Noel challenged a Board order arguing three members had been improperly recessed appointed. The district of Columbia Circuit agreed and reversed the order. The Court, with four justices concurring in judgment, affirmed. The majority first rejected the argument the “the recess” in the recess appointment clause means the break between two sessions. It reasoned the phrase could also apply to breaks during a session, that longstanding practice, nearly unanimous opinion of the executive branch and muted opposition from the Senate coupled with hundreds of appointment made under this theory support allowing recess appointments during breaks. The majority held that the three day break here was too short and breaks of less than 10 days are also presumptively too short. The majority next held that vacancies do not need to arise during the recess to be filed reasoning that the phrase “vacancies that may happen” is ambiguous, that allowing recess appointments for vacancies that existed before the break in question has been the practice from at least 1810 or so and the Senate has acquiesced in the practice which also provides a mechanism to keep the executive staffed with presidential appointees. The majority held that Senate pro forma sessions are in fact sessions and not a period of recess so long as the senate retains the capacity to act and here the Senate in fact passed a law during a pro forma session. Justice Scalia, joined by Roberts, Thomas, and Alito concurred in judgment arguing that “the recess” was originally understood to mean the break between formal sessions and this understanding serves liberty by keeping the Senate involved in confirmations and keeping the president from avoiding the confirmation process. He also argued that the historical record, if relevant, supports the intersession view as intrasession appointments were not common until very recently and the Senate has objected to them. He next argued that “vacancies that may happen” was originally understood to mean vacancies that occurred during the recess not that happen to exist during the recess and that historical practice, including the 1790s attorney general’s opinion that such appointments were unconstitutional and a longstanding prohibition of payment to those appointed to positions which did not become vacant during the recess, reinforce the definition. The concurrence ends with a lamentation that the executive has been will now be able to adversely possess power thus undermining the structure of checks and balances.
McCullen challenged a Massachusetts statute which created a 35 foot buffer zone around abortion clinic entrances. The provisions were upheld by the district court and 1st Circuit under time pace and manner analysis. The Court, with 4 justices concurring in judgment, reversed. The majority held that because the statute regulated public sidewalks and streets, it was subject to first Amendment scrutiny. It next held the statute was content neutral as it was aimed at the problems of public safety and crowds in sidewalks which impedes traffic which are neutral basis or the act and the exemption for clinic workers does not allow one side to freely speak while muzzling the other as no clinic authorizes it workers to engage in abortion advocacy or similar speech are part of the employment. The majority held the statute imposed a burden on McCullen and other’s speech by preventing them from engaging in face to face communication with women going to the clinic for an abortion. And, the fixed zone burdens more speech than necessary to serve the legitimate purposes because Massachusetts could pass target statutes against blocking clinic access, granting police authority to disperse crowds or seek injunctive relief and the problems identified by Massachusetts to justify the buffer zone only applied to one location for a short period once a week. Thus, the statewide imposition of buffer zones was too broad particular as there had been no prosecutions under a prior statute now argued to be inadequate and no injunctions had been sought in 20 years or so. Justice Scalia, joined by Kennedy and Thomas, concurred in judgment arguing that the statute is content based as it is aimed at antiabortion speech and the protection of people from views they do not want to hear cannot justify suppressing speech. He also argued that the employee exemption demonstrated that pro-abortion speech is favored and thus the statute as a whole is unconstitutional viewpoint discrimination. Justice Alito concurred in judgment arguing that the statute is viewpoint discriminatory by favoring clinic employee speech over antiabortion protester speech and also that the statute burdens too much speech.