Article III and the Recess-Appointed Judge

Minnesota Law Review Vols. 106:2 onward (2021-present) Minnesota Law Review Vols. 106:2 onward (2021-present)

Article 6

Article III and the Recess-Appointed Judge Article III and the Recess-Appointed Judge

Alexander Gouzoules University of Missouri School of Law, [email protected]

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Roughly three hundred Article III judges have decided cases without life tenure, serving under short-term commissions issued through the Recess Appointments Clause. And yet the Supreme CourtÊs jurisprudence on non-Article III adjudication holds that the Constitution strictly forbids judges without life tenure from exercising the judicial power of the United States. This Article explores the tension between the nationÊs long history of temporary federal judges commissioned through the PresidentÊs recess appointment power and the CourtÊs formalist approach to adjudication by bankruptcy judges, administrative agencies, and other tribunals without lifetime appointments. It uncovers unexamined evidence that early American presidents and judges embraced a pragmatic flexibility, contradicting prevailing narratives about Article III. Indeed, contrary to claims that have appeared in the literature on recess appointments, a majority of early temporary federal judges exercised judicial power before being confirmed by the Senate.

This Article argues that the modern CourtÊs jurisprudence on non-Article III adjudication lacks a legitimizing foundation in original understanding. In the absence of that foundation, it finds little justification for the arbitrary formalism of Stern v. Marshall and associated cases. This Article also considers potential resolutions·both formalist and functionalist·to the

tension between the CourtÊs jurisprudence and the problem of judicial recess appointments.

INTRODUCTION

The Supreme CourtÊs discussions of non-Article III adjudication follow a recurring structure and tell a familiar story of judicial independence.1 That story begins with abuses by colonial admiralty judges subject to removal by the crown.2 In the Declaration of Independence, the aggrieved colonists declared that British judges were „dependent‰ on the KingÊs „[w]ill alone.‰3 Informed by this experience, the ConstitutionÊs framers immunized the federal judiciary from all political interference through ironclad lifetime appointments and salary protection.4 According to the formalist account, even „[s]light encroachments‰ on this design are intolerable.5 The Court has acknowledged three, and only three, settled exceptions where life-tenured judges have never been required: military courts, territorial courts, and (with some reluctance) systems for adjudicating public rights.6 Alternative in these

innovations not rooted

longstanding exceptions infringe upon the independence of the judiciary when they empower a term-limited judge to exercise the federal judicial power.7

This reading of Article IIIÊs Good Behavior Clause profoundly affects the bankruptcy courts, where judges serve fourteen-year terms and where adjudication does not always fit into a recognized exception.8 The Supreme Court has thus held·repeatedly·that bankruptcy judges may not exercise the judicial power of the United States by deciding non-core matters absent the consent of all parties.9 To restore its original vision for the bankruptcy courts, Congress would need to extend lifetime appointments to the nationÊs bankruptcy judges, a bridge it has repeatedly declined to cross.10

The resulting impact on the bankruptcy systemÊs original design has been substantial.11 Indeed, Anthony Casey and Joshua Macey recently observed that the concern that non-Article III bankruptcy courts wield too much power has contributed to a „new bankruptcy exceptionalism,‰ in which „broad statutory

provisions that should be interpreted by their plain meaning are narrowed to constrain the powers of bankruptcy courts.‰12

The deeply ingrained connection between the protection of life tenure and the value of judicial independence also undergirds hostility toward adjudication within administrative agencies.13 If the Framers entrusted the core power to „say what the law is‰ only to those insulated from political accountability by lifetime appointment,14 arguments against deferring to the statutory interpretations of administrative agencies naturally follow. For example, Justice Gorsuch recounted the classic story of life tenure·from colonial judges and the Declaration of Independence through to the design of Article III·when defending the end of Chevron deference.15

But to a surprising extent, the formalist account of Article III is (to borrow from the late Stephen Jay Gould) a „Just So story‰: an attempt „to explain form . . . by reconstructing history.‰16 Its narrative ignores a deep tradition of constitutional flexibility in the form of temporary, recess-appointed federal judges who have decided cases under Article III while serving on term-limited commissions.17

From the ConstitutionÊs first decade onward, more than three hundred judges and justices have held temporary commissions to Article III courts before they were considered by the

Senate for a lifetime appointment.18 Most were later confirmed for permanent status; others were not.19 Though the Supreme Court has never directly held that these appointments were constitutional,20 the Second, Ninth, and Eleventh Circuits have each upheld the power of recess-appointed judges to decide all cases while serving under temporary commissions.21

This flexible approach to the judiciary, which dates back to the Founding Era, contradicts the narrative justifications of formalist decisions such as Stern, Marathon, and other cases on non-Article III adjudication.22 Modern constitutional formalism generally purports to derive fixed rules from the original understanding of constitutional text.23 But the history of early recessjustices acting under temporary appointed

judges and

commissions complicates the legitimizing connection between modern doctrine and history.

Most temporary judges were nominated and confirmed at the end of their short-term commissions·meaning that their cases were heard and decided in the shadow of pending action by the political branches.24 Some empirical research even suggests that confirmed recess appointees exhibited altered decisionmaking patterns as compared to their behavior after confirmation.25 That research suggests political dependency, and tolerance for that dependency undermines the mythology animating Article III formalism: that an inviolable life tenure requirement is required to preserve judicial independence from the political branches and protect individual liberties from majoritarian interference.26

Absent a legitimizing connection to core concerns of the Founding Generation, the CourtÊs formalist Article III doctrine is difficult to defend. Under current law, recess appointees may exercise all judicial power of the United States, even while their positions are contingent on pending action by both the President and Congress.27 Bankruptcy judges, by virtue of serving on fourteen-year (rather than lifetime) terms, are constitutionally barred from issuing final decisions on a range of claims that Congress intended for them to decide.28 The tension between these positions is palpable.

This Article has two central aims. First·the formalist position that Article IIIÊs good-behavior requirement strictly applies to all adjudication that does not fall within classic historical exceptions has become closely associated with originalism. As Richard Fallon observed:

This Article challenges that dynamic by undermining the originalist case for the CourtÊs jurisprudence on non-Article III adjudication.

It does so with the goal of providing, in the terminology of Jack Balkin, „memory entrepreneurship‰ by uncovering littleexamined historical evidence on the actions of Founding Era recess appointees.30 In BalkinÊs words, such work can serve to „produce an altered set of meanings and inferences about the normal and the unusual,‰ as well as „the legitimate and the illegitimate.‰31 Here, the aim is a revised understanding of adjudicatory structures in the constitutional scheme, emphasizing traditions of flexibility and innovation.

Second, this Article seeks both to highlight a paradox and to propose potential resolutions to it. While this Article emphasizes functionalism at the Founding, it also acknowledges genuine concerns about judicial recess appointments. It suggests that longstanding academic arguments about the constitutional legitimacy of recess-appointed judges could be resolved by reference to one of the modern CourtÊs functionalist Article III decisions: Wellness International Network Limited v. Sharif.32 The flexible compromise it endorsed·where final adjudication by non-life tenured bankruptcy judges is permissible so long as all parties consent·could simultaneously preserve and constrain the role

of future temporary Article III judges. In the event of future judicial recess appointments, this Article recommends that preconfirmation case assignment be conditioned on party consent.

This Article proceeds in four parts. In Part I, it examines the foundational law and doctrinal stakes of judicial recess appointments. It first explains the broader recess-appointment power, then examines Article IIIÊs Good Behavior Clause, and finally analyzes the appellate decisions that have addressed the inherent tension between these provisions while upholding the constitutionality of temporary federal judges.

Part II reviews the academic literature on judicial recess appointments before turning to the historical record. Most scholars studying the issue have concluded that judicial recess appointments are constitutional, relying primarily on long historical practice.33 But a dissenting position points to a perceived absence of reported decisions by Founding-Era judges in the period between their recess appointments and their subsequent Senate confirmation.34 Academic dissenters have thus argued that early judges generally avoided the exercise of judicial power until they were issued lifetime commissions, mitigating the weight of historical evidence.35 And because Founding-Era practices receive greater deference,36 scholarly debate about early recess appointees has an outsized significance.

This Article resolves this lingering ambiguity by introducing unexamined historical evidence, as well as highlighting evidence that has been underemphasized. Significantly, by incorporating evidence from district and circuit court archives and historical newspapers, it establishes for the first time that a meaningful number of federal judges decided cases under temporary commissions in the initial twenty-five years of the republic. This work thus corrects previous efforts that relied on standard legal research databases (which do not meaningfully document the work of the early inferior courts) to reach a contrary conclusion.37

Part III builds from this revised historical account, contending that Founding Era practice provides little support for the strict formalism the Court has generally applied when policing the bounds of Article III. The Article considers and analyzes three potential resolutions: first, a retreat from the formalist doctrine articulated in Stern; second, an embrace of that doctrine in the context of judicial recess appointments; and finally, a compromise position that recess-appointed judges may constitutionally decide matters where all parties consent. Finally, it offers a few brief conclusions.

An appendix provides a histogram displaying the number of appointments by decade, demonstrating the inconsistent but longstanding use of temporary Article III judges throughout the nationÊs history.

I. THE LAW OF TEMPORARY FEDERAL JUDGES

The Recess Appointments Clause creates an exception to the general rule that the PresidentÊs choice of officers is subject to the advice and consent of the Senate.38 When the Senate is in recess and thus unavailable, presidents may fill vacancies „by granting Commissions which shall expire‰ at the end of the SenateÊs next session.39 This flexibility accommodated FoundingEra „realities of transportation and communication, and the likely need of many members to be home for planting and harvesting seasons.‰40

The Framers themselves said little about the Recess Appointments Clause.41 A rare explanation came in Federalist No. 67, where Alexander Hamilton explained that it would be „improper to oblige‰ the Senate „to be continually in session for the appointment of officers.‰42 At the same time, key vacancies would inevitably arise and need to be filled „without delay.‰43 In other words, senators were expected to be away from the capital for much of the year, while the government would be in continuous service.44 Recess appointments thus facilitated pragmatic departures from the default of senatorial participation in the selection of significant personnel.45

From the beginning, presidents used their recess-appointment power to fill a range of vacancies·commissioning ambassadors, military officers, cabinet officials, and judges·for

various reasons.46 In early periods, lower courts occasionally confronted questions about these appointments. A district court in 1868 took a narrow view of whether recess appointments may fill only vacancies that arose during a recess, rejecting a contested appointment of a U.S. attorney.47 A circuit court in 1880 reached the opposite conclusion in a similar case.48

The Supreme Court, however, did not address the Recess Appointments Clause until 2014, despite its frequent historical use.49 In NLRB v. Noel Canning, the Court invalidated President ObamaÊs appointment of Consumer Financial Protection Bureau director Rich Cordray during a three-day recess.50 Writing for five justices, Justice Breyer held that recess appointments are broadly allowed in both inter- and intra-session recesses, and that presidents may use them to fill standing vacancies that arose before the recess.51 But the Court barred recess appointments made during especially brief intra-session recesses, explaining that „there have been many thousands of recess appointments . . . [but there is not] a single example of a recess appointment made during an intra-session recess that was shorter than 10 days.‰52 Accordingly, under Noel Canning, an appointment made during a recess lasting fewer than ten

days is presumptively disallowed outside of emergency circumstances.53

Four justices wrote separately, nominally concurring but vigorously challenging the majorityÊs approach.54 Writing for the four, Justice Scalia argued for a far more restrictive reading of the clause.55 In doing so, Scalia referred to recess appointments as an „anachronism‰ whose „only remaining use is the ignoble one of enabling the President to circumvent the SenateÊs role in the appointment process.‰56 Scalia thus argued that the power should apply only during the intermission between two legislative sessions, and that it should be used to fill only vacancies that arose during those intermissions.57

Neither Noel Canning opinion was strictly formalist. The majority largely accepted historical practices that post-dated ratification, imposing a ten-day presumption ungrounded in text and only partially grounded in original understanding.58 For his part, Scalia was dismissive of the recess appointment power, grudgingly acknowledging it, but suggesting that its importance had faded.59 The case remains the Supreme CourtÊs sole decision construing the boundaries of the presidentÊs recess-appointment power. The Court has never addressed the constitutionality of recess appointments in the Article III context.60 These

appointments raise unique concerns because of separate constitutional requirements related to federal judges·and the Court has taken a more strictly formalist approach when construing those requirements.

