Baude Discusses NLRB v Noel Canning in SCOTUSblog

Symposium: What divides the Court, and what unites it
William Baude
SCOTUSblog
June 27, 2014

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.