information Act (FOIA) called ACLU v. CIA. There, plaintiffs sought documents relating to targeted killings using drones. The CIA answered with the so-called Glomer response, refusing to confirm or deny that it had such records. It argued that disclosure would reveal whether or not the CIA has an interest in drone strikes. The district court granted summary judgment for the agency. In his opinion reversing the district court and remanding the case, Judge Garland emphasized earlier cases where plaintiffs had demonstrated official government acknowledgment of the existence of the documents in issue, causing the Glomer argument to fail. Applying that reasoning, Judge Garland wrote that the President had publicly acknowledged the use of drones for targeted killings, as had high government officials. It therefore made no sense, he said, to claim that the CIA had no interest in, or documents on, the subject of targeted killing using drones. He said that this question was a different question from whether the CIA itself engaged in drone strikes.

Turning to judicial philosophy, note two strands of the late Justice Scalia's philosophy. First, Justice Scalia insisted, and he persuaded many others, that the text of any statute stands alone, and that its so-called legislative history should not affect a court's interpretation of the statute's words. This may be his greatest judicial legacy. Second, while Justice Scalia was not the first to demand a strict reading of the words of the Constitution, his support for the "originalist" interpretation was hugely influential. He believed in leaving legislating to the legislators. Where does Judge Garland stand? It appears that in contrast to Justice Scalia, he favors the "living document" approach. This allows judges flexibility in choosing how to interpret the Constitution. If so, this judicial approach will determine the cast of his opinions, and doubtless the outcomes of some cases, if Judge Garland becomes a justice of the U. S. Supreme Court. See Juan Williams, writing in the Wall Street Journal for April 2-3, 2016, "The Never Ending Battle Over How to Read the Constitution". (Paywall)

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