Article IIIÊs Good Behavior and Compensation Clauses, respectively, mandate that judges who exercise the „judicial power of the United States‰ must hold office during good behavior (in other words, if not impeached and removed61) and without diminution of salary.62 Though the Good Behavior Clause does not explicitly reference lifetime appointments, most scholars understand it as specifying that federal judges hold their positions for life, so long as they are not impeached and removed.63 The legitimacy of departures from that principle is the key question dividing functionalists and formalists in this space.64

Those seeking to explain the role of lifetime appointments in the federal system·which is not followed by most state court systems65·have posited that it achieves two core goals. First, by

insulating judges from political pressure, it establishes and safeguards the judiciaryÊs status as an independent and coequal branch of government.66 Second, the requirement facilitates the protection of individual rights by shielding judges from majoritarian political accountability.67 Other, ancillary benefits have been noted as well.68

The life-tenure requirement of the Good Behavior Clause, though not textually explicit, is longstanding and firmly entrenched in modern law.69 That said, it has not always been a sacrosanct protection against removal. At two points in the nineteenth century, confirmed Article III judges lost lifetime appointments when their courts were abolished. First, JeffersonÊs Democratic Republicans abolished the „circuit judge‰ position briefly established by Federalist reformers during the Adams

administration.70 Though circuit judges had received lifetime commissions, the incoming majority repealed the act authorizing the judgesÊ positions, putting them out of a job.71

The deposed midnight judges made fleeting efforts to assert their supposedly lifetime commissions, but to no avail.72 Nor were they successful in arguing that the Compensation Clause entitled them to their continued salaries (indeed, without his salary, former federal judge Samuel Hitchcock ended up in debtorsÊ prison).73 In a subsequent letter from Chief Justice John Marshall to one deposed judge, Marshall expressed the wish that his friendÊs new enterprises would be held „really, not nominally, during good behavior.‰74

The constitutional implications were not lost on contemporaries.75 In the 1803 case Stuart v. Laird, counsel raised the

issue, arguing that Congress „may modify the courts, but they cannot destroy them, if thereby they deprive a judge of his office.‰76 But the Supreme Court, bowing to political realities, ignored that question in the resulting decision.77

A similar saga played out in 1863 with the Circuit Court of the District of Columbia. Though the exact status of that court has been disputed, its judges were commissioned with Good Behavior protection.78 Tensions between that court and the political branches developed when one of its three judges began entertaining habeas petitions from parents whose underage sons had enlisted in the Union Army.79 Merrick was suspected of Confederate sympathies,80 and Congress disbanded the court altogether, thus terminating the life tenure of Merrick and his colleagues.81

Congress replaced it with a new court, styled the Supreme Court of the District of Columbia.82 Lincoln appointed, and the Senate confirmed, four new judges deemed more loyal to the Union cause·two of whom had been members of the same Congress that abolished the original circuit court, thereby creating the vacancies they filled.83 Accordingly, both Jefferson and Lincoln

found ways to remove judges outside the impeachment process by abolishing the courts on which the judges sat.

In the modern era, however, disputes over the removal of lifetime commissioned judges are relatively rare.84 More common have been questions over the propriety of adjudicatory systems that do not involve life-tenured judges, such as bankruptcy courts and administrative agencies. In these cases, several justices of the current Court·notably Justice Gorsuch,85 Justice Alito,86 and Chief Justice Roberts87·have emphasized the lifetenure requirement and described it in absolute terms. For example, a dissent written by Justice Alito and joined by Justice Gorsuch observed that „the judicial power of the United States may be vested only in tribunals whose judges have life tenure,‰ a rule they described as having „no exception.‰88

Despite such rhetoric, federal judges without lifetime commissions have long existed in subordinate or peripheral roles alongside the justices of the Supreme Court and the judges of the inferior Article III courts.89 One example is the magistrate judge, who serves as an adjunct of the district court.90 Magistrates render final decisions in only two circumstances: cases involving petty offenses and civil cases upon consent of the parties.91 Final adjudication of petty offenses by a non-life tenured judge stands as one exception to the life-tenure norm, but the relative insignificance of such cases mitigates its impact.92

At times, Congress has also created discrete courts staffed by term-limited judges93: legislative courts that adjudicate „public rights,‰94 territorial and overseas courts,95 and military courts.96 Each of these deviations was rooted either in an „exceptional power[] bestowed upon Congress by the Constitution or by historical consensus.‰97 The Supreme Court has gradually

embraced the formalist position that no further exceptions, beyond these historically recognized ones, are allowed.98 Its opinions have typically ignored recess appointees as a further historically grounded exception.

These doctrines have led the Court to explore the outer boundaries of Article III in cases decided by the bankruptcy courts. These courts, created alongside the modern Bankruptcy Code in 1978, were designed to exercise jurisdiction not only over proceedings „arising under‰ the bankruptcy title but also over proceedings „arising in or related to‰ bankruptcy cases brought under that title.99 On its face, this grant of jurisdiction was enormously broad, potentially reaching non-bankruptcy disputes that merely „related to‰ a bankruptcy.100

For example, the jurisdiction bestowed on the bankruptcy courts would even include proceedings not typically heard in federal court, such as a purely state-law dispute where the parties lacked diversity of citizenship, so long as that dispute affected a bankruptcy case.101 The bankruptcy courts were thus quite unlike the narrow and carefully delineated tribunals that have traditionally decided „public rights‰ cases.102

Certain reformers in the House intended to give bankruptcy judges Article III status.103 But in response to pressure, Congress ultimately dropped the idea of life-tenured bankruptcy judges.104 Instead, bankruptcy judges are selected by circuit

court panels for merit-based appointments to fourteen-year terms.105

This structure was quickly challenged by a defendant in a breach-of-contract claim raised in bankruptcy court by a debtorin-possession, on the grounds that the new Code „unconstitutionally conferred Art. III judicial power upon judges who lacked life tenure and protection against salary diminution.‰106

In the fractured Northern Pipeline Construction Co. v. Marathon Pipe Line Co., a majority of the Court agreed that Congress had overstepped, assigning too much of the federal judicial power to judges without life tenure and salary protections.107 Justice Brennan wrote that the Constitution „commands that the independence of the Judiciary be jealously guarded, and it provides clear institutional protections for that independence.‰108

But because a four-justice plurality split from a two-justice concurrence as to the holdingÊs precise rationale, Marathon clarified little more than that certain breach-of-contract claims must be decided by a life-tenured judge if brought in the federal system.109

To minimize resulting chaos, the Marathon plurality specified that its holding would apply only prospectively and be stayed to allow Congress to fix the problem.110 Congress responded by dividing bankruptcy matters between „core‰ proceedings subject to final decision by a non-Article III bankruptcy judge and „non-core‰ proceedings, for which a bankruptcy judgeÊs report and recommendations must be reviewed de novo by a lifetenured district court judge.111

Many believed Marathon to be a product of its times·a temporary (and ill-advised) foray into a strict interpretation of Article III·from which the Court would soon retreat.112 Erwin

Chemerinsky suggested that the decisionÊs unusual alignment, which saw the four most liberal justices authoring an uncharacteristically formalist opinion, was a response to contemporary public debates about whether Congress could „strip‰ the federal courts of jurisdiction over challenges to state laws on hot-button topics such as school prayer and abortion.113 Under this reading, the bankruptcy courts „just happened to be the vehicle that was before the Court at exactly‰ the time when the „liberal plurality was attempting to send a message to Congress.‰114

But Marathon proved more durable than its liberal plurality may have anticipated. Decades later, in Stern v. Marshall, a more conservative Court with a far greater commitment to originalism held that some claims designated as „core‰ matters for bankruptcy adjudication (specifically, a non-compulsory state-law counterclaim against a third party) had been unconstitutionally assigned to a non-Article III judge.115

Rhetorically, the Stern Court went to great lengths to emphasize the inviolable nature of the Good Behavior requirement, justifying it by reference to constitutional values at the Founding:

While Marathon had been an enigmatic plurality decision, in Stern, a majority committed itself to the centrality of the lifetenure requirement within the Constitutional structure.117 The majority also confirmed that the Good Behavior Clause is not merely a structural rule but also a protection of individual rights.118

Just as significant was the majorityÊs pre-emptive defense of its opinion. Chief Justice Roberts responded directly to arguments that CongressÊs expansive enumeration of core claims for final adjudication by bankruptcy judges caused only a minor disruption to the separation of powers.119 Roberts emphasized that even „slight encroachments‰ to Article III must not be overlooked, writing that „illegitimate and unconstitutional practices get their first footing in that way, namely, by silent approaches and slight deviations from legal modes of procedure.‰120

This strict approach to even „slight encroachments‰ on Article IIIÊs protected territory did not convince all observers. Chemerinsky saw the opinion as a „particularly unpersuasive‰ exercise in formalism, in part because the underlying cause of action·a state-law counterclaim for tortious interference· would typically be tried before a state judge without life tenure if not for the happenstance of bankruptcy.121 Indeed, the fact that most state judges are elected makes a life tenure requirement for state-law claims that are fixed in bankruptcy court especially incongruous,122 although defenses have been offered.123

Most members of the Stern majority later expressed willingness to go even further in the embrace of a robust and unyielding vision of the life-tenure requirement. When the Court narrowly held, in the subsequent Wellness International Network v. Sharif, that a bankruptcy judge may still render a final decision in a non-core claim where all parties consent to that adjudication, Chief Justice Roberts, joined by Justices Thomas and Scalia, objected. They again argued that the „Framers adopted the formal protections of Article III for good reasons,‰ and those protections must be „jealously guarded.‰124

The formalist account of Article III is, however, difficult to reconcile with recess-appointed judges, who unquestionably exercise the judicial power of the United States under commissions that expire following the end of a Senate session. Moreover, unlike bankruptcy judges and magistrate judges, recess appointees are highly dependent on political actors for reappointment, thus implicating the core purposes of the life-tenure requirement. Despite significant discussion of other instances where federal judges may decide cases without life tenure, recess-appointed judges were not mentioned in Marathon,125 Stern,126 or Sharif.127

Indeed, the Supreme Court has never directly addressed the constitutionality of judicial recess appointments. The following Section analyzes the lower-court decisions that have.

