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Symposium: Noel Canning and the hesitant Court

“[W]e must hesitate to upset the compromises and working arrangements that the elected branches of Government have reached,” writes Justice Stephen Breyer in his majority opinion in National Labor Relations Board v. Noel Canning.  Hesitation is not a character trait often associated with the U.S. Supreme Court these days.  But it may be the leitmotif of a highly unusual year in which the Justices repeatedly declined to adopt extreme arguments presented to them and managed to find a measure of unanimity even in cases involving the most ideologically divisive and partisan issues of the day.

Technically, the National Labor Relations Board lost in Noel Canning. By a  vote of nine to zero, the Court held that President Barack Obama’s intra-session recess appointments to the board were unconstitutional.  The majority reasoned that the Senate was not in recess when Obama made the challenged appointments.  Yet the Court rejected a far more radical argument – adopted by the U.S. Court of Appeals for the District of Columbia Circuit and promoted by Noel Canning’s lawyers – that would have significantly narrowed the presidential recess appointment power. That argument had two components: one, that the Senate was only in “recess” between formal sessions; and two, that only vacancies which arise during that formal break could be filled by recess appointments.

While that argument was a plausible reading of the text, the majority pointedly observed, “There is a great deal of history to consider here.” The majority reasoned that presidents dating back to 1867 have made recess appointments when the Senate took extended breaks during a formal session. And an even longer tradition, dating to President James Madison, permits recess appointments to fill pre-existing vacancies. “Presidents,” the majority wrote, “have made thousands of intra-session recess appointments.”

The Justices rejected another extreme argument, this one by the Solicitor General, who argued that the president could make an appointment whenever the Senate was unable to conduct business for as little as three days.  All nine Justices rejected that view, with the majority holding that only “significant interruptions of legislative business” longer than ten days will suffice to authorize recess appointments. The majority said its functionalist, pragmatic reading was necessary to fulfill the historic “purpose” of the Recess Appointments Clause of balancing executive and senatorial power.

This compromise, which voided Obama’s appointments but left the recess appointment power largely untouched, led Justice Antonin Scalia to write a concurring opinion that read like one of his blustery dissents. He thought the Court should have gone further, regardless of the long historical practice of inter-session recess appointments. There is no “adverse-possession theory of executive authority,” he wrote. Worse, perhaps, from his point of view, may have been the Court’s embrace of pragmatism instead of looking solely to “the plain, original meaning of the constitutional text.”

The Court’s hesitation to completely reconfigure the recess appointments power was in many ways typical of an atypical Term.  In a number of high-profile cases, the Justices turned away requests to stake out aggressive, new, and untested doctrinal rules.  In Bond v. United States, the Court rejected advocates’ argument that it should overturn a nearly century-old precedent broadly construing the treaty power.  In Abramski v. United States, the Court refused to reverse the longstanding interpretation of federal law and outlaw prosecutions of “straw purchasers” of firearms.  In McCullen v. Coakley, decided the same day as Noel Canning, the Court declined to overturn precedents allowing abortion clinic buffer zones, even as they found the particular buffer zone at issue in that case too large.

Hesitation marked the Term in other ways too. The Court declined to hear any Second Amendment cases, despite a split in the circuit over concealed carry licensing. The Court agreed to hear a case involving restrictions on the use of abortion-inducing drugs, then decided not to hear it. Litigants, too, were hesitant this year. Fearing what the Justices might do to disparate-impact law, a local government was convinced to settle a fair housing discrimination case.

As a result, perhaps this Term saw the realization for the first time of Chief Justice John Roberts’s vision of a moderate, minimalist court that bridges the partisan divide.  Justice Scalia’s response when asked several years ago about the then-new Chief Justice’s goal was ominous: “Good luck.” Yet this term found the Justices gravitating to the Chief Justice’s vision in a surprising number of cases in which the philosophical disagreements on the Court might well have been expected to control – from abortion and guns to environmental regulation (Utility Air Regulatory Group v. EPA and EPA v. EME Homer City Generation) and cellphone searches (Riley v. California and United States v. Wurie). There were exceptions, including the deeply split Court in McCutcheon v. FEC, striking down aggregate contribution limits.  And perhaps the cases still to come will evince more tension among the justices. So far, at least, Noel Canning seems emblematic of a Term marked by conciliation, compromise, and modesty. To that extent, at least, the Justices were willing to break with history.


Recommended Citation: Adam Winkler, Symposium: Noel Canning and the hesitant Court, SCOTUSblog (Jun. 27, 2014, 10:14 AM),