In the Wall Street Journal, Jed Rubenfeld argues that if President Trump were to use the Recess Appointments Clause to engage in an end run around the Senate confirmation requirement, the Supreme Court might overturn Noel Canning, which broadly interpreted the Recess Appointment power.
After reviewing Justice Scalia’s strong originalist dissent in Noel Canning, Rubenfeld concludes:
Chief Justice John Roberts, Justice Clarence Thomas and Justice Samuel Alito all joined Scalia’s concurrence in 2014. Mr. Trump’s three appointees—Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett—pride themselves on being text-first originalists, and Scalia’s concurrence accords with this approach. Justice Ketanji Brown Jackson might also join the Scalia position if she believes Mr. Trump is improperly attempting to circumvent senatorial power.
Even Justices Sonia Sotomayor and Elena Kagan, who joined Justice Breyer’s majority opinion, might be tempted to flip the script. They could say that the Breyer findings about when a recess appointment would be legitimate were mere dicta, because these appointments weren’t.
From Rubenfeld’s mouth to God’s ears.
Unfortunately, this seems too optimistic. Noel Canning was decided by a five to four vote 10 years ago. Would the Supreme Court really overturn the precedent so quickly?
I have little doubt that Thomas, who holds a weak view of precedent, would vote to overturn Noel Canning’s egregiously wrong decision. I think Gorsuch would also be likely to vote to overturn it, since he has a relatively weak view of precedent and was not even on the Court when Noel Canning was decided. And let’s assume that Alito would also vote to overturn. That’s three votes.
What about Roberts? He has been reluctant to overturn precedents, especially where the justices are divided between conservatives and progressives. So he is by no means a certain vote. But if Jackson – who was not on the Court when Noel Canning was decided, has sometimes been sympathetic to originalism, and presumably dislikes Trump – were to vote to overturn Noel Canning, then Roberts might then join the effort. Even without Jackson's vote, Roberts likes cases that make the Supreme Court look good with elites, and acting against what might be perceived as Trump’s recess appointment excesses might do the trick.
What about Barrett? A former Scalia clerk, she might regard Noel Canning as egregious. Moreover, as a law professor, Barrett wrote an article defending a weak version of precedent on the ground that justices often seek to overturn cases because they disagree with the jurisprudential approach of the decision rather than that the decision was simple error. Barrett might view Noel Canning as nonoriginalist and therefore believe that overturning it as based on an improper jurisprudence – practice based living constitutionalism – was justified. Thus, Barrett might be willing to overturn Noel Canning.
Next is Kavanaugh. I assume that he would think Noel Canning is mistaken but his recent Rahimi concurrence embraced a practice oriented approach where the text is not clear. Since Noel Canning relies on practice, Kavanaugh might embrace it, unless he concludes that the text is unambiguous. Kavanaugh does allow room for overruling constitutional precedents when the reasoning is egregious and when doing so would not upset reliance interests too significantly. Since reliance is not a problem for recess appointments, it would seem Kavanaugh might support overruling it – but perhaps only if he believes the text is unambiguous.
Finally, the two other progressives – Kagan and Sotomayor – seem unlikely to overrule Noel Canning, even though they probably would sympathize with constraining President Trump. While Rubenfeld says they might deem Noel Canning’s constitutional interpretation of the Recess Appointments Clause to be dicta (since the Court struck the appointment down on another ground relating to pro forma sessions), the Court usually does not treat alternative grounds that took up large portions of the majority opinion to be dicta. Thus, I think Kagan and Sotomayor are unlikely to vote to overrule.
So where does that leave us? Three likely votes to overturn (Thomas, Gorsuch, Alito), three maybes (Roberts, Barrett, Kavanaugh), and one possible (Jackson). My guess is that the Court is more likely to overturn the case than not, but only slightly so. Call it a 55 to 60 percent chance of the case being overturned.
Here’s hoping.
Posted at 8:00 AM