Will Baude's recent article provides new reasons to defend sovereign immunity, and he does so on originalist grounds.
In my last post, I explored the interpretive method of the majority opinion in Town of Greece v. Galloway, describing it as traditionalist though with interesting connections to certain strands of originalism. In this post, I’ll take a look at another traditionalist decision, NLRB v. Noel Canning. As with the post on Town of Greece, the object is simply to individuate the opinion as distinctively traditionalist, not to defend it.
First, a quick recapitulation of traditionalism in constitutional interpretation. Traditionalist interpretation is concerned with perpetuating and maintaining longstanding legal practices—not only those of the Supreme Court but also of other legal and political institutions (Congress and the Executive, for example) as well as social and cultural institutions (as in the case of legislative prayer). Especially in the many cases of vague constitutional text, traditionalist interpretation takes these practices not as evidence of meaning but as constituents of meaning.
Traditionalist interpretation consequently values the practices of many different sorts of institutions. It is institutionally pluralist in this way, and certainly not focused exclusively on the Supreme Court. In fact, a traditionalist Supreme Court opinion will be deferential to the constitutional views of the coordinate branches where those views have endured for very long periods of time. It will be interested in maintaining and re-cementing those views. There is therefore a democratic component of traditionalist interpretation, though it is the democratic sensibility of the authority of long-standing practice as the accumulated wisdom of the people over time, not that of present majority inclination.
Like originalist interpretation, traditionalism is historically rather than normatively oriented, but it does not focus single-mindedly on the moment of ratification. Institutional practices before, during, and after ratification are significant. Continuity is the crucial feature. The longer those practices have endured, the less likely the Court will be, in the ordinary case, to upset them—indeed, the less likely that the practices may be to be brought before the Court at all.
Noel Canning concerned the meaning of the Recess Appointments Clause in Article II, Section 2, Clause 3, and in specific whether the phrase “during the recess” authorized the President to make appointments within congressional sessions or only between the formal sessions of Congress. The originalist arguments for the latter interpretation were powerful, but in a 5-4 majority opinion authored by Justice Breyer, the Court concluded that the President may make recess appointments while Congress is in session.
The influence of traditional institutional practice on the Court’s decision was massive. Relying on Chief Justice Marshall’s statement in McCulloch v. Maryland that the “longstanding practice of government” must inform the Court’s role to “say what the law is,” the Court emphasized that “long standing and established practice is a consideration of great weight in a proper interpretation of constitutional provisions.” In this, the Court’s first foray into interpreting Recess Appointments Clause in more than 200 years, “we must hesitate to upset the compromises and working arrangements that the elected branches of government themselves have reached.”
The relationship of originalism and traditionalism in Noel Canning is complicated. The majority opinion takes particular pains to note that the phrase “the Recess” is ambiguous; Breyer says that it isn’t clear whether the clause applies to intra-session appointments as well as inter-session appointments. If this proposition is accepted (a big if), then it is possible to say that originalism and traditionalism coexist in Noel Canning: the Court is authorized to engage in “broader interpretation” only because it first finds that the text is not decisive. Originalism continues to enjoy what some scholars have described as “lexical priority.” Of course, one might question that conclusion (as Justice Scalia did in his concurrence), and one might even wonder in a more cynical vein whether a judge inclined toward “broader interpretation” will find his way to it one way or the other.
But the particular nature of that “broader interpretation” in Noel Canning is of great interest. What makes a practice long-standing? How long and continuous is long and continuous enough? Which political virtues are supported by the traditionalist method? And how does the longstanding practice or traditionalist approach differ from living constitutionalism?
The Court did not answer any of these questions directly. But it did say that “three quarters of a century of settled practice” in which Presidents had overwhelmingly favored the broader construction and the Senate had largely acquiesced in that construction “is long enough to entitle a practice” to “great” interpretive weight. In truth, three quarters of a century does not seem a particularly long period as the traditionalist measures time, particularly when compared, for example, with the duration of the practice of legislative prayer in Town of Greece v. Galloway. Yet what seems to matter is not only temporal duration but also the preponderance or uniformity of the interpretive preference within that span.
It was also critical to the majority’s approach that though the founding-era view was not directly probative of the Court’s broader interpretation of the clause, the Court found it to be consistent with that interpretation. That finding permitted the incorporation of founding-era understandings to support the longstanding practice on which the majority relied (again, this was a point vigorously and acutely disputed by Justice Scalia). Finally, institutional dynamics and historical patterns also figure prominently in the majority opinion. It was the enduring practices of the coordinate political and more directly democratically accountable branches, not those of the Court, that demanded acknowledgment and deference.
As for the differences between traditionalism and living constitutionalism, one of the most significant is that for the former, long-standing and continuous practice fixes meaning. And it fixes it with a durable presumption, refusing to deviate from it unless there are overwhelmingly good reasons for doing so. Living constitutionalism is committed to no such thing. It prizes the evolution of meaning. A practice’s endurance or traditionalism is never a reason to perpetuate it. To the contrary: it is if anything a reason to change it.
One last point is worth noting. Sometimes it has been said in criticism of traditionalism in interpretation (but not only there) that it systematically favors partisan conservative outcomes. It is beyond the scope of this post to evaluate that claim. But it is at least some evidence against it that neither the author of nor the signatories to the majority opinion in Noel Canning are especially associated with conservative politics.
I’ll conclude this law and tradition cycle in my next and final post.