108. Recess Appointments and/in the Supreme Court

President-Elect Trump is already proposing to bypass a Republican-controlled Senate to install many of his nominees. But could he also do that to fill a seat on the Supreme Court? Yes, albeit briefly.

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us. Today—November 11, 2024—marks our second birthday. And although I’ll have more to say about the past and future of the newsletter in this Thursday’s bonus issue, I just wanted to say, off the top, how grateful I am to all of you—whether you’ve been here since the beginning or are just discovering the newsletter today—for your support.

Every Monday (including federal holidays like today), I’ll be offering an update on goings-on at the Court (“On the Docket”); a longer introduction to some feature of the Court’s history, current work, or key players (“The One First ‘Long Read’”); and some Court-related trivia. If you’re enjoying the newsletter, I hope you’ll consider sharing it (and subscribing if you don’t already):

I was originally planning to spend this week’s issue looking at how the change in administration may/will affect the shape of the Supreme Court’s docket during its current term. But yesterday, President-Elect Trump floated the possibility that he will use the Recess Appointments Clause to bypass Senate confirmation for many of his nominees—insisting on social media that whoever seeks leadership positions in the Senate support such a move. (Elon Musk also tweeted that, without recess appointments, “it will take two years or more to confirm the new administration!”)

Leaving aside the remarkably crass politics of such a move (and of a senator who would so quickly yield the Senate’s most important constitutional responsibility in the name of leading a thus-marginalized body), it seems worth diving a bit deeper into what exactly the Supreme Court has said about such a move (alas, it’s almost certainly constitutional), and the harder question of whether Trump could use a similar end-run to install new justices if and when a vacancy arises (yes, but not for long). If nothing else, we’re already seeing just how much a second-term President Trump will transcend even those few political norms that constrained him during his first term.

But first, the (Court-related) news.

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On the Docket

The only rulings out of the Court last week came in Monday’s regular Order List—in which the justices agreed to take up three new cases (two of which are consolidated), and also issued their first full-Court opinion of the Term in Hamm v. Smith. I’ve written about Hamm previously—an Alabama death penalty case that the Court had relisted 23(!) times before Monday’s ruling. On Monday, rather than granting Alabama’s petition for plenary review, the justices summarily vacated the Eleventh Circuit’s ruling and remanded for the court of appeals to “clarify” which of two readings of its decision in Smith’s favor was the correct one—because “this Court’s ultimate assessment of any petition for certiorari by the State may depend on the basis for the Eleventh Circuit’s decision.” Justices Thomas and Gorsuch publicly noted that they would instead have granted plenary review. The headline here isn’t what the Court did (indeed, this is a textbook example of punting a case back to a lower court without doing much of anything); it’s that it took the Court this long to do it. There must have been one heck of a back-and-forth behind the scenes that eventually led to this disposition as a compromise.

The Court also heard the first three days of argument for its November sitting—which concludes with two arguments tomorrow (the Court is closed today for Veterans’ Day) and one on Wednesday. We also expect a regular Order List tomorrow at 9:30 ET, which could include new grants of review for cases to be decided later this term.

The Court is also sitting on a number of emergency applications in which we could start to see rulings this week—now that the decks are cleared of election-related disputes. This includes the immigration-related dispute I covered two weeks ago—in which Judge Barker, as expected, granted nationwide relief on the merits last week. As ever, though, it’s hard to predict which rulings we’ll get—or when. But if we get anything from the Court this week after 9:30 ET tomorrow, that’ll be it.

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The One First “Long Read”:
Recess Appointments and the Supreme Court

Although the Constitution gives the power to appoint most government officers (especially “principal” officers) to the President, it demands a role for the Senate in confirming the President’s nominees—at least largely as a check on the President’s ability to use the appointment power for cronyism, corruption, or to otherwise choose unworthy officeholders. For obvious reasons, the Senate’s “advice and consent” is harder to come by when the Senate is controlled by the party opposite to that of the sitting President. But even when the same party controls Congress’s smaller chamber and the White House, there is a long history of the Senate asserting itself against at least some of the President’s more controversial and/or unqualified nominees—including during then-President Trump’s first term. Indeed, the reluctance of some Senate Republicans to sign off on Trump’s more extreme nominees is a big reason why Trump spent so much of his first term relying upon (and, in some cases, abusing) the power to name “acting” officers under the Federal Vacancies Reform Act of 1998. Given that, no matter what happens in Pennsylvania, Trump is going to have a larger majority in the Senate come January 20 than he had at any point in his first term, it’s worth asking what it says about nominees who are too extreme and/or unqualified for even that Senate to confirm.

