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Beneath Unanimous Supreme Court Decisions On Appointments, Abortion Lay Sharp Divisions

The U.S. Supreme Court
The U.S. Supreme Court

The U.S. Supreme Court has unanimously struck down President Barack Obama's recess appointments to the National Labor Relations Board and a Massachusetts law keeping opponents of abortion off the sidewalks within 35 feet of an abortion clinic.

But beneath the unanimity of the final results in Thursday's decisions lay sharp divisions that had Justice Antonin Scalia fuming from the bench and in print.  In fact, the more liberal justices won most of the constitutional arguments in both cases even though the decisions came down on what would generally be viewed as the more conservative side of the ledger.

Chief Justice John G. Roberts Jr.'s opinion for the court in the buffer zone case concluded that the Massachusetts law went too far when it kept anti-abortion counselors from talking to women on the
sidewalk, a place traditionally open to public debate. But Roberts, joined by the four most liberal justices, left room for states, cities and the federal government to protect women's access to abortion clinics and to shelter them from hostile, in-your-face protesters.

Antonin Scalia

That left Scalia complaining about a "separate, abridged edition of the First Amendment applicable to speech against abortion." Scalia thinks the court squelches anti-abortion speech that should be permitted. He would have thrown out recent precedents to free anti-abortion protesters to organize more vigorous confrontational protests in front of clinics.

In the recess appointments case Scalia read at length from the bench to express his disagreement with Justice Stephen Breyer's opinion for the court that would permit recess appointments when the Senate says
it is in recess. Breyer relied on historical practice to uphold that presidential power to put a nominee in place temporarily without Senate confirmation.  Such reliance on historical practice amounts to "judicial adventurism," Scalia said in a long statement from the bench. Breyer countered that Scalia's narrower interpretation of the president's recess appointment power "would render illegitimate thousands of recess appointments reaching all the way back to the founding era. "

Even though the more liberal justices won much of the constitutional argument, the president's appointments were tossed out.

The bottom line is that the president can make recess appointments but only when the the Senate agrees it is in recess.  He cannot make them during short, three-day recesses as Obama did to the NLRB.  So even though the president has recess appointment power, it is up to the Senate to say when it is in recess.  The Senate can halt many of the president's recess appointments by staying in "pro forma" session even when most members are gone from Washington.

Senate Democrats' recent decision to change Senate rules on the filibuster means that there is no longer as much pressure on Obama to use his recess appointment power to avoid Republican opposition to many of his nominees. But that would change if Republicans take back the Senate in the fall election.

The last two decisions of this court term will be announced on Monday. Both are controversial.  In the Hobby Lobby cases, corporations have challenged on religious freedom grounds the Obamacare regulations
requiring employers to provide contraceptive health coverage as part of health plans.  The second case, one from Illinois, involves a home health-care worker's claims that she has a First Amendment right not
to join a public employee union.  A win for her would be a blow to public employee unions.

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