On Judicial Activism

As someone who reads court decisions for a living, and then has to grapple with what they actually say, it always sets my hair on edge when someone complains of “judicial activism.” It’s such a nebulous term as to be pretty much meaningless. Most of the time its used in the press or in political debates it’s just shorthand for “the court reached a result I don’t like.” Figure out which side’s ox is being gorged and you can pretty easily figure out whether the Dems or GOPers will be waiving the judicial activism bloody shirt.

If judicial activism as a concept has any real meaning, it seems to me it has to have more to do with process than normative results. In other words, in reaching the decision it did (whatever that is), did the court go out of its way to make a bigger impact than the case warranted? Think the infamous Citizen’s United decision, which really didn’t need to reach the First Amendment issue (even if the Supreme Court, in my opinion, got that issue right).

I thought about that when the news broke Friday that the D.C. Circuit Court of Appeals had vacated several appointments to the National Labor Relations Board made by President Obama in January 2012. The appointments were made pursuant to the president’s authority to make “recess appointments” while the Senate is out of session, which last only a short amount of time. At the time of the NLRB appointments, the Senate wasn’t doing any real business, but was gaveled to order in pro forma sessions to keep from being in recess.

Such Senate chicanery isn’t a Republican invention:

The current dispute can be traced back to 2007, when Democrats took control of the Senate. Hoping to block Mr. Bush from making any more unilateral appointments, they did not formally recess before going home for Thanksgiving. Instead, they held pro forma sessions, meaning a member came into the nearly empty chamber every third day and banged the gavel. The idea was that the novel tactic would legally break up the long recess into a series of short ones believed to be too brief for recess appointments.

Senate Democrats repeated the move for the rest of the Bush presidency, and Mr. Bush did not challenge it.

Under Mr. Obama, Republicans turned the tables by using the power of the House to block the Senate from adjourning for more than three days. But last January, Mr. Obama decided to challenge the new tactic by declaring the pro forma sessions a sham and appointing the three labor board members . . .

So the issue facing the D.C. Circuit, in an appeal from a NLRB decision by Pepsi, was whether those appointments violated the Constitution. Given the facts of the case, the court could have stopped after deciding that the Senate’s sessions, whether pro forma or not, weren’t a “recess” and that the Senate, rather than the president, gets to decide when it’s in session. For what it’s worth, I think that’s the right result.

But the court did not stop there and, in fact, the court went much further. Not only did it hold that Obama’s particular appointments were invalid, but rather any appointment made in such a fashion that isn’t made between the actual sessions of Congress – i.e., in the space between one Congress ending and the other beginning – is invalid.

I agree with John Elwood over at Volokh, no den of Obama lackeys, that:

This is a very important and very broad holding–indeed, much broader than when it appeared that this case would be resolved on the President’s ability to make recess appointments when the Senate was conducting ‘pro forma’ sessions. It is also the most thorough judicial discussion of the recess appointment power.

By sweeping so broadly, the D.C. Circuit (in a ruling that conflicts with decisions in three other circuits) called into question a long standing bipartisan practice. As Elwood explains:

Intrasession recess appointments have been made fairly commonly since WWII, and have been particularly common since the Reagan Administration. UN Ambassador John Bolton and Judge William H. Pryor, Jr. are two of the more high-profile intrasession recess appointments in recent years.

Furthermore, while there was some controversy about such appointments in the 18th century, by 1823 the Attorney General had concluded that they were all right.

All of this is not to say that the D.C. Circuit, in the end, got it wrong on the broad constitutional issue. I’m hardly an expert in this area of law, so I don’t know. But in going so far and upending long-standing understandings, the court has potentially created some real issues. If the NLRB actions taken with these recess appointments are all now void, what about decisions made by other recess appointments? For that reason, I expect that this decision will not be the last work in the case.

The Constitution limits the jurisdiction of courts to “cases or controversies.” Unlike top courts in some other countries, they cannot offer advisory opinions. Only the particular case before them, and the particular issues it presents, should be resolved. In other words, there’s a good reason for courts to make decisions on as narrow a basis as possible. When they push past that line, it sounds like judicial activism to me, if anything every does.