But there’s another way for the President to appoint officers: The Recess Appointments Clause of Article II. Per that provision, “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.”

Unlike acting officeholders (where there are both formal and informal ways in which they have less power than confirmed officers), individuals who receive recess appointments hold the office in exactly the same manner as if they had been confirmed by the Senate—albeit only until the expiration of the Senate’s next session (which, absent some unforeseen development, would be no later than January 3, 2027).

The original reason for the Recess Appointments Clause is understandable enough: At the Founding (and up until World War II), Congress was a part-time concern, and the Senate was out of session at least as much as it was in session. The Sixth Congress (1799-1801), for instance, was in session only from December 2, 1799 to May 14, 1800, and from November 17, 1800 to March 3, 1801. Even as late as the 74th Congress (which sat from 1935—37), the Senate was in session from January 3-August 26, 1935; and from January 3-June 20, 1936. Thus, the President needed the power to fill executive (and even judicial) offices when the Senate was out of session—with the constraint that those officers would hold their office only until the Senate had returned and concluded its business.

Of course, now that Congress is effectively a year-round operation, the Recess Appointments Clause has become all-but anachronistic. The last time either chamber adjourned before mid-December was 2002. The Senate instead began using “pro forma” sessions in the mid-2000s—at least partly to prevent President George W. Bush from making recess appointments. In the early 2010s, President Obama nevertheless sought to make such appointments—only to be rebuffed by the Supreme Court. In its 2014 ruling in Noel Canning v. NLRB, the Court held that “pro forma” sessions of the Senate are still “sessions” for constitutional purposes (and not recesses). But it also accepted the Justice Department’s argument that a “recess” for purposes of the Recess Appointments Clause can occur during a session of Congress, and not just between them.

Thus, under Noel Canning, so long as the Senate recesses for at least 10 days, then the President may use the Recess Appointments Clause to fill vacancies—whether those vacancies arose during that recess or earlier. And although there was no argument in Noel Canning that the Senate had adjourned for the purpose of enabling the President’s resort to the Recess Appointments Clause (indeed, I’m unaware of any example historically in which that’s why the Senate recessed),¹ I can’t see how that would matter; adjournment is adjournment, regardless of the reason why the Senate is doing it. There ought to be political consequences for the Senate so meekly surrendering one of its critical constitutional checks on the executive branch, but I’m not sure, at least under Noel Canning, that there can be constitutional consequences.

To be sure, some have suggested that this “recess so Trump can appoint whoever he wants” maneuver would be subject to the filibuster. But my own understanding of Senate rules is to the contrary: motions to adjourn are not debatable, and, thus, not subject to cloture. The only other constitutional requirement is the mandate in Article I, Section 5 that the House consent to a recess that’s longer than three days. But even if it doesn’t, Article II, Section 3 authorizes the President, “in Case of Disagreement between [the House and the Senate] with Respect to the Time of Adjournment,” to “adjourn them to such Time as he shall think proper.” Thus, even if the House didn’t acquiesce, the President could resolve the “disagreement” over adjournment unilaterally. In other words, so long as the Senate majority leader is willing to move an adjournment motion, and so long as a majority of the Senate is willing to vote in favor, nothing would stop this transparent end-run around the Senate from succeeding. Indeed, it’s possible that there are at least some senators who might balk at voting to confirm particular nominees who would nevertheless be willing to go along with adjournment entirely to avoid having to vote up or down on a Kash Patel, Mike Flynn, or the like. That exact institutional cowardice calculus appears to be what President-Elect Trump is counting upon.

