On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public meaning of the constitutional text.” Nevertheless, in Noel Canning, Justice Scalia’s argument also focused mildly on original intent—also referred to as the “old originalism” method. This Essay focuses on Justice Scalia’s concurring opinion and evaluates the historical evidence he uses. Part I summarizes Justice Scalia’s originalism arguments. Part II discusses the credibility and persuasiveness of these sources from a new-originalism perspective. Finally, Part III analyzes Justice Scalia’s historical argument and presents additional historical evidence that adds further credibility to his concurring opinion.
Krista M. Pikus,
When Congress is Away the President Shall Not Play: Justice Scalia's Concurrence in NLRB v. Noel Canning,
Mich. L. Rev. First Impressions
Available at: https://repository.law.umich.edu/mlr_fi/vol114/iss1/8