“I think the unprecedented unanimity is a result of CJ Roberts pulling the liberals close. He seems to be a good lobbyist.”
Interesting, and not 180 degrees out from what I said.
But should a justice lobby, or should he persuade on legal and philosophical grounds?
“He’s been able to get them to vote with him several times on what LL calls narrowly conservative decisions.”
I wonder how he did that, and also what is meant by “narrowly conservative.”
what is meant by “narrowly conservative.” The decision on recess appointments is one example of narrowly conservative, but is not an example of the liberals voting with Roberts.
While the decision was unanimous, the justices joined in two separate opinions. Kennedy, Ginsburg, Sotomayor, and Kagan joined Breyer's opinion. (a.k.a. the opinion of the court) Roberts, Thomas, and Alito joined Scalia's opinion.
- Breyer's opinion concluded that the recess appointments were unconstitutional. Scalia's opinion joined in that judgment but for wholly different reasons than Breyer.
- Breyer said that the POTUS could make recess appointments to fill vacancies that occurred prior to the Senate's recess. Scalia said that the vacancies must have occurred during the Senate'recess.
- Breyer said that a recess includes intra-session breaks of 10 days or more. Scalia said that a recess is the adjournment of Congress between formal sessions, such as the summer recess for the month of August every year. (a.k.a. inter-session recess)
So, the narrowly conservative decision was that the appointments were unconstitutional. (We got primarily what we wanted.) A more conservative decision would not only have found the appointments to be unconstitutional, but also would have limited the appointments to vacancies that occur during a recess.