Recess Appointments for Supreme Court Justices
Here’s a puzzle I was thinking about. Suppose the President makes a recess appointment to the Supreme Court. The appointment is challenged by someone with standing who cites Noel Canning. During the pendency of the litigation, odds are that the challenged person would sit on the Court (you could conjure a scenario where there’s an adverse decision and no stay, but that seems doubtful). Suppose at the end of that process, the remaining eight Justices rule that the recess appointment was invalid. What would happen to the decisions made in which the recess Justice was the decisive vote? Moreover, wouldn’t the recess appointment likely expire before the Supreme Court could even rule? Would that make the case moot?
UPDATE: Here’s another problem. Wouldn’t all of the Justices have to recuse from deciding on the eligibility of someone that they had sat on cases with?