Finally, although the commentary thus far has been focused on executive branch offices, in a world in which President Trump is able to use recess appointments at some point during his upcoming term, there is a separate and not-fully-settled question about whether that power extends to the appointment of Article III federal judges (including Supreme Court justices). The complication arises from the seeming conflict between Article III’s mandate that judges and justices shall hold their offices “during good behavior” and the mandate of the Recess Appointments Clause that their commissions would expire at the end of the next session of the Senate—regardless of how “good” their “behavior” has been.

The conflict notwithstanding, historically, there have been a number of recess-appointed federal judges—including 14(!) Supreme Court justices.² But the understanding animating all of those appointments is that they are temporary—and expire absent Senate confirmation notwithstanding the “good behavior” clause of Article III. Thus, although lower courts have rejected constitutional challenges to the recess appointments of Article III judges (most recently when the en banc Eleventh Circuit in 2004 rejected a challenge to the appointment of now-Chief Judge William Pryor), the assumption all along has been that those commissions expire when any other recess appointment does, i.e., at the end of the next session of the Senate.

The most recent example in support of this understanding also comes from 2004—when Judge Charles Pickering, who received a recess appointment to the Fifth Circuit in January of that year, resigned in December when it became clear that he was not going to be confirmed. And most famously, the second Chief Justice of the United States, John Rutledge, was rejected by the Senate, 14-10, after he had been recess-appointed by President George Washington. Rutledge, too, resigned before the Senate’s session formally ended. So both early and consistent historical practice support this understanding—that recess appointments of Article III judges and justices are constitutional, and that they are brief.

Of course, just because something is constitutional doesn’t mean it’s a good idea; the Senate even adopted a “Sense of the Senate” resolution in 1960 specifically arguing otherwise with respect to recess appointments of Supreme Court justices. After all, a recess-appointed judge or justice remains dependent upon both the President and the Senate for their permanent confirmation—and therefore lacks the independence, until that point, that Article III seeks to create/require. But here we are. And so it’s possible that Justice Potter Stewart (pictured below) will not be the last Supreme Court justice to receive a recess appointment.

The upshot of all of this is that, for better or worse, the Constitution, as interpreted by the Supreme Court in 2014, gives the President remarkably broad power to end-run the Senate’s role in appointments—so long as a majority of the Senate goes along with it. And that appointment power includes at least temporary appointments of Supreme Court justices and lower-court judges. Not for the first time, and, I fear, not for the last, we may soon be exposed to yet another critical way in which the constraint that had previously reined in abusive behavior by presidents turns out to have been a political norm, rather than a constitutional rule.

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SCOTUS Trivia: The 14 Recess-Appointed Justices

As noted above, starting with Chief Justice Rutledge, there have been 14 Supreme Court justices who were initially named to the Court via a recess appointment. What’s noteworthy about the list is that, with the exception of the three Eisenhower examples (which came in a bunch), the only recess appointment to post-date the Civil War was that of Justice Oliver Wendell Holmes in 1902.

Just for posterity, here’s the list according to John S. Castellano’s 1963 student comment:

1. Justice Thomas Johnson (1791; served until 1793)

2. Chief Justice Rutledge (1795; rejected/resigned in 1795)

3. Justice Bushrod Washington (1798; served until 1829)

4. Justice Alfred Moore (1799; served until 1804)

5. Justice Henry Livingston (1806; served until 1823)

6. Justice Smith Thompson (1823; served until 1843)

7. Justice John McKinley (1837; served until 1852)

8. Justice Levi Woodbury (1845; served until 1851)

9. Justice Benjamin Curtis (1851; served until 1857)

10. Justice David Davis (1862; served until 1877)

11. Justice Oliver Wendell Holmes (1902; served until 1932)

12. Chief Justice Earl Warren (1953; served until 1969)

13. Justice William Brennan (1956; served until 1990)

14. Justice Potter Stewart (1958; served until 1981)

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1. This is what makes Trump’s proposal unique; although plenty of modern presidents have made recess appointments, none of those cases involved the Senate adjourning in order to allow the President to bypass ordinary Senate confirmation.

2. There is some inconsistency over the number of justices who have been recess-appointed, with some sources placing the number at 12. I’m taking this total from a persuasive student comment published in 1963—which includes a table with detailed dates and supporting materials for all 14 appointments.