To get a real feel for a judge, a theory goes, look not at the majority opinions he writes, which must encompass the views of others, but when he writes for himself in dissent.
Dissents allow a judge his own voice and the chance to deliver an unvarnished verdict on the law — to call out the “legalistic argle-bargle” of hopelessly misguided colleagues the way Justice Antonin Scalia did, or advise Congress to cure a particularly unwise ruling, as Justice Ruth Bader Ginsburg has done.
Judge Merrick Garland respectfully disagrees.
A look at the record of dissents from the judge whom President Obama has nominated to take Scalia’s place on the court reveals the same caution, technical proficiency, restraint and reliance on precedent that are hallmarks of his majority opinions.
Moreover, he has written remarkably few — less than one a year during his nearly two decades on the U.S. Court of Appeals for the District of Columbia Circuit, and apparently none since becoming chief judge in 2013.
“I think he always sounds the same,” said Aaron L. Nielson, a law professor at Brigham Young University who closely follows the decisions of the D.C. Circuit. “Most of the time, he is very even-toned, not aggressive.”
A representative sample:
“Reasonable minds can differ about what is reasonable, and I certainly understand my colleagues’ reservations,” Garland wrote in Northeast Beverage Corp. v. National Labor Relations Board in 2009. “But I am unable to conclude that the Board’s application of Section 7 to the facts of this case was unreasonable.”
Perhaps his feistiest exchange with a colleague was in a disagreement with a man with whom he aspires to argue once again — Chief Justice John G. Roberts Jr. Then a D.C. Circuit colleague, Roberts wrote a majority opinion about the False Claims Act that drew Garland’s ire.
“That was a little bit — fiery, isn’t the right adjective — engaged,” said Nielson, who clerked for another judge on the D.C. Circuit and later for Justice Samuel A. Alito Jr.
In general, Garland’s dissents reinforce what is apparent from his majority opinions — that he is deferential to federal agencies, protective of press freedom, more open than some of his colleagues to a broader definition of what constitutes criminal behavior.
The dissents affirm his position on the court’s left — he most often disagrees when one of the court’s conservatives is writing the majority opinion. The exception is on law-and-order cases, where he has parted ways with liberal colleagues who have overturned convictions. That position seems in line with his former role as a federal prosecutor.
In Valdes v. United States, the full circuit court in 2007 overturned the conviction of Nelson Valdes, a detective for the D.C. police department. Valdes was the target of a sting operation in which he was paid in cash to search police databases to supply otherwise publicly available information.
The majority of the judges said the actions did not constitute an “official act” to which the bribery statute applied.
“A guy walks into a bar,” Garland’s dissent begins, referring to the shady aspects of the agent’s solicitation of Valdes.
The bottom line, Garland concluded: “A jury convicted the detective of accepting an illegal gratuity — to put it bluntly, a ‘payoff.’ Today, the court reverses the conviction on the ground that accepting such a gratuity does not constitute a crime. Because the court’s decision is wrong, and because it undermines the prosecution of public corruption, I respectfully dissent.”
His disagreement with Roberts was over whether former Amtrak employee Edward Totten could go forward with a whistleblower claim that two companies had delivered defective rail cars to the railway.
The False Claims Act is the government’s primary litigation tool in guarding against fraud. But Roberts and another judge on the panel said that the language of the act covers only bills presented to the government, and Amtrak is not the government.
Garland countered that the government gave Amtrak the money that paid for the railcars. Such a tight reading of the statute would leave vast sums of government money unprotected, he said.
The two dueled, in the language of lawyers.
Roberts: “The dissent literally begins and ends with legislative history. We will end as we began, too, but with the statutory language.”
Garland: “The court counters the payment to the defendants was not a payment ‘by the government’ since Amtrak — a government grantee rather than the government itself — wrote the check. The implications of the court’s argument are breathtaking.”
The two even sparred over which side the “inestimable” Judge Henry J. Friendly, a famous circuit judge for whom both clerked, would take.
“In Judge Friendly’s view, this court would do ‘pretty well to read the statute to mean’ what Congress said it meant,” Garland wrote.
Interestingly, Roberts’s decision was sharply questioned at his Supreme Court confirmation hearing in 2005 by Sen. Charles E. Grassley (R-Iowa), who is now chairman of the Senate Judiciary Committee and taking a hard stand against allowing a hearing for Garland.
“I’m happy to concede that it was among the more difficult cases I’ve had over the past two years,” Roberts told Grassley. “Any time Judge Garland disagrees, you know you’re in a difficult area. And the function of his dissent, to make us focus on what we were deciding and to make sure that we felt we were doing the right thing, I think was well-served.”
In 2005, Garland objected when the full court reviewed a three-judge panel’s decision that reporters must divulge their sources in a privacy lawsuit filed by nuclear scientist Wen Ho Lee, who alleged that federal agencies leaked defamatory information about him.
“Unless potential sources are confident that compelled disclosure is unlikely, they will be reluctant to disclose any confidential information to reporters,” Garland wrote, referencing earlier court decisions. “And if our case law has that consequence, it will undermine the Founders’ intention to protect the press so that it could bare the secrets of government and inform the people.”
As Obama pointed out when he introduced Garland to the nation Wednesday, the D.C. Circuit is often referred to as the nation’s second-highest court because it deals with important questions about government, campaign-finance law and regulations. The audience for its decisions is composed of government officials, lawyers and other judges.
It is relatively removed from controversial issues such as abortion, the death penalty and affirmative action that crowd the dockets of other courts. The language of its opinions is more technical and muted.
Garland’s dissent from a court decision that shielded private military contractors at Abu Ghraib prison in Iraq from lawsuits had a bit more bite.
“The plaintiffs in these cases allege that they were beaten, electrocuted, raped, subjected to attacks by dogs, and otherwise abused by private contractors working as interpreters and interrogators at Abu Ghraib prison,” Garland wrote.
He objected to the “breadth of the protective cloak [the court] has cast over the activities of private contractors.”
Alice Crites contributed to this report.