Breyer v. Scalia at the Supreme Court

Tragedy or Triumph?

Linda Greenhouse, NYT
SEPT. 3, 2014

It’s more than two months since the Supreme Court issued its eagerly awaited decision in the recess appointments case, National Labor Relations Board v. Noel Canning. You may recall that by a vote of 9 to 0, President Obama “lost” this case, in as much as the court held that his recess appointments of three members of the labor board were unauthorized by the Constitution’s recess appointments clause.

The president had made the appointments during a monthlong Senate recess that was punctuated by momentary twice-weekly “pro forma sessions,” intended to keep the president from using his recess appointment power to fill positions that the Republicans were determined to keep empty. The court ruled that the pro forma sessions were real, not phony, sessions, and that the “recesses” between them were thus only three days long. That was too short, the court held, to count as a recess within the meaning of the recess appointments clause.

I put “lost” in quotation marks because by any objective view, this narrowly technical decision was a major victory for the president, considering the damage to presidential authority the court might have done – and came very close to doing – had it affirmed the lower court in functionally eliminating the recess appointment power altogether. Only an inside-the-Beltway commentariat, infected by a toxic politic atmosphere that obliterates all nuance, could have construed the decision as a defeat – thus enabling the Republicans’ effort to sweep the decision up into their false “presidential power grab” narrative. The unsung architect of the president’s unsung victory was Justice Stephen G. Breyer, who engaged in a head-to-head battle with his interpretive nemesis, Antonin Scalia, and came out the winner, marking the 20th anniversary of his appointment to the Supreme Court with perhaps the most important opinion of his tenure.

(More here.)