Lots of mid-sized developments led to SeaWorld’s big announcement Thursday that it is putting an immediate end to its orca-breeding program. Among them were a 2012 book about “the dark side” of captive killer whales, the 2013 documentary “Blackfish,” public discomfort with the practice, and declining revenues and attendance at SeaWorld theme parks.
Less well known is the small role Supreme Court nominee Merrick Garland played in the company’s decision.
In 2014, the federal appeals court judge issued a ruling that effectively banned SeaWorld from allowing trainers to swim with orcas during performances. In a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia, of which Garland is the chief judge, upheld a regulatory safety finding against SeaWorld in the drowning of trainer Dawn Brancheau, who in 2010 was pulled underwater by an orca named Tilikum during a live performance in Orlando. “Blackfish” focused on Brancheau’s death and Tilkum’s tumultuous life in captivity.
Garland and another judge ruled that the federal Occupational Safety and Health Administration, or OSHA, correctly found that SeaWorld exposed trainers working with killer whales to “recognized hazards” and could be required to limit interactions between those trainers and the marine mammals. The third judge dissented, arguing that OSHA had overstepped into the sporting and entertainment fields.
Garland didn’t author the majority opinion, so we can’t discern exactly what he thought of the safety of SeaWorld’s orca program. But he signed onto the opinion of Judge Judith W. Rogers, who wrote that “statements by SeaWorld managers do not indicate that SeaWorld’s safety protocols and training made the killer whales safe; rather they demonstrate SeaWorld’s recognition that the killer whales interacting with trainers are dangerous.”
Another bit of trivia: The vote cast by Garland was, of course, a defeat for the attorney who had argued SeaWorld’s case. That was Eugene Scalia – the son of the late Supreme Court Justice Antonin Scalia, whose vacant seat Garland is now nominated to fill.