Breaking News

A “view” from the Court: Some surprises in penultimate session (UPDATED)

We’re down to four pretty big cases for decision. That means the bar section of the courtroom is filling up with attorneys who have some connection to the remaining cases.

Laurence Gold, a lion of the labor bar and former longtime general counsel of the AFL-CIO, has been coming to court each day for a couple of weeks now, waiting on Harris v. Quinn, which is important for public-employee unions, and National Labor Relations Board v. Noel Canning, which is about presidential recess appointments and will have practical import for actions of the labor panel.

Two former acting U.S. solicitors general are here, Neal K. Katyal and Walter Dellinger.  Katyal is on the brief in Harris for the home health workers who object to having to pay union agency fees.

Shortly before the start of the session, Joanna Breyer, the wife of Justice Stephen G. Breyer, arrives and takes a seat in the VIP section.

The Justices take the bench, and Chief Justice John G. Roberts Jr. announces that “Justice Breyer has the opinion of the court this morning in …”

With all the speculation about the three remaining cases from the January argument session, we expect him to say either “Harris v. Quinn” or “McCullen v. Coakley,” the case about the Massachusetts law establishing buffer zones around abortion clinics.

But the Chief Justice says “National Labor Relations Board v. Noel Canning.”  This throws all conventional speculation about the January cases overboard.

“This case requires us to answer three questions about” the Recess Appointments Clause, Justice Breyer begins. “What is the meaning of the word ‘recess’?  What does it mean for a ‘vacancy’ to ‘happen’?  And can the President make a recess appointment while the Senate is meeting three days in pro forma sessions?”

On the first, “we conclude that the phrase ‘the recess’ includes any recess of 10 or more days, whether it is an intra-session recess or an inter-session recess,” he says.  We don’t know the breakdown yet, but Breyer said the history “supports our interpretation.”

“Before the Civil War, Congress took no significant intra-session recesses,” he says.  “So it is not surprising that there were no intra-session recess appointments made during that time.  But as intra-session breaks began to grow longer, and inter-session breaks began to grow shorter, Presidents began to make intra-session appointments.”

These have included thousands since the end of World War II, Breyer says, including Dwight Eisenhower as a major general and Dean Acheson as undersecretary of state.

On the second question, the purpose of the Recess Appointments Clause supports the “broader interpretation” that the President may fill vacancies that arise even before a recess.
Breyer’s opinion has given Solicitor General Donald B. Verrilli Jr. two-thirds of the loaf.  But that is all.  On the third question, Breyer says, the Senate may hold pro forma sessions to break up what would be a long recess into “a series of short breaks too brief to allow the President to make recess appointments.”

Breyer notes that Justice Antonin Scalia has filed an opinion concurring in the judgment, joined by the Chief Justice and Justices Clarence Thomas and Samuel A. Alito Jr.

It will soon be apparent that this is really a five-to-four split on the first two questions.

“We agree that the appointments at issue here violated the Constitution,” Scalia begins.  “But we disagree with the majority’s interpretation of the President’s unilateral power to make recess appointments.”

And how.  Scalia will explain for a good twenty minutes.

“Most Americans probably did not study the Recess Appointments Clause in grade school,” he says, getting some nods of agreement around the courtroom.  “But most of us did learn in grade school that the Constitution created a system of checks and balances among the three branches of government.”

One important check is the Senate’s advice-and-consent role, he says. “To many presidents, however, the need to get their appointments approved by a fractious or hostile Senate has seemed like an unreasonable burden.  So presidents of both parties have increasingly turned to the Recess Appointments Clause as a means of avoiding that burden.”

He stresses the word “burden.”  Scalia’s tone is calm, not angry.

On the first question, he says, “the majority has to invent new rules for how long a recess can be before the President is allowed to make recess appointments:  A three-day break is too short. A four-to-nine day break is probably too short, unless the President can persuade a court that the situation was really urgent.  And ten days is probably long enough most of the time, although the majority isn’t really clear about that.”

“These new rules have no basis whatsoever in the Constitution,” Scalia continues.  “They are just made up.”

He will continue along that vein before saying that “all of these arguments are discussed much more fully in the opinion.”  But he’s not done yet.

“Rather than belabor them, I will conclude with a few general thoughts about what has gone wrong in today’s decision,” he says.  “For one thing, the majority practically bends over backward to ensure that recess appointments will remain a powerful weapon in the President’s arsenal.”

He notes that even Justices Ruth Bader Ginsburg and Elena Kagan, who are in the majority today, “pointed out at oral argument” that the Senate is effectively always available on short notice thanks to modern communications and transportation.

“The only remaining practical use for the recess-appointment power is the ignoble one of enabling Presidents to circumvent the Senate’s role in the appointment process,” he concludes. (There is still more, but we have to move along.)

The Chief Justice has the opinion in McCullen, filling in one more piece of the January argument puzzle.

Roberts quickly recites the key facts behind the Massachusetts buffer-zone law, noting that it was upheld by the First Circuit as a valid time, place, and manner restriction.

“We disagree, and hold that the act violates the First Amendment,” Roberts says.

While the act is content-neutral and the buffer zones serve the state’s legitimate interesting in maintaining access to reproductive health facilities, it is not narrowly tailored and it burdens more speech than is necessary to further those interests, he says.

“The buffer zones deprive petitioners of their two primary forms of communicating with patients” – leafletting and quiet counseling, he says. ”Carving out a significant segment of the public sidewalk and banning the public is a significant infringement of the First Amendment.”

“As one officer put it, a buffer zone would be so much easier,” the Chief Justice said. “Of course it would.  A painted line on the sidewalk is easy to enforce, but the prime objective of the First Amendment is not efficiency.”

With that, Roberts reveals the unexpected line-up for his majority opinion (Justices Ginsburg, Breyer, Sonia Sotomayor, and Kagan) and the surprising degree of unanimity in the outcome.

With that, Roberts is ready to make his announcement about the end of the Term.  But Marshal Pamela Talkin prematurely gavels the session to a close (perhaps because Roberts paused and looked in her direction, which normally is her cue to end the session) and begins her normal spiel.  The Chief Justice has to interrupt her.

“I’m sorry, not so fast,” Roberts says.  He quickly announces that the Court will take the bench Monday to announce all remaining decisions. Then, the marshal bangs her gavel again.

Recommended Citation: Mark Walsh, A “view” from the Court: Some surprises in penultimate session (UPDATED), SCOTUSblog (Jun. 26, 2014, 1:43 PM),