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How To Judge Merrick Garland’s Fitness For The Supreme Court


A group of GOP senators is pushing to hold confirmation hearings on President Obama’s Supreme Court nominee before Obama leaves office if Donald Trump loses his bid for the presidency this November.

In March, Obama nominated D.C. Circuit Judge Merrick Garland to the current vacancy on the Supreme Court. This vacancy, of course, resulted from the untimely death of Justice Antonin Scalia, who served with distinction on the nation’s highest bench for nearly 30 years.

Attempts abound to pinpoint Garland’s stances on a range of hot-button issues. Does he read the Second Amendment as protecting an individual right to own a gun? How would he rule on issues of religious liberty?

Beyond his particular stances, other commentators have sought to understand his judicial philosophy. Doing so has fallen into the well-worn but much disputed battle lines of judicial activism versus judicial restraint. Some emphasize him as a vote for restraint—generally understood as deference to other branches’ actions. Others see an activist-in-waiting, however “moderate” such activism might seem.

Let’s Get to the Deeper Question

These debates are all needed to determine Garland’s worthiness. But an underlying concern exists that is just as, if not more, fundamental. To truly merit a place on the Supreme Court—whether for Garland or someone else—the next appointee must understand the constitutional power he (or she) exercises. This power—the judicial power—the next appointee must comprehend in its nature and constitutional exercise.

To understand the judicial power entails comprehending the Constitution’s separation of powers. The Constitution (as Justice Clarence Thomas recently argued) does not simply bestow the national government with power. Put another way: the Constitution does not see governmental power as unitary in nature.

Instead, it vests the national government with three distinct types of power: legislative, executive, and judicial. The beginning act of each of the Constitution’s first three articles is to vest one of these powers to a discrete institution: Article I vests “all legislative powers herein granted” to a Congress, Article II “the executive power” to a president, and Article III the “judicial power” to judges.

Thus, in the Constitution the vested power defines the institution, not the other way around. Each branch is constructed for the exercise of its particular delegated power. Therefore, to understand the role of the judge the next appointee must comprehend the nature and exercise of judicial power within the broader separation of powers.

Gaining this understanding is difficult. Judicial power’s nature is harder to understand than the legislative or executive powers. In the past, certain political thinkers mistook the judicial power for a subset of the executive. Judicial power looked like another means to enforce the laws. Today, both judges and commentators often mistake courts as another forum for legislative power.

This tendency, which gives rise to attacks of “legislating from the bench,” stems from the early twentieth-century movement known as legal realism. Legal realism denied the existence of a distinct judicial power, saying that judges brought their own wills—and thus lawmaking—to their decisions. They therefore served, in essence, as another legislature with lifetime terms.

The True Nature of Judicial Power

Despite these confusions, the Constitution asserts a distinct judicial power that judges should exercise. Given these confusions, however, how is the next appointee to know what judicial power is?

One can understand its singular nature through its unique contribution to the rule of law. Legislative power stems from the fact that law, in order to rule, must first exist. To exist, the law must have a maker. The executive power exists because the rule of law entails obedience to that law. In an imperfect world, obedience requires enforcement.

The judicial power recognizes that law, in order to rule, needs something more. It needs interpretation and application. This necessity recognizes limits to the legislative and executive powers. Lawmaking, for one, speaks in generalities, establishing categories of legal and illegal action. All those who kill apart from self-defense act illegally, for instance. But these categories cannot be airtight. Regardless of how well-crafted the wording, persons will act in contrary fashions, each claiming to abide by the law’s demands. Does a particular act of killing fall within the law’s definition of self-defense or not?

Moreover, regardless of how much foresight a legislature exercises, exceptional circumstances will arise that it did not anticipate. Returning to self-defense, the legislature may have listed acceptable instances; but could it think of every potential situation that could arise?

For another, executing the law presents its own problems. Even when the law is clear and covers the circumstance, did the executive get the facts right? Did a violation of the law actually occur? In a particular instance it is not always clear that accused persons in fact contravened the law the executive supposedly enforced.

These difficulties present the nature of and need for the judicial power. Law cannot rule if it is not properly construed. Thus a power must exist with the ability to interpret and apply the law in particular circumstances. The judicial power fills this role in our constitutional structure.

How and When to Exercise Judicial Power

Moreover, these issues lead to how and when the Constitution allows the judicial power’s exercise. More than ambiguities arise from the difficulties inherent in lawmaking and law enforcement. They bring about concrete disputes—different persons or entities claiming competing interpretations of the law to their circumstances. These disputants can be quite diverse: individuals with each other or with the government, and governments (states and federal) between themselves.

The judicial power’s primary task is to settle particular cases presented before it.

In these disputes we find the context for the judicial power’s exercise. Some power must exist to resolve these conflicts. The Constitution declares this power in Article III, Section Two, where it states “the judicial power shall extend to…cases.” In other words, the judicial power’s interpretation and application of the law comes in the context of resolving these disputes.

The next appointee would do well to understand this point. The judicial power’s primary task is to settle particular cases presented before it. It is not, chiefly, to write a treatise on the meaning of a legal or constitutional text, much less to pontificate on the meaning of love or the sweet mystery of life.

It is through this primary task of deciding a case, and this task only, that judges exercise the judicial power. This act, like legislating and executing, upholds the rule of law. For in resolving such disputes they must apply some standard, and in a government where law rules, that standard must be the law itself.

Judicial Power and Judicial Review

This task gives rise to the much-discussed issue of judicial review—the ability of the Supreme Court to refuse to abide by legislative and executive actions. Article III, Section Two specifies that the judicial power extends not to any case but to certain ones, including “all cases…arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority….” This posits several sources of law—regular statutes, treaties, and the Constitution itself. The judge must interpret and apply them all when considering the cases before him.

This application of the fundamental law over all others is the heart of judicial review.

But what happens when a case’s disputants show that one of these laws conflicts with another? In particular, what must the judge do when one of the conflicting laws is the Constitution and the other is a regular, state, or congressionally passed statute? As always, the judge must side with one litigant’s claim and by applying the law. But if the laws conflict, then the judge can only apply one of them. Which must he choose?

The Constitution itself answers this question in Article VI, which declares the Constitution to be “the Supreme Law of the Land.” The Constitution is the source of the legislature’s power to make the law and the executive’s power to enforce (not to mention the judge’s own power to interpret and apply). It is supreme over conflicting state actions, as well.

Thus, if legislative, executive, or state actions conflict with the Constitution, the judge—to do his job and to respect the source of his own power—must apply the fundamental and supreme law over all others. This application of the fundamental law over all others is the heart of judicial review, which many in the judiciary have lost sight of and to which the next appointee must firmly adhere.

How This Applies to Garland

Thus, we see in the Constitution itself the nature of and the context for the judicial power. Nathaniel Chipman, a Federalist founder and judge, summarized this power and context well: “To the judges…it belongs to interpret all acts of the legislature, agreeably to the true principles of the constitutions…and to make an impartial application, in all cases of disputed right.”

In the coming year, let us question Garland (or any other nominee) regarding particular legal issues. Let us seek to know his judicial philosophy. But let us ask more. Let us ask whether the next Supreme Court justice understands his most fundamental task: exercising the judicial power.