Shots Across the Bow
on Aug 17, 2006 at 2:30 pm
This article (via How Appealing) stating that Terrence Boyle won’t receive a recess appointment to the Fourth Circuit reminded me that I wanted to note one of the values of opinions respecting the denial of cert.
I previously served as co-counsel in some cases challenging the President’s recess appointment power as applied to intra-session recess appointments of Article III judges. The Supreme Court denied our cert. petition seeking review of an Eleventh Circuit opinion sustaining that power. Justice Stevens, however, wrote an opinion respecting the denial of cert., explaining that it was appropriate to deny review because the Administration had represented that the use of the power was rare. Stevens noted that the case raised a very substantial question, cautioning against “assum[ing] that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession ‘recesses.'”
So far as I know, in the time since the Stevens opinion, the President has not made any recess appointments of federal judges. No doubt, that owes in part to the armistice reached in the Senate Judiciary Committee. But there are several long-pending nominees — including Judge Boyle — who have not received recess appointments. My best bet is that Administration lawyers concluded that if the President continued to make judicial recess appointments, the Supreme Court would take up the question and potentially rule against the Administration.
Another example of such a “shot across the bow” in an opinion respecting the denial of cert. is Padilla. In that case, a three-Justice concurrence in the denial of certiorari noted that “Padilla’s claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts.” That opinion may have a similar effect on the Administration’s decisions on how to detain U.S. citizens in the war on terror.
Opinions like these obviously don’t speak for the full Court and do not have the force of law. Whether they should have any effect at all is an interesting question. But, without overstating their importance, I do think that they are an interesting phenomenon.
