As we consider Justice Kennedy's successor, we should ask what a conservative judge should believe about the role of the courts.
Yesterday, the Supreme Court heard argument in the Recess Appointments Case. According to reports, the argument did not go well for the government.
As someone who has spent considerable time reading the Executive Branch’s jurisprudence in this area and felt like he was walking around in Alice’s Wonderland, it was refreshing to see the skepticism expressed by some of the Justices:
Both Justice Ginsburg and Justice Kennedy told Don Verrilli that the government’s argument – which would allow recess appointments during any break, not just the ones between sessions – needed a “limiting principle,” to prevent the president from making recess appointments even during very short breaks.
And even Justice Ruth Bader Ginsburg, who has been the leader of the Court’s liberal wing since Justice John Paul Stevens retired in 2010, observed that these days “the Senate is always available” because it can be “called back on very short notice.”
Justice Elena Kagan suggested that the clause was in fact a “historic relic,” as recess appointments are now primarily deployed to deal with “congressional intransigence,” rather than emergencies. “This is not,” she noted, “the horse and buggy era anymore.”
And it was interesting to see Justice Scalia, who formerly headed the Office of Legal Counsel, appear to take a strong position in favor of the original meaning:
Justice Antonin Scalia, who places a premium on adhering the text of the Constitution as it was originally understood, left little doubt that he was not concerned about the discrepancy [between the Constitution and the practice], asking sarcastically whether, if you ignore the Constitution often enough, the meaning can change?
[The Clause] has been assumed to be ambiguous by self-interested presidents.
Of course, you can never be sure how a case is going to turn out from the argument, but it was nice to see some of the government’s arguments taken to task.