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By: Dan Cohen – 3/17/16

Although it may be nothing more than an academic exercise given the political wrangling that is sure to follow the nomination, I wonder how President Obama’s recent Supreme Court Nominee, Merrick Garland, would decide employment and labor cases. Tom Goldstein, publisher of the SCOTUSBlog, provided a survey of Judge Garland’s decisions in 2010, when he was a contender for the seat that was eventually filled by Justice Elena Kagan. According to Goldstein,

“Judge Garland has not been called upon to decide many civil-rights-related claims of great significance. It is difficult to label him as inclined either towards or against such claims, given that the panels on which he sat in such cases were generally unanimous…
When, however, Judge Garland participated in a divided ruling, it was generally in favor of the plaintiff…The unanimous rulings in which Judge Garland participated similarly reflect a concern that civil rights plaintiffs receive an appropriate day in Court.”

Goldstein also suggested that Judge Garland has strong views favoring deference to federal agency decisions: “In a dozen close cases in which the court divided, he sided with the agency every time.” Others have more recently suggested that he leans heavily towards enforcing decisions of the NLRB, having found in the Board’s favor in 18 of the 22 cases for which he wrote the majority opinion. At 82%, Judge Garland’s tendency of enforcing agency decisions is not far off the national average for all agency decisions, but it is significantly higher than the DC Circuit as a whole, which is far more inclined to second-guess agency decisions than its sister circuits.

The National Federation of Independent Business (NFIB), which has kept its distance from Supreme Court confirmation proceedings throughout its 73 year history, has decided to weigh in on Judge Garland at the urging of its membership. The Nation’s largest advocate for small business owners views Judge Garland as a strong ally of the regulatory bureaucracy and big labor, citing a number of examples of him siding with the NLRB, the EPA and other federal regulators. According to the NFIB, Judge Garland sided with the NLRB in all 16 of the major NLRB decisions it examined, including the D.C. Circuit’s 2009 case of Fed Ex Home Delivery v. NLRB, which overturned the NLRB’s decision that workers were employees and not independent contractors. Much to the chagrin of employers, Judge Garland’s track record strongly suggests how he would cast his vote as Justice Garland for the NLRB on some very significant issues, including the recent joint employment rulings in Browning-Ferris Industries and McDonald’s, which threaten the staffing industry and the franchise model of business with its highly controversial indirect/potential control ruling.

Pundits suggest that Judge Garland would be a “swing vote” on many issues, much like Justice Kennedy and observe that President Obama could have nominated a far more left-leaning judge like Justices Kagan and Sotomayor. However, a Justice Garland is not likely to overturn bad decisions of the NLRB or other federal regulators. While this bodes well for unions and environmentalists, it does not look nearly as promising for employers.

Even worse for employers is that the Republicans could be risking their current Senate majority by refusing to move forward with confirmation proceedings. Surely, with the prospect of even more Supreme Court vacancies in the next four years, losing the majority in the Senate and/or the Presidency to the Democrats will be far worse for employers than a Justice Garland. But, who am I to critique the Washington D.C. elite?