Justice Breyer's Functionalism On Display In Noel Canning

Justice Breyer is the Supreme Court's resident functionalist, and that functionalism is on full display in his recent opinion for the Court in NLRB v. Noel Canning. 

Granted, some degree of functionalism is to be expected when interpreting a clause that the Framers obviously intended would serve to maintain a functioning government during "the Recess of the Senate," which in 1791 was a far lengthier period of time than today. But Justice Breyer's majority opinion goes beyond the degree of functionalism that was actually written into the Constitution. As he conceded, his was not the most "natural" reading of the clause.

Perhaps the most striking thing about the opinion is Justice Breyer's willingness to synthesize a very broad spirit-of-the-law rule (that the purpose of the clause was to allow effective federal governance) from a very narrow historical context (given the then-very-long Senate Recess, a recess appointments power was necessary). Breyer then divorces that purpose from its context, and applies the purpose to novel factual circumstances in the year 2014. 

Here are a few examples of Breyer's functionalism in action:

1. "The question is not: Did the Founders at the time think about intra-session recessess? Perhaps they did not. The question is: Did the Founders intend to restrict the scope of the Clause to the form of congressional recess then prevalent, or did they intend a broader scope permitting the Clause to apply, where appropriate, to somewhat changed circumstances?" Slip op. at 16-17.

Note: Two things about this paragraph. First, it seems plain that Congress did restrict the scope of the clause when it used the phrasing "the Recess of the Senate." Note that Congress did not use the phrase "a recess." That alternate phrasing (the indefinite article "a" and a lowercase "r") would suggest that there could be more than one recess. Second, how does Justice Breyer think that we can discern "where" a broader scope is "appropriate"? Surely, the Framers did not leave us to simply guess at what is or is not appropriate, especially when it comes to a power as significant as the appointments power, which generally is to be strictly governed by advice and consent.

2. In explaining that recesses shorter than 10 days presumptively do not fall within the ambit of the clause: "The lack of [historical] examples suggests that the recess-appointment power is not needed in that context." Id. at 20. 

Note: The scope of the clause is apparently governed by when and when not the power to appoint during a recess has historically been needed. Again, Justice Breyer treats the clause as a matter of convenience. But a question of constitutional interpretation is not generally decided based on whether a particular reading is needed. Were it otherwise, Carol Anne Bond could be prosecuted by the federal government because the Pennsylvania government was unwilling to do so, thereby creating a need. 

3. "We add the word 'presumptively' to leave open the possibility that some very unusual circumstances--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." Id. at 21.

Note: Because Justice Breyer's reading of the clause is not tethered to any textual anchor, he is free to preserve avenues for expanding the clause's scope in the event that a broader use of the recess-appointment power becomes necessary.

4. On whether the text permits his interpretation: "We believe that the Clause's language, read literally, permits, though does not naturally favor, our broader interpretation." Id. at 22.

Note: Presumably this means that the text naturally favors the dissent's reading. But because the spirit of the law demands a broader interpretation, the less natural reading is here appropriate.

5. Again on textualism: "In any event, the linguistic question here is not whether the phrase can be, but whether it must be, read more narrowly." Id. at 23 (all emphasis above is mine).

Note: When I read this, I was reminded of the Rule of Lenity in criminal cases. Except here Justice Breyer applies a rule of lenity for functionalists: If the text could conceivably allow it, interpret it in the way that favors your policy preferences.

Justice Breyer is hardly alone in the extent of his functionalism. I point out his Noel Canning opinion because it is an especially prime example of the power of functionalism in modern American jurisprudence.