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08/02/2018

Kennedy, Kavanaugh, and Recess Appointments
Mike Rappaport

The likely replacement of Justice Anthony Kennedy is Brett Kavanaugh. Commentators have focused on what changes to the Court’s decisions this new appointment will make. While most Supreme Court observers focus on politically charged cases, such as cases involving abortion or affirmative action, I am very much concerned with methodology and with more mundane separation of powers cases. This appointment is likely to have an important effect in this area.

Let me illustrate by focusing on what I regard as one of the worst decisions by the Supreme Court in recent years – NLRB v. Noel Canning.

There were three issues involved in Canning but for brevity’s sake I will just discuss one. The Constitution provides that “The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate.” One question about this clause is whether it allows the President to make a recess appointment (that is, a temporary appointment without the advice and consent of the Senate) if the office became vacant, not during the legislative recess, but during the legislative session. In my view, which I defended in a long article on this many years ago, the original meaning clearly indicates that the vacancy must occur during the legislative recess. In fact, the text seems pretty darn clear on this by itself.

Justice Scalia and many other originalists adopted this view. But it only secured four votes on the Supreme Court.   By contrast, the majority opinion written by Justice Breyer embraced a different view. Breyer wrote an opinion that claimed that the text was not clear and therefore the uncertainty should be resolved based on government practice.

In my view, Justice Breyer’s decision was clearly mistaken. The text’s original meaning was not unclear. The originalist evidence was clear. My suspicion that Breyer merely found the text uncertain so that he could ignore it was reinforced by Breyer’s well known opposition to originalism and his view that the Court should attempt to make the Constitution work better.

Here, Breyer’s position reminds me of one the judges from the famous Speluncian Explorers case written by Lon Fuller.  This judge (Judge Foster) was criticized by one of his colleagues on the bench as follows:

My brother Foster's penchant for finding holes in statutes reminds one of the story told by an ancient author about the man who ate a pair of shoes. Asked how he liked them, he replied that the part he liked best was the holes. That is the way my brother feels about statutes; the more holes they have in them the better he likes them. In short, he doesn't like statutes.

And so with Justice Breyer.

What does this have to do with Justice Kennedy and his retirement? Without Justice Kennedy’s vote, Justice Breyer’s opinion would have been a dissent for the four liberal nonoriginalist justices, not the majority opinion. Replacing Kennedy with Kavanaugh presumably would have changed the result in that case. Why did Kennedy choose to vote with Breyer rather than Scalia? I really don’t know. I can only speculate that much of Kennedy’s jurisprudence has involved taking constitutional text and explicating it not based on its original meaning, but based on what he believes these provisions really mean and what history has taught us that they mean. If that is your approach, then you may feel uncomfortable holding an executive branch practice unconstitutional based on the original meaning.

In the end, the replacement of Kennedy with Kavanaugh is not just important for politically important cases like Roe v. Wade. It is also important for more mundane cases where the jurisprudence of originalism and formalism is at stake.