Merrick Garland's Less Than Liberal Landmark Case

by Emily Shire

While President Obama hasn't officially announced his replacement for Supreme Court Justice Antonin Scalia, multiple outlets are reporting that federal judge Merrick Garland is the president's first choice. Although Garland has been floated as a possible Supreme Court nominee before in 2010 (when then-Solicitor-General Elena Kagan was ultimately nominated), relatively little is known about Garland's views on hot-button social issues like abortion rights and gay marriage. However, he has had to rule on his fair share of controversial topics, and what is perhaps Garland's most famous ruling was on Guantanamo Bay detainees.

While serving on the U.S. Court of Appeals for the District of Columbia Circuit, Garland often ruled in support of Guantanamo Bay detainee policies, and "showed great deference to President George W. Bush's indefinite detentions at Guantanamo Bay, Cuba," as The Washington Post noted in 2010. In 2014, Garland was part of three-judge panel that unanimously ruled a "new policy of probing into a prisoner's groin area and alongside his clothed genitals is a reasonable security measure," as Josh Gerstein at Politico wrote.

Garland's most famous decision, though, in regards to Guantanamo Bay may be the 2003 ruling in Al Odah v. United States. In that case, Garland joined the majority opinion that Guantanamo Bay detainees were not entitled to habeas corpus, which effectively blocked them "from seeking relief in civilian courts," as Ian Millhiser at ThinkProgress noted. That ruling was overturned the next year by the Supreme Court in Rasul v. Bus h, which said that detainees are entitled to challenge their detention.

Lest one think that Garland was decidedly in the tank for Bush, some legal scholars have noted that Garland's decision in 2003 may have been more out of a desire to follow court precedence than to voice his agreement with the policies in question. As Tom Goldstein at SCOTUSBlog wrote of the ruling, "it is difficult to criticize Judge Garland or infer too much from his vote in the case: there is a significant argument that the panel's opinion was compelled by then-extant Supreme Court precedent."