Despite Scalia, Supreme Court sends Obama a progressive message

July 1, 2014


In a decision widely perceived as a setback for President Barack Obama last week, the U.S. Supreme Court rejected the president’s recess appointment of three members of the National Labor Relations Board. Though the ruling could mean Obama never makes another recess appointment, the court’s reasoning is a substantial victory for progressives. It decisively rebuffs the wrongheaded, rigid brand of originalism that argues only the framers’ original intent is relevant in interpreting the Constitution — which conservative justices have supported for decades.

The court’s judgment was unanimous, yet the two separate opinions issued highlight the deep ideological fissure dividing the four conservative justices from the five who joined the court’s opinion. A majority of justices embraced a pragmatic reading of the Constitution, taking account of the nation’s rich experience over the past 225 years. That approach is far removed from the conservative justices’ unrealistic insistence that the Constitution is frozen in the late 18th century.

This starkly divided faux-nanimous decision, as Dahlia Lithwick labeled it in Slate, is the latest public conflict between the radical justices on the right, led by Justices Antonin Scalia and Clarence Thomas, and the more moderate traditionalists on the high bench. Scalia, as his opinion reflects, is the senior justice promoting the twin doctrines that the Constitution’s meaning was not only fixed in stone in 1789 but is also based on the literal words in the text.

True, the framers’ intended meaning, as presented in the text, is an important starting point. But it is unrealistic and ultimately destructive to insist that courts must close their eyes to the nation’s intervening experience — including the evolution of the government’s political branches, astonishing changes in technology and the needs of modern society.

U.S. President Barack Obama stands next to the new Director of the Consumer Financial Protection Bureau Richard Cordray in WashingtonFortunately, the founders themselves recognized that they were creating a document for the ages — and used broad, flexible terms that could incorporate unforeseen changes in society. A majority of the court on Thursday joined in an opinion consistent with the framers’ desire to create a lasting document.

The Constitution grants the president authority “to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”

Presidents of both parties have made recess appointments to keep the government functioning at full strength and to overcome the Senate’s often glacial confirmation pace — from George Washington, who appointed John Rutledge to the Supreme Court in 1795, to Obama, who appointed Richard Cordray to head the Consumer Financial Protection Bureau in 2012.

When the Supreme Court accepted the National Labor Relations Board case, the resolution promised to have significant impact. If the president’s recess-appointment power were curtailed, Senate Republicans could effectively block all Obama’s nominations through the filibuster. Democrats, frustrated to the breaking point by Republican obstruction, changed the Senate rules to allow a simple majority to cut off a filibuster.

This made the recess-appointment power less crucial because Democrats control the Senate and will likely muster a majority on behalf of most Obama nominees. Should Republicans gain control of the Senate, however, they will regain the power to block the  nominees.

supreme-court-perspective4In the case of the labor panel appointments, Congress had failed to act on the president’s efforts to fill the three seats necessary for a quorum. Senate Republicans filibustered all attempts to bring the nominees to a vote. Over the 2011 winter holidays, Obama would have been able to make recess appointments, but the Republican-controlled House of Representatives refused to consent to the Senate’s recess. Because the Constitution prohibits either chamber from recessing for more than three days without the consent of the other chamber, the Senate was forced to convene a pro forma session every three days between Dec. 17, 2011 and Jan. 23, 2012.

The president concluded that, despite the pro forma sessions, the Senate was functionally in recess. So on Jan. 4, 2012, Obama placed three labor board members in office and appointed Cordray to head the Consumer Financial Protection Bureau.

The new labor board members decided a dispute between Noel Canning and the union representing its employees in favor of the union. Canning took the matter to the D.C. Circuit Court of Appeals, which decided that the president had exceeded his power in appointing the board members. In a stunning decision that would have virtually eliminated the president’s power to make recess appointments, the court rejected longstanding historical practice to rule that the president could make recess appointments only during the recess between sessions of Congress and only fill vacancies that arose during that recess. The Supreme Court agreed to hear the case and added the question whether the pro forma sessions indeed kept the Senate from being in recess.

Writing for five justices, Justice Stephen Breyer rejected the sweeping rationale of the lower court. But he still struck down the appointments on the basis that the Senate had not been in a sufficiently long recess. Breyer rejected the president’s argument that the Senate was functionally in recess, noting, for example, that the Senate could still have acted by unanimous consent.

Addressing the lower court’s rationale, the majority noted that the language of the recess-appointment clause is not nearly so clear as the lower court held. Rather, Breyer wrote, the recess referred to could occur either between sessions or when Congress takes a break during a session — as when the Senate shuts down in August for a month.

Breyer acknowledged that the framers likely had no occasion to distinguish between inter- and intra-session recesses because of the difficult nature of 18th-century travel. Early Congresses generally convened for several months to do work, and then dispersed until the next session.  Now, of course, Congress sits for most of the year with periodic breaks and often has only a short break between sessions.

Rather than rest constitutional interpretation on the inability of the framers to foresee trains, planes, and automobiles, Breyer stated: “The Founders knew they were writing a document designed to apply to ever-changing circumstances over centuries.  After all, a Constitution is ‘intended to endure for ages to come,’ and must adapt itself to a future that can only be ‘seen dimly,’ if at all. We therefore think the Framers likely did intend the Clause to apply to a new circumstance that so clearly falls within its essential purpose, where doing so is consistent with the Clause’s language.”

