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Symposium: What divides the Court, and what unites it

For those who care primarily about partisan politics, labor law, or the narrative of executive overreach, the Court’s decision yesterday in National Labor Relations Board v. Noel Canning is a unanimous one.  But for those who care primarily about constitutional interpretation, history, or originalism, the case represents a deep divide.  Or at least it seems to.

There are only two opinions in Noel Canning, yet they total 108 pages (91 without the syllabus or appendices).  The majority opinion, written by Justice Stephen Breyer, invalidated the appointments only because of the Senate’s pro forma sessions, to which the Court gives some deference.  The majority could have stopped there, but it did not, instead choosing to resolve the much broader questions that had split the lower courts:  What counts as a “recess” under the clause, and when does a vacancy “happen”?  On both questions, the majority gave the executive branch a big victory, endorsing modern practice despite arguments from text, structure, and original meaning.  Meanwhile, the concurring opinion, written by Justice Scalia, is in substance a dissent with respect to the broader questions.  Justice Scalia announced the opinion from the bench this morning, as Justices usually do with strong dissents.  And the members of the concurrence did not join a single word of the majority opinion.  (In his other concurring opinion yesterday Scalia wrote: “I prefer not to take part in the assembling of an apparent but specious unanimity.”)

The substance of the disagreement between the two groups is a subject of great interest to constitutional law scholars, especially in separation-of-powers cases.  When should the Court invalidate longstanding practices in the political branches?  Can subsequent practice trump the text or its original meaning?  The debate is retread over and over, with radical originalist types arguing that substantial aspects of our current legal regime should be dismantled, and radical pragmatist types arguing that the constitutional text is largely irrelevant today.

Parts of yesterday’s opinion read like yet another retread, with a contentious victory of the pragmatists over the originalists.  Justice Breyer noted that his view of the clause “is reinforced by centuries of history, which we are hesitant to disturb,” and that “Justice Scalia would render illegitimate thousands of recess appointments reaching all the way back to the founding era.”  He concludes: “we interpret the Constitution in light of its text, purposes, and ‘our whole experience’ as a Nation.  And we look to the actual practice of Government to inform our interpretation.”  Justice Scalia accused the majority of “sweep[ing] away the key textual limitations on the recess-appointment power,” and of allowing “the Executive [to] accumulate power through adverse possession.”

Justice Scalia also made the methodological stakes explicit:

“The real tragedy of today’s decision …. is the damage done to our separation-of-powers jurisprudence more generally.  … The Court’s embrace of the adverse-possession theory of executive power (a characterization the majority resists but does not refute) will be cited in diverse contexts, including those presently unimagined, and will have the effect of aggrandizing the Presidency beyond its constitutional bounds and undermining respect for the separation of powers.”

On the surface, the opinions appear to reflect an irreconcilable split in our current legal culture, and a victory for stability against constitutional textualism or originalism.

But I think, thankfully, that the appearance is illusory.  For all that the opinions disagree strongly about how to read the Clause and what its purpose was, they actually do agree — at least in theory — about the role of the text and its original meaning.  Justice Scalia accuses the majority of letting modern practice trump the “clear text.”  And at oral argument, Solicitor General Don Verrilli did assert that a longstanding practice trumps the clear text.  But the majority, to its credit, never does.

Rather, the majority *first* concludes that the text is “ambiguous,” looking to the text and structure of the Consttution and evidence of its original meaning.  It claims that its construction is permissible because “the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purposes, where doing so is consistent with the Clause’s language.”  It points to Madison’s views about how practice could “liquidate and settle the meaning” of ambiguous clauses (and I believe it is the first Supreme Court opinion to do so).  But again, it recognizes that for such liquidation to be permitted, “[t]he question is whether the Clause is ambiguous.”  In other words, the majority feels the need to fight its way free from the text — to demonstrate a real ambiguity — before it can turn to subsequent practice.

Similarly, Justice Scalia agrees that when there is “an unclear text and clear practice,” the practice controls.  That is an agreement in principle with the majority.  To be sure, for those of us who have immersed ourselves in the text, history, and purpose of the clause, it may feel like the lower-order disagreement is far more important than the higher-order agreement.  But in the long run, from an interpretive point of view, the higher-order agreement is the one more likely to be remembered.


Stepping back from the question of interpretive methodology and into a narrower role as critic, I cannot resist making two other observations about the awkwardness of the majority opinion.

First, because Justice Breyer rejects the textual/original limits on the recess appointment power, he is forced to come up with some other dividing line to explain when a break is too short to count as a constitutional recess.  (Almost everybody agrees that it would be absurd to read the Constitution in a way that let presidents make appointments in the middle of the night, or even over a weekend).  He comes up with two: “A 3-day recess would be too short.”  That is a hard limit, with no apparent exceptions.  But then there is a second limit: “a recess of more than 3 days but less than 10 days is presumptively too short” but maybe “some very unusual circumstance– a national catastrophe, for instance” could justify an exception.

Since the majority has fought its way free from the text, these numbers are fairly arbitrary.  The three-day limit has the virtue of matching the three-day requirement in the Adjournments Clause (which limits the Senate’s ability to adjourn without House consent), but it is not at all clear why the Adjournments Clause applies to the Recess Appointments Clause.  The real virtue of the number three, from the executive’s point of view, is that it is the shortest plausible number that allows them to solve “the nights and weekends problem,” which is likely why the Solicitor General conceded it at argument.

The ten-day limit is derived from “historical practice,” and therefore from the accident of when the case happens to have been brought.  As Michael Rappaport has chronicled, the executive branch has made recess appointments during shorter and shorter periods as time goes on.  Had the Court decided the case decades earlier, it might have picked a bigger number.  Had it decided the case decades later, it might have picked a smaller one.  Either way, the Supreme Court’s imposition of a ten-day limit has a whiff of magic.  (Why not, say, fourteen days?  Or thirty or sixty, as Professor Rappaport has suggested?)

Second, how long do these recess appointments last?  The Recess Appointments Clause says that the appointments last “until the end of [the Senate’s] next session.”  Under the original view of the clause, the timeline was divided neatly into formal sessions and formal inter-session recesses.  Any appointment during a recess would last until the end of the session that followed it.  But once one recognizes informal intra-session recesses, does one do the same thing for sessions, thus cutting the calendar into a series of shorter sessions (and hence, much shorter recess appointments)?  The opinion seems to say no, discussing the possibility that appointments would last for up to two years.  Yet later on, when discussing the Senate’s pro forma sessions, it says “we find that the pro forma sessions were *sessions* for purposes of the Clause.”  If that were literally true, then an appointment would end the next time Congress holds a one-day pro-forma session, or any period of meeting between moderate-sized breaks.  That would mean recess appointments last for weeks or months, not years.

Presumably that’s not what the Court meant.  It meant something like: “the periods between the pro forma sessions are separate 3-day recesses for purposes of the Clause, but the sessions are not sessions for purposes of the Clause.”  But you can’t blame Justice Breyer for not wanting to put it that way.

Recommended Citation: William Baude, Symposium: What divides the Court, and what unites it, SCOTUSblog (Jun. 27, 2014, 9:33 AM),