In the current era, it’s probably impossible to find a nonpartisan choice for the Supreme Court. But if you did a national search for one, hoping to find a judge’s judge, known above all for caution and humility, there’s a good chance that you’d settle on Merrick Garland. (Disclosure: I have known Garland for many years, and we are friendly acquaintances.)
No one should doubt that in terms of the future arc of the law, replacing Antonin Scalia with Garland would greatly matter. But it’s important to see exactly why. Above all, he would be a stabilizing force on the court, promoting continuity rather than large-scale change.
An illuminating example: Texas Sen. Ted Cruz has repeatedly suggested that the individual right to bear arms “hangs in the balance” — that with another Democratic appointee, a majority of the Supreme Court would rule that the Second Amendment confers no such right. But that’s not going to happen.
Cruz is right to say that when the court recognized an individual right to bear arms in 2008, it was divided by a margin of 5-4. But Garland cares intensely about precedent, and it would be astonishing if he would want the court to reverse itself on such a fundamental question.
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Something similar can be said about the court’s recent rulings protecting property rights and religious liberty, and invalidating affirmative action programs and restrictions on commercial advertising. Because of his careful, lawyerly inclinations, Garland is unlikely to vote to overrule those rulings. (Even if he did, his vote would have little impact, because the liberals on the court generally insist on preserving precedents.)
If conservatives have nothing to fear from Garland, then liberals should beware: If he is confirmed, the court’s new liberal majority is not going to start marching off in their preferred directions. Garland himself is an incrementalist who respects democratic self-government; he is cautious about the uses of judicial authority. And outside the context of same-sex marriage, the current liberals have not shown much enthusiasm for recognizing brand-new rights, or for using the Constitution as an engine for social reform.
Replacing Scalia with Garland would nonetheless be important. Here’s why.
To the enthusiastic cheers of many people on the right, the court’s conservatives (including Scalia) have shown an occasional inclination to make significant breaks with existing law; most famously by giving broad protection to corporate campaign contributions in the Citizens United case, but also by limiting people’s right to sue government, by giving broad protection to commercial advertising, and by striking down any and all affirmative action programs.
With Garland on the court, you wouldn’t see much left-wing activism — but you would see a lot less right-wing activism, too. During the past decade, much of the energy for dramatic shifts in the law has come from Scalia and Clarence Thomas, occasionally joined by John Roberts, Samuel Alito and Anthony Kennedy. If Garland is confirmed, those shifts will be far less likely.
We live in a period in which political disagreements are routinely handed over to the courts. Whenever you think that the president is wrong, you might well cry out that he has violated the Constitution — and ask federal judges to rule accordingly. If you think that people have a right to do something (to use marijuana, to build on beachfront property, to sell obscene materials, to advertise their products), you might be convinced that the Constitution guarantees that right and hope that the Supreme Court will say so.
Garland knows the difference between a political question and a constitutional question. In an uncommonly noisy time, he’s a quiet, calming appointment — which may well be what the Supreme Court, and the nation, most need.
Cass Sunstein, a Bloomberg View columnist, is director of the Harvard Law School’s program on behavioral economics and public policy.