Judge Garland’s Career in Dissent

By Joe Palazzolo

President Barack Obama announces his nominee to the United States Supreme Court, Merrick Garland,European Pressphoto Agency

Supreme Court nominee Merrick Garland hasn’t often jousted with his judicial colleagues. But he has staked out differences with more liberal judges on criminal matters and parted ways with conservative judges on federal regulatory power and access to the courts.

Below are a few of his better-known dissents.

The D.C. Circuit ruled in 2009 that federal law preempted claims against contractors allegedly involved in the abuse of Iraqi detainees at Ab Ghraib prison. Judge Garland disagreed, writing,

No act of Congress and no judicial precedent bars the plaintiffs from suing the private contractors—who were neither soldiers nor civilian government employees. Indeed, the only statute to which the defendants point expressly excludes private contractors from the immunity it preserves for the government. Neither President Obama nor President Bush nor any other Executive Branch official has suggested that subjecting the contractors to tort liability for the conduct at issue here would interfere with the nation’s foreign policy or the Executive’s ability to wage war. To the contrary, the Department of Defense has repeatedly stated that employees of private contractors accompanying the Armed Forces in the field are not within the military’s chain of command, and that such contractors are subject to civil liability.

In a 2004 ruling, the D.C. Circuit held that a contractor that defrauded Amtrak could not be held liable under the False Claims Act because Amtrak isn’t a government entity. Thus, the contractor didn’t present false claims to the government. Chief Justice John Roberts, then on the appellate bench, authored the majority ruling.

Judge Garland, showing his puckish side, wrote this in dissent:

The court’s interpretation is not just inconsistent, but irreconcilable, with the legislative history of the 1986 Amendments to the False Claims Act. The court marches on nonetheless, surrounding itself on all sides with “canons” of statutory construction, which serve here as “cannons” of statutory destruction.

In a 2007 ruling, the D.C. Circuit curbed the reach of a federal bribery law, reversing the conviction of a police officer convicted of accepting gratuities in return for providing an informant with information from police databases.

Judge Garland, a former federal prosecutor, was blistering:

A guy walks into a bar. He meets a police detective, asks him to search a law-enforcement database for the names and home addresses of individuals holding certain Virginia automobile license plates, and then hands the detective some cash. He gives the detective more cash after the detective provides the information, and still more as an “incentive” to determine whether a “friend” of his has an outstanding arrest warrant in New York….For these acts, 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.

Judge Garland found himself in the minority in a high-profile dispute over First Amendment protections for press in civil lawsuits. In 2005, a three-judge panel of the D.C. Circuit ordered reporters to divulge their sources in a privacy ​lawsuit filed by nuclear scientist Wen Ho Lee, who alleged that federal agencies leaked information about him to news organizations to​ cover up its security failures at Los Alamos National Laboratory.

Judge Garland opposed the ruling, but ​the D.C. Circuit voted against rehearing the case as a full court. Protesting the decision, he warned of dire consequences.

He wrote:

The significance of the court’s decision in this case should not be underestimated. In many cases involving leaks of government information concerning identifiable individuals, those individuals will have viable claims under the Privacy Act. Moreover, the Act is not limited to private individuals. It is equally available to public officials-and to former public officials-whether they have been accused of corruption or merely of incompetence. It would, for example, be available to former officials seeking to learn who leaked the information that forced them to resign in their administration’s own Watergate.

In 1999, the D.C. Circuit held that a federal prosecutor’s misstatement of witness testimony in closing arguments warranted a new trial for Talib D. Watson, who was found guilty of cocaine possession and distribution.

Judge Garland thought the result too severe, writing this in dissent:

It may well be that in the not-too-distant future even routine criminal trials will have the benefit of real-time transcripts of witness testimony. When that day comes, disputes over testimony will be resolved by reference to transcripts rather than memories. In the meantime, however, it is inevitable that trial lawyers will suffer from innocent misrecollections. We have always relied on the self-corrective nature of the adversary system, combined with instructions from the court, to police all but the most egregious of these kinds of errors. Because I am unable to conclude that the defendant suffered substantial prejudice as a consequence of the error that occurred in this case, I respectfully dissent from the reversal of his conviction.


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