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Law versus politics on the Supreme Court

There is a sharp divide in the Court, for instance, on the question of whether the Constitution’s meaning should remain fixed (a position most often associated with Justices Scalia and Thomas) or whether its meaning should change over time (a position that Justices Alito and Breyer, among others, have expressed sympathy with recently). Similarly, a number of justices have staked out divergent positions on whether it is more important to interpret the law to be coherent and consistent (Justices Scalia and Ginsburg, for example) or to account for the law’s practical consequences (Justices Breyer and Kennedy).

Recess Appointments and Presidential Authority

Despite the importance of recess appointments to the functioning of the federal government, the text of the Constitution itself provides little elaboration on the scope of the recess-appointments power, stating simply that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.”