The Recess Appointments Clause and the Good Behavior Clause are both textually inflexible: The former refers to „all vacancies,‰ while the latter, as Justice Alito has argued, admits no exceptions.128

Of course, in practice and in particular contexts, neither provision is as unyielding as its plain text might suggest.129 But the

fact that both clauses are subject to their own discrete exceptions sheds little light on how best to resolve their direct interaction.

There is a narrow reading that harmonizes the two clauses: Judges might be granted temporary commissions through the Recess Appointments Clause, and thus take up administrative and ministerial duties, but must be confirmed with life tenure and salary protection before exercising the judicial power of the United States. Though logically coherent, the practical value of seating judges who must wait to hear cases would seem minimal. Thus, this way of reconciling the clauses has never been advanced or debated.

Instead, the potential conflict between these provisions has long been recognized·this author has identified public debate on the issue as early as 1835. In that year, responding to a rumored (but not actual)130 recess appointment of Roger Taney to the seat of Chief Justice, a pseudonymous letter from a „source of the highest respectability‰ to the Richmond Enquirer objected that there „can be no Judge of the Supreme Court who does not hold his office during good behavio[]r . . . [and] No man of delicacy would act as a Judge under such an appointment.‰131 The editors responded by accusing the objector of „split[ing] hairs,‰ noting that presidents had already made recess appointments to the Supreme Court.132

But although this tension was identified early, no court addressed the constitutionality of judicial recess appointments before the mid-twentieth century. Three have since done so·the Second, Ninth, and Eleventh Circuits·all upholding the practice.

The first of these cases was decided by the Second Circuit in 1962. President Eisenhower issued a temporary commission to

Judge John Cashin for a seat on the Southern District of New York.133 In a case before Cashin, defendant Dominic Allocco was tried and sentenced for felony narcotics crimes before the Senate reconvened, confirmed Cashin, and commissioned him with life tenure during good behavior.134

The Second Circuit rejected AlloccoÊs argument that Cashin had presided over his trial as an unconstitutional temporary Article III judge.135 The panel opinion acknowledged the contradiction in the relevant constitutional text.136 But the court resolved it by a relatively cursory reference to history, noting that Washington had used the power for judicial appointments as early as 1795, and that no such appointment had been challenged in the intervening years.137 Indeed, the Second Circuit stated that, at the time, „approximately 50 federal judges [are] sitting under recess appointment.‰138

Aspects of the Allocco decision reflected the surprising paucity of records on judicial recess appointments. The Second Circuit traced the practice back only as far as WashingtonÊs appointment of Chief Justice Rutledge in 1795·but Rutledge was WashingtonÊs eighth temporary judicial appointment, and the practice in fact dates to 1789.139 At the same time, AlloccoÊs reference to fifty judges sitting under recess appointments overstates the number of judges who received such appointments within one Senate session of the decision.140 Despite the courtÊs wording, its count likely reflects the total number of sitting judges who had received recess appointments at some point during their career.

But these errors were almost certainly inconsequential, as Allocco did not treat judicial recess appointments as raising a difficult question.141 This approach was line with

in

contemporary Supreme Court decisions on structural questions, such as Ray v. Blair, which explicitly afforded interpretive weight to longstanding and unchallenged practices by political actors.142

In the years that followed, however, the CourtÊs jurisprudence became less receptive to structural arguments rooted in later historical practices of governmental actors. Most notably, in 1983, the Court held that laws providing for legislative vetoes, which had been used in „hundreds of statutes, dating back to the 1930s,‰ violated structural provisions of the Constitution.143 That holding, in INS v. Chadha, brought parts of AlloccoÊs reasoning into question, even if judicial recess appointments have deeper historical roots than legislative vetoes.

While the Chadha litigation was proceeding, another recessappointment dispute arose from President CarterÊs temporary commission of Walter Heen to the District of Hawaii.144 Unlike Judge Cashin, who was later confirmed, Heen was a „midnight judge‰145 placed on the bench by Carter shortly before President ReaganÊs inauguration. Heen heard and decided cases until the end of the following session of the Senate, in December 1981, after which point his judgeship expired and was not renewed.146

On appeal of a conviction over which Heen had presided, a Ninth Circuit panel raised sua sponte the constitutionality of his status as a temporary Article III judge.147 In an extensive opinion, the panel rejected the Second CircuitÊs reasoning in Allocco, holding for the first and only time that a recess-appointed judge may not constitutionally exercise the judicial power of the United States.148

In that decision, United States v. Woodley, the panel raised several points of disagreement with the Second Circuit. First,

analyzing the constitutional text, it held that the „unusually specific language of [A]rticle III must supersede the general language of the [A]rticle II recess appointment clause, which does not mention the judicial office at all.‰149 The panel then noted that, while early Supreme Court decisions tended to assume a practiceÊs constitutionality based on continuous tradition,150 recent cases like Chadha reduced the presumption of constitutionality afforded to previously unchallenged governmental practices.151

The panelÊs decision, however, was overruled by the circuit sitting en banc. In a relatively close seven-to-four decision, the Ninth Circuit re-aligned with the Second, upholding the constitutionality of judicial recess appointments.152 Like Allocco, the en banc court emphasized the long history of judicial recess appointments·characterizing it as an „unbroken practice, which has prevailed since the inception of our nation and was acquiesced in by the Framers of the Constitution when they were participating in public affairs.‰153 Four dissenters, however, criticized the majority for its reliance on historical executive action „as virtually the sole basis for its conclusion that the practice is constitutional.‰154

WoodleyÊs historical analysis was more precise than AlloccoÊs had been, because the Ninth Circuit ordered the Department of Justice to compile a record of known historical recess appointments to be submitted in supplemental briefing.155 Briefing in the Woodley case, assembled from records collected from a range of government departments, provided a more comprehensive list of judicial recess appointments than had previously been available.156 Today, complete records of known recess appointments are maintained by the Federal Judicial Center.

The third and final court to address the validity of a judgeÊs recess appointment was the Eleventh Circuit, after George W. Bush appointed William Pryor Jr. to that court in response to a Senate blockade.157 Senator Edward Kennedy filed an amicus curiae brief in an appeal of a decision granting a police officer qualified immunity for actions taken during a traffic stop.158 Kennedy argued that Pryor lacked constitutional authority to hear the case.159

After Pryor recused himself, the Eleventh Circuit rejected, in Evans v. Stephens, this challenge to his appointment.160 Like the Second and Ninth Circuits before it, the Eleventh largely relied on historical practice in affirming the validity of judicial recess appointments.161 The Eleventh Circuit also determined that the „Framers would tolerate, on a temporary basis, some federal judges who lacked Article III protection,‰ in part because state judges „then and now do not have all the protection of Article III judges; yet these courts are not seen to be inherently unfair, and the litigants who appear before them have not been held to have been denied due process.‰162

Following the Eleventh CircuitÊs decision, the Supreme Court rejected a petition for certiorari.163 But Justice Stevens wrote separately to express interest in the issue.164 Stevens noted that the case raised „significant constitutional questions,‰ while also recognizing „valid prudential concerns supporting the decision to deny certiorari.‰165 He underscored that, by rejecting the petition, the Court had not decided on the merits „whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court.‰166

The prevailing and longstanding acceptance of temporary Article III judges aligns poorly with the formalist account of the life tenure requirementÊs role in the federal system. In both Marathon and Stern, the Court identified constitutional violations when a bankruptcy judge issued a final decision in a set of claims (essentially those that were plenary under the old Bankruptcy Act of 1898).167 In other words, litigants with no right to a lifetenured judge in a state system nevertheless enjoy an absolute right to one when a bankruptcy petition pulls their cause of action into a federal forum.168 Yet under prevailing law, the lack of life tenure is not an incurable defect when the district judge rendering the final decision herself is a recess appointee.169

The following Part tests that latter proposition by examining the treatment of temporary federal judges by the Founding Generation.

II. THE HISTORY OF TEMPORARY FEDERAL JUDGES

Though the Allocco, Woodley, and Stephens decisions relied almost exclusively on historical practice, they did so after only a relatively cursory examination of the historical record.170 That record, largely unavailable at the time of the Allocco decision, is now accessible through Federal Judicial Center archives.

There have been 301 recess-appointed Article III judges throughout American history.171 The number of judicial recess

appointments is slightly higher, accounting for a handful of judges who received more than one recess appointment during their careers.172 Judicial recess appointments occurred while the ConstitutionÊs ratifiers remained politically active.173 Specifically, nineteen judges or justices received temporary commissions between 1789 and 1815.174

Though judicial recess appointments began in this early period, they peaked later. As the histogram in the Appendix illustrates, the majority of judicial recess appointments were concentrated in a roughly sixty-five-year period beginning with the appointment of district judge William McHugh by Grover Cleveland in 1896.175 The closing years of this period included President EisenhowerÊs unusual, but not unprecedented, recess appointments of Chief Justice Earl Warren and Justices William Brennan and Potter Stewart.176

In total, thirty-seven presidents made at least one judicial recess appointment, while nine did not.177 Judicial recess appointments were periodically used in the Nineteenth Century, exploded in the early and middle Twentieth, and mostly fell out of favor after the presidency of Lyndon Johnson.178

The modern period saw no judicial recess appointments between one appointment by President Carter in 1981 and another

by President Clinton in 2000.179 President George W. Bush made two judicial recess appointments, but none have been made since.180 Notably, President Obama did not use the power to counter the SenateÊs refusal to consider Merrick GarlandÊs nomination to an open Supreme Court seat, even though such an appointment might have fallen within the bounds set by Noel Canning if made during the inter-session recess following the first election of Donald Trump.181 Most recently, after his second election, President Trump signaled a desire for Senate leaders to „agree to recess appointments . . . to get people confirmed in a timely manner,‰182 though to date nothing has come of that suggestion.

Two significant and nuanced questions arise from this history that were not addressed by the line of appellate decisions beginning with Allocco. First, those decisions did not meaningfully distinguish Founding-Era practice from later practices. Early post-ratification practice is often viewed as more relevant to constitutional meaning, as the actions of the Founding Generation are deemed especially probative of the original public understanding of the ratified text.183 Justice Barrett, for example,

has recently argued that „for an originalist, the history that matters most is the history surrounding the ratification of the text‰ rather than „[h]istory (or tradition) that long postdates ratification.‰184

Whether later historical practices, further removed from ratification, should be afforded any weight is a more difficult and contested question.185 For example, in New York State Rifle & Pistol Association v. Bruen, the Court applied a history-and-tradition methodology to invalidate a state statute that had itself stood since 1911.186 Though judicial recess appointments have a longer pedigree, their heyday occurred during an era when practices did not generally establish a strong presumption of constitutionality.187 The historical analysis in Allocco, Woodley, and Stephens did not meaningfully distinguish between FoundingEra practices and those that occurred much later.

