Today is a sad day for the United States. My favorite memory of Justice Scalia involves Halloween. I don’t know if the Supreme Court does this every year, but when I was there as a law clerk, the Supreme Court invited all the children of clerks to trick-or-treat from chambers to chambers. My kids were so excited. They dressed up and hurried off to the Court. Now, no one expects the Justices to come to those events; they are very busy people. So my wife and I told our kids not to expect to meet any of them. But that day, Justice Scalia made sure he was there to hand out treats. He was the only one. My kids (and the kids of all the other law clerks) had their picture taken with him and he took time to joke about their costumes and tell stories from when he was a boy and they really played tricks. For my kids, it was one of the highlights of the entire clerkship. I’ll always remember Justice Scalia laughing and joking with a bunch of very small people over a big bowl of candy.
Today is a day to think about Justice Scalia’s legacy. On that score, here’s a thought. A few years ago, it would have been an open question whether the President could recess appointment Justice Scalia’s replacement. If the Senate, for instance, took a short recess, could the White House appoint a temporary Justice? Today, we know that the President cannot do so without the effective consent of the Senate. After all, the Supreme Court’s Noel Canning decision from June 2014 (authored by Justice Breyer) holds that “a recess lasting less than 10 days is presumptively too short” to trigger the Recess Appointments Clause. But what did the Court mean by that “presumption”? Justice Breyer explained: “We add the word ‘presumptively’ to leave open the possibility that some very unusual circumstance—a national catastrophe, for instance, that renders the Senate unavailable but calls for an urgent response—could demand the exercise of the recess-appointment power during a shorter break.” But wait, what does “unusual circumstances” mean? What if, for example, the Senate simply refused to cooperate? Could the President make a recess appointment under the “unusual circumstances” exception?
In the Court’s answer to that question we see an example of Justice Scalia’s legacy, fittingly emerging from one of his separate writings. Again, let me quote Justice Breyer: “(It should go without saying—except that JUSTICE SCALIA compels us to say it—that political opposition in the Senate would not qualify as an unusual circumstance.)” No one knows what the President and Senate will do in the coming months regarding Justice Scalia’s now vacant seat on the Court. It may prove to be a time of “political opposition in the Senate.” But because of “JUSTICE SCALIA,” it is a safe bet that there will not be a recess appointment.
There will be countless such examples of Justice Scalia’s influence for generations to come. (And I hope they have trick-or-treating in heaven.)