Breyer also, quite reasonably, took into account that presidents throughout U.S. history have made intra-session appointments and filled vacancies created before the recess. He noted that the Senate had acquiesced in the practice for at least 75 years and concluded that the longstanding practice of the political branches carries great weight in interpreting the Constitution.

roberts-better1By contrast, Scalia, writing for himself, Chief Justice John Roberts and Justices Thomas and Samuel Alito, would have upheld the lower court’s sweeping interpretation that the president can make recess appointments only during inter-session recesses and only fill vacancies that arise during that recess. He would have read the Constitution as frozen in time.

According to Scalia’s reasoning, because the founders travelled by horse and carriage, the Constitution could not be read to accommodate a world of high-speed travel. Scalia’s rigidly narrow interpretation would have reduced the president’s recess-appointment power to insignificance.

Because of the ruling, the Republican House will be able to force the Senate to conduct pro forma sessions to prevent the president from making recess appointments. Because the court rejected the extreme holdings of the lower court and Scalia’s reasoning, however, the recess-appointment power, at the very least, remains in the Constitution as an option when the president’s party controls both houses of Congress.

The two opinions highlight two modes of constitutional interpretation.  The opinion for the court, supported by the more liberal justices, rests on a sensible, pragmatic reading of the Constitution that respects its text and purpose while recognizing that a founding document can only survive as long as ours has if it is flexible and can be adapted to respond to changes in society and the nation. The alternative posed by the four conservatives would elevate formalism over experience — and ensure the slow demise of our foundational document.

Sorry Justice Scalia, but the Constitution is alive.


PHOTO (Top): Supreme Court Justices Stephen Breyer (L) and Antonin Scalia testify before a House Judiciary Commercial and Administrative Law Subcommittee hearing on Capitol Hill in Washington, May 20, 2010. REUTERS/Kevin Lamarque

PHOTO (INSERT 1): President Barack Obama (L) stands next to the new director of the Consumer Financial Protection Bureau Richard Cordray in the State Dining Room at the White House in Washington, July 17, 2013. REUTERS/Larry Downing

PHOTO (Insert 2): The Supreme Court building seen in Washington, May 20, 2009. REUTERS/Molly Riley

PHOTO (Insert 3): Chief Justice John Roberts listens to arguments from George Washington University law students during a moot court competition in Washington, Feb. 9, 2006. REUTERS/Jim Young


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This article reads like an opinion. It doesn’t even try to hide the fact that the author agrees with the liberal justices, calling the conservative justices “radical” and calling the rest “moderate traditionalists” (despite the fact that the term “traditionalist” would imply that these justices were for a stricter reading of the Constitution, but that’s fine).

Every time the author discusses liberal justices, he speaks reverently and acts as if their opinions are indisputable fact. When the author talks about conservative justices, he is dirisive, arrogant and condescending. How was this article allowed past editing? It’s an insult to journalism.

Posted by NDIrish | Report as abusive

This article is so obviously biased it is laughable.

The conclusion…

“The opinion for the court, supported by the more liberal justices, rests on a sensible, pragmatic reading of the Constitution that respects its text and purpose while recognizing that a founding document can only survive as long as ours has if it is flexible and can be adapted to respond to changes in society and the nation.”

In the case of recess appointments, it is the President who decided what was a “sensible, pragmatic reading of the constitution.” In this case, as long as it fits the progressive, liberal agenda, that’s okay. I guess.

Further, in this case of instant availability, communication and high-speed travel, why is a recess appointment EVER necessary. Well, I guess as long as the executive deems it so. This would be true regardless of the party of the executive.

Posted by JR2251 | Report as abusive

The “flexibility” of the Constitution is best exhibited by its own provision for amending it. Using a “sensible, pragmatic reading” of it to avoid the long, rigorous amendment process is asking for absolute governmental chaos.

Posted by JRTerrance | Report as abusive

The majority opinion reached the right conclusion. I usually agree with the conservative Justices but in this case, historical practice properly can aid in interpreting less than clear text. The real problem here was the completely unprecedented declaration by the President that the Senate was in recess – when you do not have to be a constitutional scholar to know that one branch of government cannot declare another branch to be in recess. Underlying this is the apparent belief that the President has some sort of absolute right to have his choices confirmed. In making appointments to the White House staff, the President can choose whomever he likes – but that is not the case with statutory officers requiring Senate confirmation. The Constitutional set up is that the President may appoint only those who can obtain Senate confirmation. In the immediate NLRB case, it is hard to believe that there were not persons available who could have, perhaps easily, obtained Senate confirmation. The use of “recess” appointments to install NLRB members who could never obtain confirmation because of their ideology was a patent perversion of the Constitutional process. On that, the Court unanimously agreed.

Posted by SayHey | Report as abusive

I’m confused by the complaints that a piece presented in the Analysis and Opinion section contains opinions rather than a factual account of a news story. For me, when the very first word I see on the article is “Opinion” I kind of assume that’s what I’ll be reading.

Posted by jdr4541 | Report as abusive