Second, these decisions did not distinguish between recess appointments, made by the executive, and the exercise of judicial power by the recess appointees themselves. Put simply, judges do more than hear and decide cases.188 They supervise court personnel, preside over attorney admissions, and perform other ministerial duties.189 Thus, the fact that some early judges were

given short-term commissions does not necessarily imply that they exercised the judicial power of the United States before confirmation by the Senate.

life tenure. Indeed,

An alternative possibility·and one potential way of reconciling the two clauses·is that recess-appointed judges might assume office but merely undertake ministerial duties before receiving if early recess appointees systematically refrained from deciding cases due to their own understanding of their limited status, that evidence might weigh against, rather than in favor of, the constitutionality of the practice. Thus, precise analysis should primarily look to the actions of the appointees themselves, rather than the actions of the presidents who appointed them.

This Part addresses the key question at the center of these two issues: the extent to which Founding-Era recess appointees exercised judicial power by hearing and deciding cases. Section A analyzes the existing academic literature on this topic, including an earlier study suggesting that Founding-Era recess appointees did not regularly exercise judicial power before receiving lifetime appointments. Section B introduces historical evidence, including documents not previously considered in cases and academic articles on recess appointments. This evidence demonstrates that, contrary to one position in the literature, Founding-Era recess-appointed judges did exercise judicial power while serving on temporary commissions, complicating prevailing justifications for the CourtÊs jurisprudence on non-Article III adjudication.

The majority of scholars who have considered the constitutionality of judicial recess appointments have reached similar conclusions as the three circuits that have decided the question, albeit sometimes reluctantly.190 But this conclusion is not

unanimous. In the leading article against the constitutionality of judicial recess appointments, William Ty Mayton argued, first, that the norm among recess-appointed Supreme Court justices was to hear cases only after confirmation.191 Though not the first to advance this argument,192 Mayton articulated it thoroughly and with precision.

Mayton conceded that Chief Justice John Rutledge, given a recess appointment by Washington in 1795, participated in two Supreme Court decisions under a temporary commission before resigning (after the Senate refused to confirm him due to his opposition to the Jay Treaty).193 But Mayton cast Rutledge as a marked outlier, asserting that no other recess-appointed Supreme Court justice heard cases before confirmation until Benjamin Curtis, who was given a temporary commission by Millard Fillmore in 1851.194

Turning next to the inferior courts, where most judicial recess appointees served, Mayton cross-checked published opinions in legal-research databases against confirmation dates.195 He concluded that, for the initial thirty-four years (until 1828), no recess-appointed lower-court judge heard cases before

confirmation.196 Mayton conceded that his methodology would be „only roughly accurate.‰197 Nevertheless, he concluded that a decided minority of all lower-court temporary judges·approximately thirty-one percent, and zero during the early period· „heard and decided cases prior to their confirmation.‰198

MaytonÊs contentions are significant for multiple reasons. First, they are facially plausible: Most recess-appointed judges were confirmed by the Senate within a matter of months, and it was not especially unusual for early courts to go months between the commencement of actions.199 Thus, an early judge who refrained from hearing cases for a matter of months would cause relatively little disruption to the federal system.

Second, MaytonÊs observations have been cited in subsequent literature, both by those who agreed with his larger conclusions and those who did not.200 Even if his article did not shift the dominant academic consensus on recess-appointed judges, the contention that early recess appointees rarely heard cases has been a sticky one.201

Third, and perhaps most importantly, Mayton focused on the right question to an extent that many others have not, including the circuit courts that weighed in on the issue. MaytonÊs article was published in 2004, during a wave of scholarly interest surrounding the Stephens decision. In the years since, the Supreme Court has embraced originalism more decisively, and several justices have staked out precise positions about the relelate post-ratification history.202 By vance of early and addressing the narrow question of whether recess-appointed judges who were active in the ratification era exercised judicial power before confirmation, his analysis was more in line with modern methodology than efforts that looked broadly to the frequency of recess appointments by presidents throughout history.203

However, as this Section documents, these conclusions were flawed. First, while most early Supreme Court recess appointees did not hear Supreme Court cases before confirmation, several rode circuit and heard circuit court cases while on temporary commission.204 Second, because the core work of the early district courts (in rem admiralty cases and petty offenses) rarely found its way into case reporters, searches of common legal databases fail to establish whether early district judges heard cases before confirmation.205

Much more is revealed by searching archives of the district and circuit courts, letters, and Founding-Era newspapers with

announcements about ongoing local court proceedings. These sources reveal a pattern of judicial action by early recess appointees before their confirmation. Taken together, this evidence, documented in the following Sections, suggests that the Founding Generation embraced a flexible view of the life-tenure requirement.

This Section identifies previously overlooked decisions by recess-appointed judges between 1789 and 1806·the seventeen years following the enactment of the First Judiciary Act by the First Congress.206 1806 marks a natural cut-off point for this analysis because of a nine-year gap between JeffersonÊs last judicial recess appointment (Henry Livingston, in 1806) and MadisonÊs only judicial recess appointment (William Pennington, in 1815).207 These Sections first address Supreme Court justices before turning to the lower courts.

First, a word on methodology. For recess-appointed judges, the author identified date ranges between their recess appointment and their confirmation by the Senate, using the Federal Judicial CenterÊs Biographical Directory of Article III Federal Judges.208 The author then sought records of those judgesÊ courts from the National Archives. For the lower courts, recorded minutes are located in Record Group 21, which contains records of the district courts, territorial courts, and circuit courts.209 The engrossed minutes of Supreme Court proceedings are located in

Record Group 267 and are digitally available.210 The author supplemented these archival materials by searching for local announcements of court activity through the Readex AmericaÊs Historical Newspapers database, which includes archival content from over ninety institutions and the Library of Congress.211

1. Temporary Supreme Court Justices in the Early Republic

The first recess-appointed justice of the U.S. Supreme Court was Thomas Johnson, who had previously been confirmed for· and declined·a district court seat.212 After the departure of Associate Justice John Rutledge from the Supreme Court in 1791, Washington urged Johnson to accept a temporary commission in July.213

Johnson hesitated, believing his health to be too poor to ride the grueling Southern Circuit.214 As a result of this hesitation, the Supreme Court sat on August 1st and 2nd with four, rather than the authorized five, associate justices.215 In an apology note to the president, Johnson indicated that he did expect to sit on the Court should he have accepted the temporary commission: He wrote to Washington that „[i]t never occurred to me Âtill Yesterday that the supreme Court was to sit on to-day, I imagine you found yourself obligeÊd to fill up the Office[,] I do not regret

my Inattention for any Thing so much as keeping you in Suspence [sic].‰216

After the other justices agreed to spare Johnson from riding the Southern Circuit, he accepted a temporary commission as associate justice on August 5th, 1791.217 This was too late for the CourtÊs August 2nd sitting. JohnsonÊs temporary commission from Washington granted him the seat „during his good Behavior, and until the end of the next Session of the Senate of the United States, and no longer,‰ suggesting that, as of 1791, Washington did not view „good behavior‰ as synonymous with life tenure.218

Johnson was confirmed on November 7th of 1791.219 The Court did not sit again until February 1792, during which four justices presided over ministerial matters (Johnson had not yet arrived).220 On August 6th, Johnson joined the Court, and his lifetime commission was read into the CourtÊs minutes.221 Given JohnsonÊs health and concerns about riding circuit, it is unlikely that he exercised judicial power on a circuit court before his confirmation, and this author has located no records suggesting he did so.222

John Rutledge, the man Johnson replaced as associate justice, returned to the court as its Chief in August 1795 through a recess appointment.223 Washington wrote to Rutledge as soon as the vacancy opened, indicating his desire for Rutledge to begin service as soon as possible.224 Washington wrote of „my desire, & the advantage which would attend your being in this city the first monday in August (at wch [sic] time the next session of the Supreme court will commence).‰225 Washington thus had a strong expectation that Rutledge would sit before the Senate considered his permanent appointment in December.

Rutledge arrived on August 12th, 1795. The CourtÊs minutes for that day record that „letters patent dated on the first of July last, appointing the honorable John Rutledge, Esquire Chief Justice of the Supreme Court of the United States, during his good behavior and until the end of the next session of the Senate of the United States, were read and published in open Court; and thereupon he took the oath . . . [and] after which he took his seat on the bench.‰226 Notably, Rutledge was not seated to cure an emergency·before his arrival on the 12th, the Court had held argument with four justices on the 8th, 10th, and 11th.227

As a temporary Chief Justice, Rutledge participated in two Supreme Court cases during the CourtÊs August 1795 term:

Talbot v. Janson and United States v. Peters.228 These were unusual cases·both involved French privateers sailing against the British in the wars of the French Revolution.229 By directing such disputes to the courts rather than diplomatic channels, the Washington Administration sought to avoid antagonizing either great power.230 This strategic use of the courts perhaps accounts for the urgency in WashingtonÊs message encouraging Rutledge to arrive before the CourtÊs session.231

Rutledge was active as Chief Justice in other ways as well. For one, he was allotted circuit riding duties for the Southern Circuit in the fall of 1795, before his unsuccessful confirmation hearings, which took place in December.232 A 1795 letter from John Adams to his wife Abigail suggested that Rutledge was unable to attend that yearÊs circuit courts in Georgia or North Carolina due to health problems (a „Disarrangement of Intellect‰).233 But the Minute Book of the U.S. Circuit Court for South Carolina, RutledgeÊs home state, confirms that he did sit on that court in October 1795.234 Rutledge and District Judge Thomas Bee heard several cases and decided motions during that period.235

Additionally, as Chief Justice, Rutledge was also an ex officio member of the Sinking Fund Commission,236 an antecedent to modern independent agencies designed to manage and pay down the nationÊs public debt.237 The commission was active in November of 1795, while Rutledge served as Chief Justice, though its report to the Senate does not expressly state that all Commission members participated in that yearÊs decisions.238 RutledgeÊs predecessor, John Jay, had provided the Commission with opinions by mail but refused to travel to meetings at his own expense.239 RutledgeÊs official activities thus extended beyond his participation in two Supreme Court cases, as he also sat on the circuit court in South Carolina and may have participated in the activities of the Sinking Fund Commission.

In the end, RutledgeÊs service was brief. He was not confirmed as Chief Justice by the Senate,240 having incurred opposition through a particularly strident speech against the Jay Treaty.241 Rutledge thus became the first temporary federal judge not to continue into a life tenured commission.242

The third justice to receive a temporary commission was Bushrod Washington, appointed as Associate Justice by

President Adams on September 29, 1798.243 Bushrod Washington was then confirmed by the Senate in December and received his commission on December 20, 1798.244 Alexander Dallas recorded WashingtonÊs first sitting on the Supreme Court (and the reading of his commission before the Court), on the CourtÊs February 1799 term.245 Accordingly, some have assumed that Washington did not act as a justice before confirmation.246

However, like Rutledge, Washington was allotted circuit riding duties for the Southern Circuit in the fall of 1798.247 Washington could not reach the circuit courtÊs first sitting in Charleston, but, in October, he proceeded to the courtÊs second, fall sitting in Augusta, Georgia.248 District judge Joseph Clay (himself a former recess appointee) administered WashingtonÊs oath as an Associate Justice on November 9, 1798, before Washington presided over the circuit court.249 Washington was confirmed by the Senate for a lifetime appointment on December 20, 1798.250 Thus, Washington exercised judicial power by presiding over circuit proceedings prior to Senate confirmation.

