ex cathēdrīs

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Last 5 posts by David Byron


  1. Grifter says

    Interesting little tidbit in there about how they have been denied credentialing as "Press"…

  2. says

    Once we've recentered our chakras. (We hope you know– we hope you know– that it has nothing to do with you.)

  3. says

    Recess appointments: "The Recess appointments clause empowers the president to fill any existing vacancy during any recess (intra-session or inter-session) of sufficient length." But 3- to 10-day pro forma recesses are too short. Obama loses that one.

    Majority opinion and concurrence run to 103 pages.

    The key to the operation of the recess appointments power will now be who controls the Senate calendar, which is managed by the House of Representatives. They can force the Senate to hold few longer recesses. That will effectively block recess appointments.
    by tgoldstein 10:10 AM

  4. says


    Under the standard set forth here, the Senate was in session during the pro forma sessions at issue. It said it was in session, and Senate rules make clear that the Senate retained the power to con- duct business. The Senate could have conducted business simply by passing a unanimous consent agreement. In fact, it did so; it passed a bill by unanimous consent during its pro forma session on December 23, 2011. See 2011 S. J. 924; Pub. L. 112–78. The Court will not, as the Solicitor General urges, engage in an in-depth factual appraisal of what the Senate actually did during its pro forma sessions in order to determine whether it was in recess or in session for purposes of the Recess Appointments Clause. Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.

  5. says

    Scalia complains from the bench (reading from his concurrence) that the majority needn't rely on some vague or arbitrary judgment about how long is long enough; he maintains (unsurprisingly) that the Constitution's statement is clear enough to reach the same conclusion without a penumbra. ;)

  6. says

    And now, McCullen v. Coakley. First Amendment makes the abortion clinic protest-free buffer zone illegal because the perimeter comprises public sidewalks and spaces.

    Also unanimous.

  7. David C says

    I agree with the Court that if Congress says it is in session, it is in session. As the Constitution says, "Each House may determine the Rules of its Proceedings".

    But I agree more with the concurrence than the majority. According to the Constitution, "The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." I would interpret "the Recess of the Senate" to mean *the* singular recess at the end of the session, as opposed to merely *a* recess. As it is, the Court appeared to just grab some numbers out of a hat to say that 3 days was too short but 10 days would not be.

    Also, this isn't 1796 where getting the Senate together was something that could take weeks or months. If the President truly had an appointment that couldn't wait, the Senate could easily get back to Washington in a couple of days. So any pragmatic arguments fall flat to me. The recess appointment power was not being used because the Senate was unavailable; it was being used because the Senate wasn't giving its consent to the nominees.

  8. says

    Apparently Breyer thinks that during the first and second trimesters of a 10-day sequence, the intra-session recess isn't yet viable.

  9. Steve says

    Apparently Breyer thinks that during the first and second trimesters of a 10-day sequence, the intra-session recess isn't yet viable.


  10. NI says

    So, is Ken still among the living? He hasn't been heard from in six weeks. Ken, if you're OK, give us a shout.

  11. says

    "We're not sayin' you can't force anti-union employees to ante up; we're just sayin' you can't force these anti-union employees to ante up…."

  12. says

    Hobby Lobby: "Closely held corporations cannot be required to provide contraception coverage…. RFRA applies to regulations that govern the activities of closely held for-profit corporations" (@SCOTUSblog)

  13. says

    Here is a further attempt at qualification: This decision concerns only the contraceptive mandate and should not be understood to mean that all insurance mandates, that is for blood transfusions or vaccinations, necessarily fail if they conflict with an employer's religious beliefs.

    It does not provide a shield for employers who might cloak illegal discrimination as a religious practice.
    by Amy Howe 10:19 AM

    It'll be interesting to read how they attempt to ground these apparently arbitrary distinctions in applicable principles.

  14. says

    Looks as if the criterion to diff this religiously-grounded belief from, say, illegal discrimination wrapped in a halo will be the "fundamental point… that there is no less restrictive alternative to the categorical requirement". So with contraception, there's an easy workaround; with, say, transfusion or racism, there's not (per Alito).

  15. David C says

    According to the Hobby Lobby decision:

    Under RFRA, a Government action that imposes a substantial burden on religious exercise must serve a compelling government interest, and we assume that the HHS regulations satisfy this requirement.

    They just assume this? I'm kind of surprised they didn't get into this one way or the other. I know it's a minefield, but it seems like it would be more proper to actually decide whether something IS a compelling government interest before you decide whether a regulation is narrowly tailored to that interest.

  16. says

    Perhaps the question of whether a compelling government interest is served is political. But even if it's judiciable, the majority's approach is clever (and maybe better): even if the law passes the "compelling interest" threshold, it fails the test (on a later factor).

  17. Ellomdian says

    I am curious to see the followup from Ken, I can't imagine he would deny us an opinion on the courts opinion, especially with Ginsburg's III-C-1…

    Not a fan of the decision at all, but at least they (appear) to have kept it above-board in relation to 1st amendment expression; looks like this is entirely a result of their interpretation of the RFRA (although I would really like to learn more about the "Restoration" part of that acronym…)

  18. twency says

    Ellomdian, here's the New York Times' explanation of the "Restoration" part of that acronym:

    "Congress Defends Religious Freedom

    Published: October 25, 1993

    Three years ago the Supreme Court threw away decades of precedent and watered down the religious liberty of all Americans. In a case involving the religious use of peyote by American Indians, the Court declared that states could criminalize all consumption of the substance without considering their laws' impact on the free exercise of religion.

    By radically changing the ground rules for deciding claims of religious liberty, the Court alarmed organized religion, civil liberties organizations of all stripes and Senators as different in outlook as Edward Kennedy of Massachusetts and Orrin Hatch of Utah. The House has passed a bill aimed at correcting the situation and now the Senate is expected to pass it overwhelmingly.

    The Religious Freedom Restoration Act reasserts a broadly accepted American concept of giving wide latitude to religious practices that many might regard as odd or unconventional. The bill deserves passage."