Friday, March 18, 2016

How Might a Judge Garland Appointment to the Supreme Court Shape Labor and Employment Law?

As noted in a previous blog post, Justice Scalia’s sudden passing last month will have a big impact on how key labor and employment cases are decided by the U.S. Supreme Court. On March 16th, President Obama nominated Judge Merrick Garland to fill Justice Scalia’s seat. Judge Garland is currently the Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”). The D.C. Circuit is a primary forum for challenges to administrative actions, including actions by the National Labor Relations Board (“NLRB”). This means that Judge Garland’s judicial record is of particular importance to employers as we face his potential appointment to the Supreme Court. While Republicans in Congress have vowed to block any appointment prior to the upcoming Presidential election, Judge Garland has been a short-list candidate for the Supreme Court in the past and may be successful in obtaining a seat on the Court.

Judge Garland graduated from Harvard Law School in 1977 and clerked for Supreme Court Justice William J. Brennan. After spending a few years in private practice, Judge Garland joined the public sector as an Assistant U.S. Attorney for D.C. and Assistant Attorney General for the U.S. Department of Justice. In 1997, President Clinton nominated Judge Garland to the D.C. Circuit, and he was confirmed in the Senate by a vote of 76-23. He became Chief Judge of the D.C. Circuit in 2013.

Judge Garland has been labeled a “centrist” by many observers, and his past, albeit limited, rulings on labor and employment matters seem to support this sentiment. His record does not show a clear pro-employee or pro-employer bent, with rulings both for and against employers. Of notable interest, though, are Judge Garland’s apparent views on government agency power. His past opinions reflect a strong deference to administrative agencies, many of which – like the NLRB and Equal Employment Opportunity Commission (“EEOC”) - have been particularly activist in recent years.

For instance, in a 2009 dissenting opinion, Judge Garland stated that the NLRB is entitled to “considerable deference” in determining whether an employee engaged in protected, concerted activity under federal labor law. In a 2014 case, Judge Garland upheld a U.S. Department of Labor rule requiring federal contractors to give preference to disabled individuals when making hiring and promotion decisions. If appointed to the Supreme Court, this type of deference could impact future cases involving various administrative actions that make it easier for employees to unionize, such as the NLRB’s quickie election rules and the DOL’s persuader rules and overtime rules.

Despite President Obama’s choice of a Judge with a centrist reputation, support for Judge Garland has generally fallen along party lines and the Judge could very well face efforts to block or delay his confirmation hearings during this election year. Given this congressional gridlock, it is unlikely that Judge Garland’s confirmation process will be smooth. Employers should nevertheless be aware that his confirmation—or lack thereof—may impact pending and future labor and employment cases at the Supreme Court.

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