The next recess-appointed justice was not placed on the Court until 1806, when Jefferson issued a temporary commission

to Henry Livingston.251 Jefferson placed Livingston on the bench on November 10, 1806, and he was confirmed by the Senate on December 17, 1806.252 The Supreme Court did not sit during that date range,253 and Livingston was not allotted circuit riding duties until March 9, 1808.254 His inactivity during this brief window is thus unsurprising.

The more interesting question·for which this research located no definitive answer·is why Jefferson felt the need to place Livingston on the Court through a recess appointment when the Senate was to be available for an ordinary confirmation before the Supreme CourtÊs next sitting. LivingstonÊs temporary commission is the quintessential example of a foundingera recess appointment issued in the absence of any necessity, suggesting that the power has been used, from the beginning, for political purposes as well as to address emergencies.255

2. Temporary District Judges Under Washington, Adams, and

Jefferson

Judicial recess appointments were made almost immediately after the creation of the lower federal courts.256 Several of the initial nominees to the district courts were confirmed but

declined their appointments, including Thomas Pinckney of South Carolina.257 George Washington quickly used the recess appointment power to name William Drayton to the District of South Carolina on November 18, 1789.258 In a letter, Washington explained to Drayton that his commission would be „limited to the end of the next Session of the Senate,‰ but he assured him that „there cannot be the smallest doubt but the Senate will readily ratify & confirm this appointment.‰259

Records from DraytonÊs court and contemporary newspaper announcements indicate that Drayton held a special session on January 7, 1790, before his confirmation was considered by the Senate.260 Drayton issued an order to show cause to determine whether a cargo of sugar and coffee should be forfeited to the federal government for failure to pay customs duties.261 Drayton heard responses from relevant parties on January 22, 1790, though no one appeared to lay claim to the barrels.262 He sat again on February 1 and February 2, 1790, hearing petitions and issuing orders, and generally exercising judicial power as a temporary federal judge.263 Thus, within four months of the

enactment of the First Judiciary Act,264 a temporary federal judge exercised judicial power without life tenure.

Washington experienced a similar problem when Edmund Pendleton declined an appointment to be the first judge of the District of Virginia.265 In private correspondence, Washington noted that PendletonÊs refusal „has embarrassed me.‰266 Washington turned to Cyrus Griffin, a veteran judge of the Court of Appeals in Cases of Capture,267 the first and only federal court to exist under the Articles of Confederation.268 Washington granted him a temporary commission on November 28, 1789, to fill the vacant seat.269

Washington considered appealing to Pendleton, his first choice, „through the medium of a friend‰ to change his mind.270 But he noted that „there was not time‰ to „hazard a second refusal‰ because the court was slated to open in December.271 In other words, Washington appointed Griffin with the expectation that he would hold court at the appointed time, before the Senate voted to confirm him.

Griffin indeed held court in Richmond as a recess appointee on December 16th, presiding over the appointment of a clerk and the admission of four attorneys.272 The district court then

adjourned until March 1790 on the ground that there was no other business before it.273

Around the same time, Thomas Johnson (soon to receive a recess appointment to the Supreme Court) was confirmed to the District of Maryland but then declined.274 Washington granted a recess appointment to William Paca for a seat on the District of Maryland on December 24, 1789.275 Like Griffin, Paca had served on the Court of Appeals in Cases of Capture and was thus one of a handful of people in 1789 with experience as a federal judge.276 Paca was confirmed on February 10, 1790.277 The minute books for the district and circuit courts of Maryland both begin later in 1790, confirming that Paca did not exercise judicial power as a recess appointee.278

WashingtonÊs next judicial recess appointment was Robert Morris, named to the District of New Jersey on August 28, 1790, and confirmed on December 20th of that year.279 Morris was commissioned in November and presided over the admission of

several attorneys, although the court had no cases before it and thus adjourned until the next year.280

A more active recess appointee was William Lewis, who received a temporary commission on July 14, 1791, to the District of Pennsylvania.281 Lewis was confirmed by the Senate on November 7th of that year.282 In between those dates, while on temporary status, Lewis issued a writ for a public auction of a seized vessel283 and held a special session to try persons charged with theft from a ship.284

Samuel Hitchcock received a recess appointment to the District of Vermont on September 3, 1793.285 He was confirmed to a lifetime appointment on December 30th of that year,286 though he would later lose his Article III status after accepting a midnight appointment from Adams to the short-lived position of circuit judge.287 There is no record of action by Hitchcock in the months before his Senate confirmation; indeed, Vermont newspapers did not even note his recess appointment until October 21st, just two months before his confirmation.288

After Hitchcock, the next recess appointee was Joseph Clay, named to the District of Georgia on September 16, 1796, and confirmed on December 21, 1796.289 Clay took his oath of office and presided over a session of court on November 8, 1796, during his

temporary status.290 The minutes for the following day reflect a case captioned United States v. Putnam as being continued.291 ClayÊs next sitting occurred after confirmation.292

Around the same time, Benjamin Bourne was recess-appointed to the District of Rhode Island on October 13, 1796, and confirmed on December 22nd.293 In between those dates, Bourne heard an admiralty case captioned United States v. Betsy.294 Records from that case indicate that a special session of court was held on November 24, 1796.295

District Judge James Winchester received a temporary commission from John Adams on October 31, 1799, to replace the now-deceased Paca for the District of Maryland.296 WinchesterÊs temporary commission was read before the Court on November 5, 1799.297 He then took the oath and began presiding over the court.298 On November 8th, 9th, 11th, and 12th, Winchester sat with Samuel Chase on the circuit court for Maryland.299 On November 9th, while serving as a recess appointee, Winchester recused himself from one circuit court case because he had

previously served as counsel for the claimants.300 He did not recuse himself based on recess-appointed status.301 Winchester was confirmed by the Senate on December 10th of that year.302 Jefferson first used the recess appointment power on March 23, 1801, shortly after his inauguration.303 He placed William Kilty on the newly formed Circuit Court for the District of Columbia, a court created by the District of Columbia Organic Act rather than the First Judiciary Act.304 Scholars have taken conflicting positions as to when this court began to be understood as an Article III tribunal, but in any event, its judges were confirmed to serve during good behavior.305 Before confirmation, Kilty began presiding almost immediately, holding a session of court on March 25, 1801.306 His court met throughout the year 1801, before Kilty received a lifetime appointment in January 1802.307

Jefferson also issued a recess appointment to David Barnes on April 30, 1801, to a seat on the District of Rhode Island (vacated by former recess-appointee Benjamin Bourne).308 Barnes presided over a hearing related to the sale of a vessel in July 1801, prior to his confirmation in January 1802.309

JeffersonÊs next two recess appointments were unusual· Dominic Hall and Henry Potter received recess appointments to circuit judge positions even as the Jeffersonian Democrats

worked to abolish the offices they were appointed to.310 As temporary judges, Hall and Potter opened the short-lived Circuit Court for the Fifth Circuit on December 16, 1801.311 They were confirmed by the Senate to „permanent‰ positions on January 26, 1802.312 Their position was then abolished in July of that year.313

Around the same time, Jefferson issued a recess appointment to William Stephens for the District of Georgia on October 22, 1801.314 Stephens does not appear to have heard cases before he was confirmed on January 26, 1802.315 Notably, StephensÊs recess-appointment window coincided with the existence of the circuit courts under the Judiciary Act of 1801.316 Thus, when the circuit court did sit in Augusta, Georgia, during StephensÊs recess appointment window in 1801, those duties were instead handled by Hall and Potter.317 A November 1801 Augusta newspaper separately announced StephensÊs recess appointment and an upcoming circuit court sitting by Hall and Potter.318

JeffersonÊs final recess appointed district judge was Matthias Tallmadge for the District of New York, temporarily commissioned on June 12, 1805, and confirmed on December 23rd of that year.319 Tallmadge presided over a special session of the district court on July 16, 1805, hearing several libel cases, after

his temporary commission was read into the courtÊs minutes.320 That commission stated that he would hold the office, with its „powers, privileges, and emoluments . . . during his good behavior and until the end of the next session of the Senate of the United States, and no longer.‰321

3. Taking Stock of the Evidence

In summary, from 1789 through 1815, nineteen judges received recess appointments. Four of these were Supreme Court justices (Johnson, Rutledge, Washington, and Livingston), two were circuit judges appointed by Jefferson pending the abolition of that role (Hall and Potter), and one was a judge of the unique Circuit Court for the District Court of Columbia (Kilty). The remaining twelve were district court judges.

Of the four Supreme Court justices given temporary commissions by the first three presidents, two were active before receiving lifetime commissions. Another, Thomas Johnson, believed that he would sit on the Court immediately were he to accept his temporary commission, and did not sit only because of indecision due to his physical health. Thus, Founding-Era temporary Supreme Court justices do not appear to have held reservations about the propriety of their pre-confirmation service.

Among the three judges on exceptional courts·Hall, Potter, and Kilty·all were active before their confirmation. And of the remaining district court judges, nine out of twelve sat while on temporary status: Drayton, Griffin, Morris, Lewis, Clay, Bourne, Winchester, Barnes, and Tallmadge·though GriffinÊs and MorrisÊs courts had no cases before them, and they instead presided over administrative matters such as attorney admissions.

In total, at least twelve out of nineteen initial judicial recess appointees exercised judicial power without lifetime appointments within the first twenty-five years of the nationÊs history (63%). Adding those who took the bench during sessions when their courts lacked cases, fourteen out of nineteen (74%) presided over their court on a temporary commission. And activity by

early recess appointees can be found at every level of the judiciary.

To be sure, this survey still shows that a meaningful number of recess-appointed judges and justices in the early period (37%) did not hear cases before they were confirmed with lifetime appointments. But a close inspection reveals no reason to believe that these judges doubted the propriety of exercising judicial power before they received lifetime appointments. JohnsonÊs correspondence reveals that he expected to participate as a justice were he to accept his recess appointment during a scheduled sitting of the Court.322 Griffin and Morris took the bench and presided over attorney admissions when their courts simply had no case pending. Stephens held a temporary commission while the circuit court was sitting in his city, but he was not a part of that court only because of the short-lived Federalist judicial reforms. Others held temporary commissions for extremely brief windows (such as Livingston for 37 days or Hitchcock for 48), where their courts likely saw no activity.

In summary, historical evidence shows that the generation that ratified the Constitution was comfortable with a relatively flexible approach to the life tenure requirement. To the extent that lifetime appointments were understood as safeguards protecting individual liberty, those safeguards were believed to be compatible with at least some adjudication by federal judges serving under term-limited commissions.

Admittedly, there is another potential reading of this evidence. Many constitutional questions during the Founding Era, from the validity of circuit riding323 to the exclusivity of CongressÊs bankruptcy power,324 were initially unsettled and were liquidated only by later decisions.325 Given the relatively low number of early recess appointees and the non-trivial proportion of those who did not decide cases, perhaps some actors harbored

doubts about whether Article III recess appointments were appropriate.

While this interpretation is plausible, the evidence cuts against it. If Founding-Era actors were concerned about judicial recess appointments, they likely would have used them sparingly, and only to address genuine problems arising from staffing shortages. However, it is difficult to discern any genuine emergencies underlying several early recess appointments.

