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?

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6 Responses

  1. Josiah Sancho says:

    First I would say that I believe the law when a Supreme Court justice died says that any vote that they were decisive on should be considered void and be reheard… assuming this, it would be within precident to nullify and make invalid previous rulings based on a change in the sitting justices. So if there were a justice who had a decisive vote that was removed based off the grounds that his very appointment was illegal and invalid they would consider his vote invalid, and thus have to change their ruling, and furthermore need to complete a retrial. If their ruling still stands, there’s no need to complete a retrial.

  2. Brett Bellmore says:

    Since such a challenge would be raised immediately, before the ‘Justice’ in question could claim his or her seat, wouldn’t the Court moot this concern by addressing the challenge before taking further cases? It’s extremely unlikely that a President would purport to make a recess appointment, only to have it challenged months later. It would probably be challenged the very same day.

  3. Brett Bellmore says:

    It occurs to me I should also point out that the result in Noel Canning was unanimous, though the reasoning wasn’t. It’s unlikely that even the current 8 person court would take kindly to a President deciding to attempt to put somebody on the Supreme court without a confirmation hearing.

  4. The appointment will be denied if those eight justices oppose. I think the decision will reply on the majority of the supporters.

  5. Joe says:

    “President deciding to attempt to put somebody on the Supreme court without a confirmation”

    Of course, the President can do that — under the opinion of the Court in Noel Canning, it just has to be done during a recess (as declared by the Senate) of at least 10 days (as a rule). Yes, it is unlikely the President would blatantly try to get around that, especially since it would only be a short term appointment anyways.

    Brett also argues the challenge would come immediately. The only party I see immediately having standing would members of the Senate and if it is claimed the Senate as a whole was denied a chance to vote, that might work. If so, I think the Supreme Court would provide an accelerated hearing to deal with it right away. Not let the justice’s vote decide anything.

    The harder question would be if a losing litigant in a 5-4 ruling challenges it. It wouldn’t be moot — if the appointment is invalid, those cases are tainted, even after the recess appointment is done. I really don’t think the President and the person appointed would put themselves in that situation — if the Senate wasn’t in recess for ten days, they wouldn’t do it. But, if the appointment is deemed illegitimate, I gather they might have to rehear cases, at least if any where she or he was the deciding vote. Just being a member of a multimember Court might taint the proceedings.

    The last part is the ability of the justices to decide the question. I don’t recall if when a recess appointment of a lower court judge was called into question if the judges who decided the matter ever served with the judges in relevant cases. But, there would be some cases the Supreme Court decides that directly affects them — such as protests on Court property. In theory, they could decide to let the lower court have the final word.

    • Brett Bellmore says:

      ” Yes, it is unlikely the President would blatantly try to get around that, especially since it would only be a short term appointment anyways.”

      Let’s see how unlikely it really is, next year, if Hillary wins, and the Republicans hold a Senate majority. I tend to think the attempt is quite likely; The cost is low, and the gains if it works very high.