And because the Court issues decisions in order of reverse seniority, any additional opinions will not come from Alito, Sotomayor, or Kagan.
That pretty much throws out all of my predictions about who is writing in January.
Sorry for earlier typo - the vacancy does not have to arise during the recess itself. It can be an existing vacancy that gets filled.
The majority opinion in Noel Canning relies is significant part in long standing practices of the Congress and President.
This one opinion used up all of the first box, so we may only get one more.
The majority's decision is fifty-four pages including the opinion. And the concurring opinion is 49 pages. It's long enough that it is not stapled into the little booklet format that most decisions are.
The key to the operation of the recess appointments power will now be who controls the Senate calendar, which is managed by the House of Representatives. They can force the Senate to hold few longer recesses. That will effectively block recess appointments.
Sorry -- it's fifty-four pages including the appendix.
Breyer's opinion includes a long appendix listing recess appointments from the first Congress to date.
For those of you who are interested we now have almost 14K watchers on the LB waiting for lyle.
Justice Scalia is now reciting from his concurrence. Reading from a concurrence is something that doesn't happen very often; the Justices generally don't read even when they dissent.
I know a lot of you have questions about the nitty-gritty of what this decision means. Tom and Kevin have copies of the opinion and will have reactions on the live blog, but it's a very long decision. Lyle will also have coverage soon.
Scalia criticizes the majority for relying on historical practice (which he says is unclear) instead of the text of the Constitution (which he says is clear and limits recess appointments to between formal sessions).
Here is the upshot of the decision. The President can make a recess appointment without Senate confirmation when the Senate says it is in recess. But either the House or the Senate can take the Senate out of recess and force it to hold a "pro forma session" that will block any recess appointment. So while the President's recess appointment power is broad in theory, if either house of Congress is in the hands of the other party, it can be blocked.
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.
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