As noted, the Supreme Court functioned without Thomas Johnson before he joined the Court, sitting with one fewer justice than authorized. Indeed, at the time, it was common for the Court to reach decisions without all authorized justices participating, as the norm was for justices not to participate in the review of cases that they had heard below as a circuit judge.326 In other words, had Washington or Johnson doubted whether a recess appointment was appropriate, no great practical needs weighed against waiting for the Senate.

There was even less pressing need underlying JeffersonÊs recess appointment of Henry Livingston. As noted, the Supreme Court had no scheduled sittings between LivingstonÊs recess appointment date and the next meeting of the Senate. In other words, these appointments suggest that Article III recess appointments were not such a controversial subject that they were reserved only for times of dire need.

4. Later Periods

This Article has focused its historical analysis almost entirely on the Founding Era, both because evidence from that period is generally regarded as most probative of original meaning and because gaps in easily accessible evidence have led scholars to debate the actions of recess appointees during that period.

It is, however, worth briefly reiterating that the exercise of judges was clearly

judicial power by recess-appointed

established in later periods, even before it was upheld by the Second Circuit in Allocco and later appellate decisions.327

As one example, during the window between the recess appointment of Chief Justice Warren on October 2, 1953, and his confirmation on March 1, 1954328 the Supreme Court issued several opinions without any noted recusals.329 And during his recess appointment, Warren also presided over and participated in oral argument in cases before the Court·including reargument in Brown v. Board of Education.330 Though Warren was not especially active during reargument in Brown, he did ask substantive questions as a recess appointee.331 Thus, the power of recess appointees to exercise judicial power while serving on temporary commissions has been accepted from the early period through to the modern one.

III. TEMPORARY FEDERAL JUDGES AND ARTICLE III FORMALISM

This Part first assesses the implications of the preceding historical analysis for the constitutionality of judicial recess appointments and for the formalist approach to non-Article III adjudication. It then turns to potential approaches that might resolve the contradictions in this area.

The regular use of the recess appointment power to staff judges in the decades immediately following ratification, and the

general acceptance of those judgesÊ exercise of the judicial power, provides originalist support for the constitutionality of recessappointed judges. It also undermines the position that a faithful interpretation of the Constitution can tolerate no exercise of judicial power by term-limited judges.

That is not to say, of course, that originalist methodology should necessarily decide either issue. As Richard Fallon has insightfully demonstrated, even the CourtÊs self-described originalists do not deploy originalist methodology in every case.332 Writing along similar themes, Noah Rosenblum has observed that the Court has deployed a „selective account of the ConstitutionÊs development,‰ in part by relying on a „cherrypicked historical account.‰333 These observations find support in the pervasive absence of early recess appointees from the CourtÊs dominant narrative about the life-tenured federal judiciary.334

As for the specific question of recess appointments, whether or not the Court relies on originalism in any future consideration of the Allocco line of cases may be largely inconsequential. The evidence compiled in this Article provides originalist support for the prevailing consensus·even though that consensus is a functionalist one and was not established through an especially rigorous analysis of original understanding. In other words, adding or subtracting evidence of Founding-Era recess appointees may not alter the outcome of these cases.

But a full accounting of the Founding GenerationÊs comfort with temporary Article III judges is more disruptive to the CourtÊs jurisprudence on non-Article III adjudication. In this area, the CourtÊs formalist line drawing relies on history for rationalization and justification.335 It is no surprise that some of

the most evocative language in the Stern majority opinion deployed originalist rhetoric.336

Stripped of an appeal to the values of the Founding Generation, a formalist shell remains. Bankruptcy courts and administrative agencies exist „outside‰ of Article III and may not exercise the judicial power; recess-appointed judges, though lacking lifetime commissions and salary protection, exist „inside‰ Article III and thus may do so.337 But this is a rule stripped of reasoning or justification·not least because lifetime appointment and salary protection are themselves the principal markers of Article III status.

Without the organizing principle of fidelity to fixed original meaning·and the rhetorical appeal derived from a connection to the FoundersÊ experience with an unjust system of colonial adjudication·the CourtÊs current doctrine appears arbitrary. Neither individual liberty nor the separation of powers would be impacted should bankruptcy judges serving fourteen-year terms issue final decisions on Stern claims that would normally be decided by elected state judges.338 Perhaps more damningly, the Stern rule stands as a rejection of the flexible and innovative approach to judicial design that was embodied by the early republic.

Of course, the tension between the history of temporary federal judges and the CourtÊs jurisprudence on non-Article III adjudication could be resolved in either direction·by reversing the

prevailing consensus about the legitimacy of temporary Article III judges, or by adopting a more flexible approach to structures of adjudication without life tenure. Thus, the following Section considers potential resolutions.

This Section charts three potential resolutions to the tension identified in this Article: a reversal of the Allocco line of cases, a reversal of Stern, or a middle ground.

1. A New Approach to Judicial Recess Appointments

The Supreme Court has never addressed the constitutionality of temporary Article III judges, having rejected the petition for certiorari in Stephens.339 But one justice did express interest in the issue.340 Moreover, the nominal concurrence in Noel Canning demonstrated a general distaste for recess appointments in the modern setting.341 It is thus not inconceivable that the Court would hold future judicial recess appointments to be unconstitutional. A decision that judicial recess appointments are incompatible with Article IIIÊs life-tenure requirement would harmonize the law in this area with the CourtÊs strict, formalist jurisprudence on non-Article III adjudications.

There may be reasons to welcome such a development. Evidence that modern recess appointees exhibit different voting patterns pre- and post-confirmation is genuinely troubling.342 Moreover, the use of the recess-appointment power has dramatically declined in recent decades.343 In an unusually partisan era,344 Congressional leaders have effectively blocked presidents from the opposing party from making recess appointments in most situations through the use of pro forma sessions.345 Practically,

such a decision might not have a radical effect on the other branches.

Moreover, concerns expressed by some authors about such a holding might be exaggerated. Several have argued in favor of judicial recess appointments by contending that an alternative reading would retroactively de-legitimize a plethora of decisions made by recess-appointed judges throughout history.346 And indeed, many preeminent judges who played important roles in American history received recess appointments.347

But there is no reason to assume that a prospective decision about the constitutionality of judicial recess appointments would require delegitimizing past decisions by recess-appointed judges. When the Supreme Court determined in Marathon that the Bankruptcy Reform Act had encroached upon Article III, it specified that its opinion would apply only prospectively.348 In part because the decision „present[ed] an unprecedented question of interpretation‰ and was thus „an issue of first impression whose resolution was not clearly foreshadowed,‰ Marathon did not cast doubt on any past decisions·even those that might have been impermissible going forward.349 The same approach could be taken here.

Nevertheless, there is a highly compelling reason to avoid invalidating judicial recess appointments: Such a decision would be wrong under a variety of methodologies. A practice accepted without objection by the first three administrations and then

continued with a few interludes through to the George W. Bush Administration should pass muster under either originalist or living constitutionalist approaches. Thus, despite their relatively surface-level analysis of a perplexing constitutional question, the Allocco line of cases was correctly decided.

2. Reconsidering Marathon and Stern

An altogether different response would be a more functionalist approach to non-Article III adjudication. The rhetorical mythmaking in the CourtÊs formalist Article III cases obscures the approach of the Founders to the construction of the federal judiciary. That approach was flexible and innovative.350 And the careful, unique, and creative design of the bankruptcy judge, which the Court has repeatedly undermined, exhibited these same values.351

Perhaps, as Jonathan Seymour has suggested, the impact of these cases on bankruptcy courts is partially exaggerated, as Article III judges tend to provide a great degree of de facto deference to the decisions of bankruptcy judges.352 As for administrative law, the CourtÊs current retrenchment in that area is far broader than mere questioning of adjudication before non-Article III agency tribunals. Agency adjudication would likely remain under siege even in the absence of a formalist approach to non-Article III adjudication.

But strict formalism restricts future adjudicative innovations alongside current ones. By ignoring a major, historically grounded exception to the life-tenure requirement and instead enshrining a more rigid vision of the federal system, the Court risks stunting judicial development, innovation, and reform.

To be sure, there is no indication that the current Court is interested in revisiting Stern or Marathon. But as Noah Rosenblum recently argued, recontextualizing relevant history is a

worthwhile project even „if such arguments do not persuade the current Justices,‰ as such work offers the potential of elaborating „an alternative constitutional memory.‰353 Should the opportunity to revisit the modern CourtÊs Article III formalism arise, the Court should be encouraged to do so.

3. The Middle Ground: Applying the Sharif Framework to

Judicial Recess Appointees

A more pragmatic solution to the tension identified in this Article would be to adopt a compromise approach to the validity of future judicial recess appointments. Courts (or perhaps the Judicial Conference) could clarify that such appointees may be assigned cases on the condition that all parties consent to that assignment. If, however, either or both parties sought a life-tenured judge, they would receive a different assignment.

In several contexts, including cases before magistrate judges and bankruptcy judges, the Supreme Court has allowed matters that would normally be reserved for an Article III judge to proceed before a non-life tenured judge, so long as all parties consent to that adjudication. In Wellness International Network v. Sharif, the Court explained that:

Thus, so long as all parties consent, and appeal to an Article III court remains available, the Court has been willing to tolerate departures from its otherwise strict jurisprudence on nonArticle III adjudication.355

Future recess appointees could be assigned cases on the basis of consent by allowing parties to receive reassignment should

they submit a timely objection to a court clerk. This would allow temporary judges to fill a critical vacancy and begin work. Consent would likely be granted in many cases, allowing temporary judges to alleviate staffing shortages. At the same time, parties in politically sensitive cases with concerns about judicial independence could shield themselves from judges whose future status depends on pending action by the political branches.

Indeed, similar approaches are already in use. The Western District of Washington assigns roughly twelve percent of its civil cases to magistrates.356 If either party declines to consent, the clerk reassigns the case to a life-tenured district judge.357 Any party that does not decline is deemed to have accepted the magistrateÊs assignment.358 This procedure has been affirmed by the Ninth Circuit.359 Through a similar process, recess-appointed lower court judges could assume a meaningful workload and begin doing their jobs without infringing on the rights of litigants to access a judge fully insulated from political pressure.

Whether this solution would address problems posed by a new recess appointment to the Supreme Court is less clear. The Sharif framework cannot be directly applied to recess-appointed justices, as they are not subject to the supervisory authority of a life-tenured judge on a higher court.360 Some have also criticized the CourtÊs Article III consent doctrine more broadly,361 and Sharif itself was decided by a narrow majority and may lack support from the current Court. Nevertheless, adjudication by consent pending confirmation perhaps represents the least disruptive way of handling any future judicial recess appointments. This approach would go some way toward harmonizing an existing tension in established doctrine.

CONCLUSION

Over two centuries after William Drayton received the nationÊs first temporary commission to an Article III court, the recess-appointed judge remains an anomaly within the constitutional design. Its frequent use by the initial administrations reflects a practical and flexible approach to early court systems that has largely been stripped from the established memory of Article III.

This Article has explored this contradiction, tracing how temporary Article III judges have been woven into the early history of the federal judiciary. By unearthing neglected records of early action by temporary judges, it has contradicted the claim that Founding-Era recess appointees declined to act before their confirmation. This historical reality complicates and disrupts originalist justifications for strict formalism with respect to nonArticle III adjudication.

