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posted on 17 April 2016

Garland's Scorecard: 90 Percent Against Business, 77 Percent For Regulators, EPA And Unions Undefeated

from the National Federation of Independent Business

The National Federation of Independent Business (NFIB) released its comprehensive scorecard on Supreme Court nominee Judge Merrick Garland, and the findings shatter his supporters' claim that he's a down-the-middle moderate.

Said NFIB President and CEO Juanita Duggan:

He is quantifiably biased in favor of regulatory agencies and against private sector businesses. His record speaks for itself and elevating him to the Supreme Court would put small business and the economy at great risk.

NFIB released its Scorecard on Judge Garland after having examined hundreds of cases and thousands of pages, a massive research project. In all cases involving federal agencies, the Judge ruled in their favor 77 percent of the time. On the other hand, when businesses came before the Judge they lost 90 percent of the time.

In labor cases, Garland agreed with federal agencies 79 percent of the time. Within that category, businesses lost 95 percent of those cases. Labor unions, in contrast, have an unbroken winning streak with Garland. They've won every single time.

His record is just as one-sided when it comes to environmental regulators. In those cases, Garland agreed with the agencies nine out of 10 times. Environmental groups won 62 percent of their cases before the Judge. Businesses? They're 0-11. Says Duggan:

His instinct is to rule in favor of the agencies except when they're being challenged by environmental activists for not doing enough. In 20 years, he has never once agreed with a private business in an environmental case. That's very troubling."

Duggan warned that the Supreme Court is supposed to be a check against runaway executive power. Given his record, small businesses cannot reasonably expect Judge Garland to adopt a more balanced view if he were to reach the high court.

There is nothing 'moderate' about Judge Garland's record. In most of the cases in which Garland sided with a private party, he was ruling in favor of a labor union, an environmental group, or an employee seeking some sort of punitive action against another private party, The bottom line is that private businesses are almost always a loser in Merrick Garland's court.

Garland has served as a judge on the DC Court of Appeals since 1997, where he has decided over 150 cases on regulatory issues. In those cases, he sided with private parties rarely. He ruled against commercial actors 86 times and issued seven split-decisions giving partial wins to the government and business actors. But in only six cases did he rule fully in favor of commercial actors in cases against the federal government. That amounts to a 90 percent win-rate for the government over the private sector.

Below are the findings of the NFIB Scorecard on Judge Merrick Garland. The full report can be viewed here at


Total federal agency winning percentage: 77%

90% against commercial actors: (86 Wins - 6 Losses - 7 Split Decisions)

Labor Scorecard:

  • Federal agency wins 79% of cases: (28 Wins - 7 Losses - 1 Split Decision)

    • 95% against businesses: (28 Wins - 1 Loss - 1 Split Decision)

    • 0% against unions: (0 Wins - 6 Losses)

Environmental Scorecard:

  • Federal agency wins 90% of cases: (13 Wins - 1 Loss - 1 Split Decision)

    • 100% against businesses: (11 Wins - 0 Losses)

    • 62% against environmentalists: (2 Wins - 1 Loss - 1 Split Decision)

Civil Justice Reform Scorecard:

  • Employee, Former Employee or Job Applicant wins 46% of cases:

    (15 Wins - 18 Losses - 6 Split Decisions)

    • 50% against private employers: (6 Wins - 6 Losses - 2 Split Decisions)

    • 44% against government employers: (9 Wins - 12 Losses - 4 Split Decisions)

  • Tort and consumer plaintiffs win 44% of cases:

    (8 Wins - 10 Losses - 1 Split Decision)

    • 75% against private defendants: (6 Wins - 2 Losses)

    • 25% against government defendants: (2 Wins - 7 Losses - 1 Split Decision)

Other Regulatory Scorecard:

  • Government wins 59% of Medicaid, Medicare and Social Security cases:

    (6 Wins - 4 Losses - 1 Split Decision)

  • Government wins 50% of FOIA and Privacy Act cases: (5 Wins - 5 Losses - 1 Split Decision)

  • Government wins 100% of personnel and government contracting cases:

    (6 Wins - 0 Losses)

  • Government wins 78% of all other regulatory cases:

    (58 Wins - 13 Losses - 8 Split Decisions)

Federalism Scorecard:

  • Government wins 100% of Commerce Clause cases: (2 Wins - 0 Losses)

Federal Agency Scorecard:

  • NLRB wins 78% of cases: (19 Wins - 5 Losses - 1 Split Decision)

    • 98% against businesses: (19 Wins - 0 Losses - 1 Split Decision)

    • 0% against unions: (0 Wins - 5 Losses)

  • DOL (including OSHA) wins 87% of cases: (8 Wins - 2 Losses)

    • 85% against businesses: (8 Wins - 1 Losses - 1 Split Decision)

    • 0% against unions: (0 Wins - 1 Loss)

  • EPA wins 94% of cases: (8 Wins - 0 Losses - 1 Split Decision)

    • 100% against businesses: (8 Wins - 0 Losses)

    • 50% against environmentalists: (1 Split Decision)

  • Department of Interior (including U.S. Fish & Wildlife Service) wins 66% of cases: (2 Wins - 1 Loss)

    • 100% against businesses: (1 Win - 0 Losses)

    • 50% against environmentalists: (1 Win - 1 Loss)

  • IRS wins 100% of cases: (2 Wins - 0 Losses)

  • FTC wins 100% of cases: (1 Win - 0 Losses)

  • FDA wins 88% of cases: (3 Wins - 0 Losses - 1 Split Decision)

  • FCC wins 85% of cases: (13 Wins - 1 Loss - 3 Split Decisions)

  • SEC wins 100% of cases: (6 Wins - 0 Losses)

  • USDA wins 33% of cases: (1 Win - 2 Losses)

  • HUD wins 100% of cases: (1 Win - 0 Losses)

  • Department of Justice wins 100% of cases: (2 Wins - 0 Losses)

  • Nuclear Regulatory Commission wins 100% of cases: (3 Wins - 0 Losses)

  • Fed. Energy Reg. Comm. wins 50% of cases: (6 Wins - 6 Losses - 2 Split Decisions)

  • Dept. of Transportation wins 88% of cases: (10 Wins - 0 Losses - 3 Split Decisions)

  • Health and Human Services wins 72% of cases: (6 Wins - 2 Losses - 1 Split Decision)

  • Social Security Admin. wins 50% of cases: (1 Win - 1 Loss)

  • U.S. Postal Service wins 75% of cases (3 Wins - 1 Loss)

  • Copyright Royalty Board wins 100% of cases (1 Win - 0 Losses)

  • Dept. of Defense wins 75% of cases: (3 Wins - 1 Loss)

  • Fed. Labor Relations Authority wins 100% of cases: (1 Win - 0 Losses)

Concludes Duggan:

Based on our analysis we can predict with very high certainty that Judge Merrick Garland would vote consistently, if not automatically, with the anti-business block of justices currently on the Supreme Court. There's no way this kind of record can be spun.

[click here to read the full report]

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