Politics, SCOTUS, Supreme Court

The ATL Editors’ Breaking Gchat About Noel Canning

Above the Law editors are just like you. We wake up in the morning and log into SCOTUSblog and start a group Gchat about important Supreme Court cases just like everybody else.

We figure that the world doesn’t need another “analysis” of today’s Noel Canning decision in the recess appointments case. There will be approximately five million of those coming to an internet near you.

Instead, take a look at our real-time reactions as the decision went live. If you think we sound kind of dumb on the site, wait until you see how we actually think in real time….

Here’s the transcript (edited slightly for coherence). Links and citations added after the fact.

Lat: Tuning into SCOTUSblog, btw bumped into [a famous ATL commenter] on my way into office just now. We talked about the rehab story. He has been 6 months without a drink.
Elie: I was about to ask if he was sober.
Lat: Wow, so recess appointments first, that’s a surprise – and Breyer writing.
Staci: Whoa.
Elie: YAYAYAYAY. Breyer has to mean that we’re good.
Joe: It’s narrow — basically the 3 day recess wasn’t enough but it kind of leaves open that the Senate can’t abuse this too much.
Elie: Not to sound like a Republican, but where is Breyer coming up with this “more than 3, less than 10″ rule? Like, what fu**ing penumbra did he pull that out of?
Joe: The standing practices of the Senate and President is apparently the answer.[1]
Staci: I wonder if the abortion buffer zone case is going to be like a slap in the face if they decided to unleash Noel Canning today. Because I honestly thought Noel Canning would be Monday, along with Hobby Lobby.
Elie: S**t, I missed the part where it’s unanimous.
Joe: Breyer doesn’t say it, but the mood of his opinion is “in the modern era of air travel there is no such thing as a recess.”[2]
Elie: The mood?
Lat: Re: unanimity – unanimous as to judgment, Scalia has some issues w/rationale.
Elie: That’s a good line. “The Mood of the Court is that the penumbra of practices require recess to be more than 3 days, or so, depending on traffic into Dulles.”
Joe: Check out this line: “We do not believe, however, that engaging in the kind of factual appraisal that the Solicitor General suggests is either legally or practically appropriate.”[3] The f**k?
Staci: Hahahaha. That one requires the “What is this I don’t even” meme.
Joe: “From a practical perspective, judges cannot easily determine such matters as who is, and who is not, in fact present on the floor during a particular Senate session.”[4] It’s not like they put those sessions on TV or anything. I guess the Court doesn’t get C-SPAN.
Lat: More from Twitter. Scalia reading his concurrence from the bench — unusual (even for dissents, more so for concurrence). Scalia, predictably, rails against “adverse-possession theory of executive authority,”[5] adopted by majority in Canning. Scalia concurrence in judgment joined by Roberts, Thomas, Alito.
Lat: Ha, Scalia agrees with you, Elie – Scalia accuses the majority of “judicial adventurism” is his bench statement, in making up presumptive standards about how long of a recess is too short.
Joe: It strikes me reading Breyer’s opinion that next time this comes up there will be a Democrat on the floor who will say, “I don’t see a quorum” and the Sergeant at Arms will be asked to arrest missing Senators. Which will be cool.[6]
Joe: Obama channels his inner Christie — releases statement, “Time for some traffic problems on First Street.”
Staci: But he didn’t even hear about it until he saw it on TV.
Joe: Tom [Goldstein] just said this: “Although the President can adjourn the Congress if the two houses of Congress cannot agree when to adjourn, I’m not aware of that power ever being exercised, so it’s untested.”
Interesting because that’s what happened here — Reid wanted to adjourn and Boehner kept House in session thereby keeping the Senate in session by default
Elie: I bet we could just cut and paste various lines in this Gchat and make our Canning post

Honestly, we’re as shocked as you are that we get paid to do this.



[1] NLRB v. Noel Canning, 573 U.S. ___, at 6-7 (2014).
[2] And then Scalia just goes ahead and does say it. NLRB v. Canning, 573 U.S. ___, dissent at 12 (2014).
[3] Noel Canning, 573 U.S. at 39-40.
[4] Id. at 40.
[5] Id., dissent at 2.
[6] Id. at 38 (“If any present Senator had raised a question as to the presence of a quorum, and by roll call it had become clear that a quorum was missing, the Senators in attendance could have directed the Sergeant at Arms to bring in the missing Senators.”).

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