By condemning even slight deviations or departures from a rigid life tenure requirement, current doctrine stifles the development of the judicial system and preempts potentially effective reforms. A balance between flexibility and formalism more accurately aligns with early practice and the needs of the modern federal system.

APPENDIX: ARTICLE III RECESS APPOINTMENTS BY DECADE

--- FOOTNOTES ---

† Associate Professor of Law at the University of Missouri School of Law. The author gratefully acknowledges feedback and suggestions from Dolan Bortner, Andrew Jordan, Rafael Pardo, Sandra Sperino, James Toomey, and all participants at the University of Iowa College of Law faculty workshop. Cindy Shearrer provided valuable archival research support and Alex Besharat provided helpful research assistance. The author also thanks the archivists of the National Archives for the public service they provide. Copyright © 2026 by Alexander Gouzoules.

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1. See, e.g., Stern v. Marshall, 564 U.S. 462, 483–84 (2011) (holding that judges without life tenure may not exercise the „judicial Power of the United States‰).

2. See, e.g., Sec. & Exch. CommÊn v. Jarkesy, 144 S. Ct. 2117, 2128 (2024); Stern, 564 U.S. at 483–84; N. Pipeline Constr. Co. v. Marathon Pipe Line Co., 458 U.S. 50, 59–60 (1982); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2284 (2024) (Gorsuch, J., concurring); Wellness IntÊl Network, Ltd. v. Sharif, 575 U.S. 665, 689 (2015) (Roberts, C.J., dissenting).

3. See, e.g., Jarkesy, 144 S. Ct. at 2128; Stern, 564 U.S. at 483–84; Marathon, 458 U.S. at 59; Loper Bright, 144 S. Ct. at 2284 (Gorsuch, J., concurring); Sharif, 575 U.S. at 689 (Roberts, C.J., dissenting).

4. See, e.g., Stern, 546 U.S. at 484; Marathon, 458 U.S. at 60; Jarkesy, 144 S. Ct. at 2143–44 (Gorsuch, J., concurring); Sharif, 575 U.S. at 689 (Roberts, C.J., dissenting); Loper Bright, 144 S. Ct. at 2284 (Gorsuch, J., concurring).

5. Stern, 564 U.S. at 503 (quoting Reid v. Covert, 354 U.S. 1, 39 (1957) (plurality opinion . This Article is primarily concerned with the „new formalism‰ of the Roberts Court, especially as applied to non-Article III adjudication. See, e.g., Noah A. Rosenblum, History and Fetishism in the New Separation of Powers Formalism, 173 U. PA. L. REV. 2151, 2153–54 (2025) (noting the CourtÊs „new formalism‰); Richard H. Fallon, Jr., Non-Article III Federal Tribunals: An Essay on the Relation Between Theory and Practice, 99 NOTRE DAME L. REV. 1691, 1692–93 (2024) (identifying and explaining the formalist position). But contemporary Article III formalism has antecedents in Lochner-era cases that were, at least temporarily, abandoned in the mid-century. See Evans v. Gore, 253 U.S. 245, 246 (1920) (holding that the Compensation Clause bars the application of new, generally applicable taxes on existing Article III judges), overruled by OÊMalley v. Woodrough, 307 U.S. 277 (1939).

6. See Ortiz v. United States, 138 S. Ct. 2165, 2190 (2018) (Alito, J., dissenting); Stern, 564 U.S. at 504 (Scalia, J., concurring); Marathon, 458 U.S. at 66; Jarkesy, 144 S. Ct. at 2135; Sharif, 575 U.S. at 690 (Roberts, C.J.,

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dissenting); see also Fallon, supra note 5, at 1692 (describing the „historicalexceptions‰ theory).

7. See Stern, 564 U.S. at 504 (Scalia, J., concurring); Sharif, 575 U.S. at

689 (Roberts, C.J., dissenting).

8. See, e.g., Stern, 564 U.S. at 503; Marathon, 458 U.S. at 50; Sharif, 575 U.S. at 718 (Thomas, J., dissenting). Other impacted areas include administrative law and international dispute resolution. See Anne Joseph OÊConnell, Bureaucracy at the Boundary, 162 U. PA. L. REV. 841, 898 n.294 (2014) (noting Article III questions surrounding „federal-international adjudicatory entities‰); Kent Barnett, Resolving the ALJ Quandary, 66 VAND. L. REV. 797, 826 (2013) (noting constitutional questions regarding adjudication by administrative law judges).

9. See, e.g., Stern, 564 U.S. at 504; Marathon, 458 U.S. at 50.

10. See Anthony J. Casey & Aziz Z. Huq, The Article III Problem in Bankruptcy, 82 U. CHI. L. REV. 1155, 1213 (2015); Thomas E. Plank, Why Bankruptcy Judges Need Not and Should Not Be Article III Judges, 72 AM. BANKR. L.J. 567, 567 (1998). 11. See John A.E. Pottow, A New Approach to Executory Contracts, 96 TEX. L. REV. 1437, 1465 n.152 (2018) (referring to Stern v. Marshall as „this generationÊs fount of bankruptcy litigation‰); Brook E. Gotberg, Restructuring the Bankruptcy System: A Strategic Response to Stern v. Marshall, 87 AM. BANKR. L.J. 191, 193 (2013) (analyzing the impact of Stern v. Marshall). But see Jonathan M. Seymour, Bankruptcy in Conflict, 98 AM. BANKR. L.J. 561, 587 (2024) (observing that „district court judges . . . routinely endorse bankruptcy court recommendations without edits,‰ raising the question of whether the „Article III cases really matter‰).

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12. Anthony J. Casey & Joshua C. Macey, Purdue Pharma and the New

Bankruptcy Exceptionalism, 2024 SUP. CT. REV. 365, 367 (2024). 13. See, e.g., Sec. & Exch. CommÊn v. Jarkesy, 144 S. Ct. 2117, 2143–44 (2024) (Gorsuch, J., concurring) (arguing that administrative law judges and agency lawyers were „servants of the same master‰). However, Richard Fallon noted that the „Justices might exhibit more tolerance for private rights adjudication by administrative agencies than by bankruptcy courts.‰ Fallon, supra note 5, at 1718.

14. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 15. Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2284 (2024) (Gor-

such, J., concurring). 16. See Stephen Jay Gould, Sociobiology: The Art of Storytelling, 16 NEW SCIENTIST 530, 530 (1978). 17. See, e.g., Letter from George Washington appointing Thomas Johnson to the Supreme Court (Aug. 5, 1791), in 1 DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, at 74, 74 (Maeva Marcus et al. eds., 1985) (granting the position of Associate Justice to Thomas Johnson „during his good Behavior, and until the end of the next Session of the Senate of the United States, and no longer‰).

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18. See infra Appendix. Data was collected from the archives of the Federal Judicial Center. See generally Biographical Directory of Article III Federal Judges, 1789-Present, FED. JUD. CTR., http://www.fjc.gov/history/judges [https://perma.cc/LF5S-MR2C]. 19. See infra Part II.B.1, II.B.2.

20. Evans v. Stephens, 544 U.S. 942, 942–43 (2005) (Stevens, J., concurring in denial of petition for cert.) („[I]t would be a mistake to assume that our disposition of this petition constitutes a decision on the merits of whether the President has the constitutional authority to fill future Article III vacancies, such as vacancies on this Court, with appointments made absent consent of the Senate during short intrasession Ârecesses.ʉ).

21. Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004) (en banc), cert. denied, 554 U.S. 942 (2005); United States v. Woodley, 751 F.2d 1008, 1014 (9th Cir. 1985) (en banc); United States v. Allocco, 305 F.2d 704, 706 (2d Cir. 1962). 22. See Stern v. Marshall, , 483–84 (2011) (holding that judges without life tenure may not exercise the „judicial Power of the United States‰); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 60 (1982) (stating that „the Âjudicial Power of the United StatesÊ must be reposed in an independent Judiciary‰). 23. See Fallon, supra note 5, at 1692–94 (linking Article III formalism to a „form of applied originalism,‰ while noting that the functionalist view of Article III is „grouped under the rubric of Âliving constitutionalismʉ); see also Shalev Gad Roisman, The Limits of Formalism in the Separation of Powers, 16 J. LEGAL ANALYSIS 178, 181 (2024) („[T]he prevailing method of separation of powers formalism today consists of (1) a commitment to resolving separation of powers disputes using rules, rather than standards; (2) that are derived from the original public meaning of the Constitution.‰); Ofer Raban, Between Formalism and Conservatism: The Resurgent Legal Formalism of the Roberts Court, 8 N.Y.U. J.L. & LIBERTY 343, 368 (2014) (defining the „new formalism‰ as grounded in „textualism (in the statutory realm) and originalism (in the constitutional realm)‰); Gary Lawson, Territorial Governments and the Limits of Formalism, 78 CALIF. L. REV. 853, 859–60 (1990) („Formalism, at least in my hands, is an application of originalist textualism to questions of constitutional structure.‰).

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24. See Judith Resnik, Judicial Selection and Democratic Theory: Demand, Supply, and Life Tenure, 26 CARDOZO L. REV. 579, 629 n.177 (2005) („[J]udges dependent on renomination by the Executive in a relatively short time frame lack the kind of independence guaranteed by both the Due Process Clause and Article III.‰). 25. See SCOTT E. GRAVES & ROBERT M. HOWARD, JUSTICE TAKES A RECESS: JUDICIAL APPOINTMENTS FROM GEORGE WASHINGTON TO GEORGE W. BUSH 96– 97 (2009) („[R]ecess-appointed judges did alter their voting pre-confirmation, based on their observed behavior afterward.‰). Graves and Howard studied patterns of 20th and early 21st century judges. See id. at 63. This Article focuses primarily on earlier periods. 26. See, e.g., Stern, 564 U.S. at 484; Marathon, 458 U.S. at 60; Sec. & Exch. CommÊn v. Jarkesy, 144 S. Ct. 2117, 2143–44 (2024) (Gorsuch, J., concurring); Wellness IntÊl Network, Ltd. v. Sharif, , 689 (2015) (Roberts, C.J., dissenting); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2284 (2024) (Gorsuch, J., concurring). 27. See, e.g., Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004) (en banc), cert. denied, , 942 (2005). 28. See Stern, 564 U.S. at 503.

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Justices who are drawn to originalism are now likely to see the historical-exceptions analytical paradigm·slightly reframed as reflecting purported original understandings of permissible categories of non-Article III adjudication·as supported or even entailed by originalist commitments. In a closely related development, critics of the functionalist model have increasingly attacked it by adopting the originalist complaint that living constitutionalism is untethered to law and affords judges undue discretion.29

29. Fallon, supra note 5, at 1708.

30. See JACK M. BALKIN, MEMORY AND AUTHORITY: THE USES OF HISTORY IN CONSTITUTIONAL INTERPRETATION 186–87 (2024) (describing memory entrepreneurship as „efforts of people and institutions that want people to remember the past differently or remember different things‰). 31. Id. at 186.

