With the death of bigot and child death penalty advocate Justice Scalia, President Obama set upon his constitutional obligation to appoint a new Justice to the Supreme Court. A number of people of color legal all-stars were discussed as likely candidates, and as late as early this morning a connection of mine in the White House said it looked like Sri Srinivasan was going to get it. That build up probably contributed considerably to how disappointed the Progressives of the Democratic Party are at the nomination of Judge Merrick Garland. With the nomination of Merrick Garland, the Obama administration and Democratic establishment have doubled down on upholding neoliberalism as the core of the party’s politics. The legal punditry must break free of the misleading categories that have long dominated our analysis, especially of the Supreme Court. Pro or anti-government; progressive or textualist; and activist or conservative all are false binaries and obfuscate the truth. Judge Garland in particular reveals a truth that the marginalized people of this country have known for centuries: the law is construed to fit the politics of the powerful.
To raise and resolve this issue before someone attacks me over it, there is one issue that Judge Garland cares about that will be liked by progressives. Judge Garland has ruled with unusual strength in two cases (Al-Fayed v. CIA, ACLU v. CIA) against the power of what are called Glomar responses to FOIA requests. Freedom of Information Act requests are meant to promote transparency through compelling the government to either disclose information or provide an adequate reasoning as to why they cannot, often around issues of jeopardizing national security. In their case, the ACLU was seeking information on the extent of drone warfare from the CIA. Rather than providing the information or saying that they cannot provide the information, the CIA issued a Glomar response, which is essentially a formal agency statement of the political classic “I can neither confirm nor deny.” Judge Garland in both instances said the CIA cannot avoid transparency in this manner. But transparency is in many ways the ultimate liberal issue – not taking a stance as to the material concerns with how the State should function, but rather how the State recognizes its own actions. Rather than attacking oppression, it attacks the veiling of oppression. And that isn’t to say that transparency is not valuable, but rather that without substantive goals attached to it there is little worth celebrating for those on the Left.
Many pundits have been saying that, while recognizing Garland as a “moderate,” he supports the decisions of government agencies. At best this is lazy journalism at its finest and at worst it is trying to reframe Clinton-style triangulation as supportive of government agencies. La. Energy v. FERC is one of the better cases to demonstrate that Garland masks expanding private corporate power over public commodities with a veneer of supporting decisions made by government agencies. Basically, without getting too much into the weeds, Louisiana Energy and Power Authority filed suit against FERC because they approved a rival company, Central Louisiana Electric Authority, application to sell electricity at market rates without an evidentiary hearing or period of comment. La. Energy is a government-owned company, so they have a particular stake in federal regulators rubber stamping private companies that will preempt their rates. Not only is this bad for La. Energy, but it is bad for many consumers like small businesses and working class people as it tends to stratify the market despite those private companies still being beholden to certain FERC regulations like continuous operation. After all, those regulations have hardly been effective at stopping private companies from engaging in misconduct – fines can easily become just another cost of doing business. When Judge Garland supports government agencies, it is because they are being good, neoliberal state actors facilitating the privatization of the commons.
The Judge’s approach to the Sherman Act reflects this underlying policy as well. “Judge Garland,” writes Jim Rossi, “favors exempting from judicial review under the Sherman Act all regulatory actions by state and local governments except for delegations of the power to restrain the market to private parties.” 40 Wake Forest L. Rev. 617, 657. Laissez-faire capitalists like Rossi try to frame this as threatening their goal of deregulation, like a spoiled child at a toy store who is mad because their parents are only buying one of the toys they wanted. If these free market zealots would stop throwing a tantrum over any and all regulation whatsoever, they would see the brilliance of Judge Garland’s chipping away strategy. Delegation of the power to restrain the market to private parties is hardly a small regulatory action: it can even be argued that it is the most important regulatory action. If you are a social democrat or socialist, you correctly view private intrusion as setting a floor, rather than a ceiling, for deregulation. When you do this with a federal agency, it is bound to pre-empt the power of more local authorities (as it did in the La. Energy case). And in capitalism, especially in a political system like the US where neither of the two major parties have any amount of independence from the wealthiest capitalists, opening the door a crack will almost inevitably lead to it getting opened further.
Judge Garland’s approach to the Sherman Act is an approach he often uses, especially with the EPA and FERC. While not as notably destructive as the kind of deregulation rulings made by conservative judges, there is a frightening implication to this strategy. By shaving down deregulation to narrow and specific provisions, Judge Garland is able to direct the course of privatization like a ship. If that sounds familiar, it is because a certain presidential candidate used that same strategy as Secretary of State. And that’s why I doubt that Judge Garland is simply a sheepdog candidate. While Judge Sri Srinivasan is not a Leftist by any means, Judge Garland fervently upholds the predominant triangulation principles that the Democrats have held to since the Clintons first implemented it during Bill’s presidency and that no other candidate for the Supreme Court demonstrated as pervasively.
So what do Leftists do if Judge Garland breaks the Senate boycott and gets Republicans to cross the aisle who recognize that he will largely support their bottom-lines? Judge Garland’s strategy is premised on the mask of staying close to the letter of the law. And most often what he has ruled on were not laws passed by Congress but rather rules formulated by federal government agencies. Those rules are often subject to public commentary and even in some cases an evidentiary hearing. Yes, they are ridiculously boring and often times require a knowledge of industry jargon. But it is worth noting that the two agencies that arguably provide the best federal protections currently available to working class people are the Environmental Protection Agency, where environmentalists regularly advocate at public hearings, and the Consumer Finance Protection Bureau, where consumer protection groups regularly advocate at public hearings ( #StopTheDebtTrap). Having radical voices at these hearings does make a difference, and perhaps more importantly it demonstrates that when someone like Judge Garland rules in the way he does, it is a subversion of rather than upholding the democratic will of the people.