Constitutional First Principles on Display: A Look Back at Oral Arguments in NLRB v. Noel Canning

By Professor Christopher Schmidt

Last week’s Supreme Court oral arguments on the President’s recess appointment power was absolutely fascinating. National Labor Relations Board v. Noel Canning might seem on the surface a rather dry, technical case. But it has potentially dramatic implications. (Here is my colleague Carolyn Shapiro’s excellent summary of the case and its possible implications.) And, as the oral arguments showed so well, the case puts on fine display some of the most fundamental of questions relating to constitutional interpretation. These questions about the relationship between text, history, and established practices often lurk in the background when the Supreme Court considers major constitutional issues, but in this case they are uniquely foregrounded.

Now, thanks to the wonder that is Oyez, we can easily listen to audio of the oral argument. Here are some of the highlights of this highly engaging session in the Supreme Court. (For a more comprehensive overview of the oral arguments, you can listen to the complete audio here or take a look at the always terrific "plain English" summary prepared by Amy Howe over at ScotusBlog.)

The action was lively right from the start of Solicitor General Donald Verilli’s argument. The first topic was whether a ruling striking down the Obama Administration’s use of the recess appointment power would require revisiting all the decisions made by recess appointees, including judges. Justice Scalia, after weighing in on this point ("You don't really think we're going to go back and rip out every decision made."), turned the discussion to the question of constitutional interpretation. He laid out what he characterized as a "stark question": "What do you do when there is a practice that … flatly contradicts a clear text of the Constitution? Which … of the two prevails?" Listen to the exchange here:

Donald B. Verrilli Jr: Now, I think the practice has to prevail, Your Honor, but I do -- and I—

Justice Antonin Scalia: So if you ignore the Constitution--

Donald B. Verrilli Jr: --But I don't think--

Justice Antonin Scalia: --often enough, its meaning changes?

Donald B. Verrilli Jr: --But, Your Honor, of course, in this situation, the meaning of the clause with respect to the timing of -- of the vacancy has been a matter of contention since the first days of the Republic.

Justice Antonin Scalia: Now, you're -- you're questioning my hypothesis.
You have to accept my hypothesis.

Donald B. Verrilli Jr: Well, I think I've answered the question accepting your hypothesis, but I think--

Justice Antonin Scalia: Let's assume that the text is clearly against you.
Should I say, oh, yes, it -- it says something else, but the practice for over 200 years has been something different and it's the practice that must prevail.

Donald B. Verrilli Jr: --Well, the practice has started with George Washington, and it has worked through the—

Justice Antonin Scalia: Yes or no?

Donald B. Verrilli Jr: --I think -- I think I've already answered that.

Justice Antonin Scalia: Does the practice prevail over the clear text--

Donald B. Verrilli Jr: The practice gives meaning to the -- the practice gives meaning to the Constitution—

Justice Antonin Scalia: --You're questioning my -- my hypothesis again.

Donald B. Verrilli Jr: --No—

Justice Antonin Scalia: I am assuming a clear text of the Constitution and a practice that is -- is contrary to it.

Donald B. Verrilli Jr: --It's extremely unlikely that would arise if the text were so free of doubt. But if--

Justice Antonin Scalia: You do not want to answer my hypothesis.

Donald B. Verrilli Jr: --No, I am -- I am answering.
I think I already answered it once, Justice Scalia, but I'll answer it again.
The answer is I think, given this -- a practice going back to the founding of the Republic, the practice should be -- the practice should govern, but we don't have that here.
This provision has been subject to contention as to its meaning since the first days of the Republic.

It doesn’t get much starker than this: Text versus practice—which wins?

Justice Alito pressed the same stark hypothetical on counsel for Noel Canning, who came back with about a definitive a response (text wins!) as we’re going to get on this question. (Listen here.)

Justice Samuel Alito: Can I ask you a variant of the question that Justice Scalia asked General Verrilli.
Suppose we think that the language in the Constitution is perfectly clear in some respect, but that there is a 200-year-old consistent practice, agreement by the President, going back to Washington and by the Senate that the language actually means something else.
What would we do in that situation?

Noel J. Francisco: Your Honor, I think that the language has to govern.
And I would like to address the issue about the consequences of a ruling in our favor in this case.
Of course, if you were to rule on the third question presented, it wouldn't call into question any past recess appointments at all, given the unprecedented nature of the appointments at issue in this case.
But, frankly, if you ruled on the first two questions, I don't think it would be particularly disruptive in terms of calling it a question, the decisions of past appointees.
Justice Sotomayor, to take the Article III courts, for example, since 1960, there have only been four potentially improper appointments to the Article III court's recess appointments.
Each of them served approximately a year or less. Three were to the court of appeals, one to a Federal district court judge in 1981.

Justice Elena Kagan: Mr. Francisco, I'm sorry, but could we go back to Justice Alito's question, because I really have the same issue with your argument.
You know, suppose that on one -- let's say the “ happens ” argument, that yours is at least the most natural reading of the statute, at least the way we understand the word “ happen ” today, and maybe a compelled reading, but the history points so much in the other direction; and that that history brings with it a whole set of practices and traditions and ways of dealing with each other that has grown around a certain interpretation of what “ happens ” means, right?
The idea that we would wake up one fine morning and chuck all of that because all of a sudden we happened to read the clause, I mean, that at least needs to be defended.

Noel J. Francisco: Yes, Your Honor, and I believe that the relevant history actually supports us, that is the history at the time of the founding.

Justice Elena Kagan: I know, but now, you're -- you're again -- I mean, assume that there is a 200-year-old established practice, everybody has agreed to it, but the text, when you really look at it, points the other way.

Noel J. Francisco: Yes, Your Honor.
I would dispute the premises, but I will accept the premises for the purposes of the question.
The political branches of the government have no authority to give or take away the structural protections of the Constitution.
They don't exist to protect the Senate from the President or the President from the Senate.
These are liberty-protecting provisions that protect the people from the government as a whole.
So if the Constitution is quite clear as to what those structural protections are, but the political branches, assuming for the sake of argument, have conspired to deplete them, that is illegitimate, and it should be rejected by this Court.

We all look forward to learning what the Justices are going to do with this one.