32. Wellness IntÊl Network, Ltd. v. Sharif, (2015).

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33. See, e.g., Alexander I. Platt, Note, Preserving the Appointments Safety Valve, 30 YALE L. & POLÊY REV. 255, 301 (2011); Thomas A. Curtis, Note, Recess Appointments to Article III Courts: The Use of Historical Practice in Constitutional Interpretation, 84 COLUM. L. REV. 1758, 1759 (1984); see also Mark Tushnet, Constitutional Hardball, 37 J. MARSHALL L. REV. 523, 525–26 (2004) (arguing that the Constitution „clearly authorizes‰ recess appointments but that modern „restraint on the use‰ of this power might „amount to a weak pre-constitutional convention‰). 34. See William Ty Mayton, Recess Appointments and an Independent Judiciary, 20 CONST. COMMENT. 515, 541 (2003) (noting „an initial thirty-four years (from 1796 until 1828) when no [lower court] recess appointees heard cases prior to their confirmation‰); see also Steven M. Pyser, Recess Appointments to the Federal Judiciary: An Unconstitutional Transformation of Senate Advice and Consent, 8 U. PA. J. CONST. L. 61, 84–85 (2006) („The vast majority of recess appointees have declined to issue or sign decisions prior to confirmation.‰). 35. See Mayton, supra note 34, at 534; Pyser, supra note 34, at 84–85. 36. See, e.g., Andrew Willinger, The Territories Under Text, History, and Tradition, 101 WASH. U. L. REV. 1, 52 (2023) (discussing the importance of postratification history for constitutional interpretation in the context of the Second Amendment); William Baude, Constitutional Liquidation, 71 STAN. L. REV. 1, 7 (2019) (quoting the Court in Noel Canning, stating „that it might require a

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regular course of practice to liquidate and settle the meaning‰ of certain constitutional questions). 37. See Mayton, supra note 34, at 540 (arguing that „common electronic databases can today be checked to see whether these judges signed and delivered any opinions in the period between their recess appointment and later Senate confirmation‰ and concluding that only thirty-one percent of all recess appointees decided cases before confirmation); Jonathan Turley, Recess Appointments in the Age of Regulation, 93 B.U. L. REV. 1523, 1534 n.46 (2013) (citing the Mayton study as arguing that recess appointees did not generally exercise judicial power); see also Pyser, supra note 34, at 66 („The majority of recess appointees did not hear any cases until a Senate confirmation ensured lifetime tenure and guaranteed compensation. In one study of recess appointments to the lower courts, only thirty-one percent of 294 appointees heard cases prior to confirmation.‰); James Durling & E. Garrett West, Appointments Without Law, 105 VA. L. REV. 1281, 1293 n.41 (2019) (citing PyserÊs account).

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A. THE RECESS APPOINTMENT POWER

38. NLRB v. Noel Canning, 573 U.S. 513, 518–19 (2014). 39. U.S. CONST. art. II, § 2, cl. 3. 40. Peter Strauss, The Pre-Session Recess, 126 HARV. L. REV. F. 130, 130 (2013); see also Michael B. Rappaport, The Original Meaning of the Recess Appointments Clause, 52 UCLA L. REV. 1487, 1563 n.228 (2005) („The Framers clearly anticipated that Congress would meet only for a portion of the year.‰); GRAVES & HOWARD, supra note 25, at 95 („Travel was limited and inconsistent at best, illness a constant, and lifespan short.‰).

41. Mayton, supra note 34, at 522 („In public debate on the Constitution,

comment on the recess appointments clause is slight to nonexistent.‰).

42. THE FEDERALIST NO. 67, at 378 (Alexander Hamilton) (Clinton Rossiter

ed., 1961). 43. Id. 44. See id. 45. See id.

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46. See, e.g., Jonathan Turley, Constitutional Adverse Possession: Recess Appointments and the Role of Historical Practice in Constitutional Interpretation, 2013 WIS. L. REV. 965, 984 (2013) (noting WashingtonÊs recess appointment of John Rutledge as Chief Justice after the resignation of John Jay due to „long congressional recesses‰); Oscar Schachter, Philip JessupÊs Life and Ideas, 80 AM. J. INTÊL L. 878, 888–89 (1986) (noting TrumanÊs recess appointment of Phillip Jessup as representative to the U.N. General Assembly despite Senate opposition due to McCarthy-era allegations of communist sympathies); Victor Williams, NLRB v. Noel Canning Exposes Judicial Incapacity: „Junior Varsity Politicians‰ Foul the PresidentÊs Textual Appointment Discretion, 43 RUTGERS L. REC. 60, 71–78 (2016) (noting use of recess appointments by the Kennedy and Johnson Administrations to bypass prejudiced Senate opposition to Black, Jewish, and female nominees); Peck v. United States, 39 Ct. Cl. 125, 126 (1904) (reviewing the recess appointment for a naval officer in recognition of „eminent and conspicuous conduct in battle‰).

47. Case of District Attorney of U.S., 7 F. Cas. 731, 736–38 (E.D. Pa. 1868). 48. In re Farrow, 3 F. 112, 112 (C.C.N.D. Ga. 1880). 49. NLRB v. Noel Canning, , 526 (2014) („We have not previously interpreted the Clause, and, when doing so for the first time in more than 200 years, we must hesitate to upset the compromises and working arrangements that the elected branches of Government themselves have reached.‰).

50. Thomas R. Bell, The Law: Perverse Politics: Recess Appointments, Noel

Canning, and the Limits of Law, 48 PRESIDENTIAL STUD. Q. 373, 376 (2018). 51. Noel Canning, 573 U.S. at 519. 52. Id. at 537.

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53. Id. at 538. 54. See Cass R. Sunstein, Unanimity and Disagreement on the Supreme Court, 100 CORNELL L. REV. 769, 784 (2015) („[T]he Court was unanimous on the judgment but divided 5-4 on the most fundamental questions.‰). 55. Noel Canning, 573 U.S. at 569 (Scalia, J., concurring). 56. Id. at 579–80. 57. Id. at 569. 58. See, e.g., Samuel Issacharoff & Trevor Morrison, Constitution by Convention, 108 CALIF. L. REV. 1913, 1938 (2020) (arguing that the Court rejected „a strict textualist approach‰ and instead „privileged historical practice‰); Jamal Greene, Rule Originalism, 116 COLUM. L. REV. 1639, 1675 (2016) (construing the majority opinion as „largely, though not entirely, originalist‰); William Baude, Is Originalism Our Law?, 115 COLUM. L. REV. 2349, 2372 (2015) (noting that the majority „endors[ed] modern practice despite arguments from text, structure, and original meaning‰). But see Ronald J. Krotoszynski, Jr., Transcending Formalism and Functionalism in Separation-of-Powers Analysis: Reframing the Appointments Power After Noel Canning, 64 DUKE L.J. 1513, 1545 (2015) („[B]oth Noel Canning opinions are properly characterized as formalist in character.‰). 59. Noel Canning, 573 U.S. at 569 (Scalia, J., concurring). 60. See Evans v. Stephens, , 942 (2005) (Stevens, J., concurring in denial of petition for cert.) (discussing the constitutional questions raised in the case).

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B. GOOD BEHAVIOR

61. See Martin H. Redish, Judicial Discipline, Judicial Independence, and the Constitution: A Textual and Structural Analysis, 72 S. CAL. L. REV. 673, 698–99 (1999) („[T]he Supreme Court is undoubtedly correct when it concludes that the good-behavior language does nothing more than provide a cross-reference to the impeachment process.‰). But see Saikrishna Prakash & Steven D. Smith, How to Remove a Federal Judge, 116 YALE L.J. 72, 82 (2006) (arguing that good behavior and removal through impeachment have been mistakenly conflated).

62. Stern v. Marshall, , 469 (2011).

63. See Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, 129 YALE L.J. 148, 173 (2019) („While there are arguments that Âgood behaviorÊ can coexist with a term-of-years appointment, they rest on comparatively weak grounds.‰); see also Martin H. Redish, Good Behavior, Judicial Independence, and the Foundations of American Constitutionalism, 116 YALE L.J. 139, 141 (2006) (discussing the protections of federal judges); David R. Stras & Ryan W. Scott, Retaining Life Tenure: The Case for A „Golden Parachute,‰ 83 WASH. U. L.Q. 1397, 1405 (2005) (explaining „grants of office at the founding‰); Steven P. Croley, The Majoritarian Difficulty: Elective Judiciaries and the Rule of Law, 62 U. CHI. L. REV. 689, 707 (1995) (discussing judicial independence); Raoul Berger, Impeachment of Judges and „Good Behavior‰ Tenure, 79 YALE L.J. 1475, 1478 (1970) (describing the history of „good behavior‰). But see Prakash & Smith, supra note 61, at 90 („Contrary to what many suppose, good-behavior tenure was not reflexively associated with life tenure.‰). 64. See generally Epps & Sitaraman, supra note 63, at 185 (discussing the authorsÊ federal judge proposal being questioned by formalists). 65. See Judith Resnik, Judicial Independence and Article III: Too Little and Too Much, 72 S. CAL. L. REV. 657, 658–59 (1999) (explaining that the number

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of non-tenured judges „far exceeds‰ life-tenured judges); see also Resnik, supra note 24, at 580 („[C]onflict over life-tenured judgeships is neither surprising nor necessarily inappropriate.‰); Ward Farnsworth, The Ideological Stakes of Eliminating Life Tenure, 29 HARV. J.L. & PUB. POLÊY 879, 880 (2006) (discussing arguments against life tenure for Supreme Court justices). 66. See, e.g., Ellen E. Sward, Legislative Courts, Article III, and the Seventh Amendment, 77 N.C. L. REV. 1037, 1040 (1999) („The life tenure and salary protections reflect the separation of powers principle behind our constitutional government, ensuring that judges are independent of the political process.‰). 67. See, e.g., Christopher L. Eisgruber, Marbury, Marshall, and the Politics of Constitutional Judgment, 89 VA. L. REV. 1203, 1209 (2003) (noting that Hamilton „suggested that life tenure disposed the judiciary to protect Âindividual rightsÊ and Âthe minor party in the communityʉ).

68. Life tenure is believed to contribute to the quality of judicial decision making by attracting high quality personnel to the federal bench. See John Paul Stevens, Assoc. Just., U.S. Sup. Ct., Northwestern University School of LawÊs 151st Commencement Address (May 13, 2011), in 106 NW. U. L. REV. 851, 852 (2012) („The guarantee of life tenure affects the quality of the judicial process without dictating any outcomes.‰). It protects „judicial individualism‰ by shielding any given judge from pressure that might be applied by other judges. See Irving R. Kaufman, Chilling Judicial Independence, 88 YALE L.J. 681, 713 (1979) („[I]t is . . . essential to protect the independence of the individual judge, even from incursions by other judges.‰); N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 59 n.10 (1981) („The guarantee of life tenure insulates the individual judge from improper influences not only by other branches but by colleagues as well.‰). But see 28 U.S.C. § 354(a)(2)(B) (allowing judicial colleagues to certify disability of an Article III judge pursuant to specified standards and procedures). 69. See United States ex rel. Toth v. Quarles, 350 U.S. 11, 17 (1955); Kaufman, supra note 68, at 703 (explaining the „history and logic‰ behind „good behavior‰).

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70. Under the Judiciary Act of 1789, the core initial federal trial courts were the circuit courts, with panels consisting of the local district court judge, joined by Supreme Court justices whose duties included circuit riding. Wythe Holt, „The Federal Courts Have Enemies in All Who Fear Their Influence on State Objects‰: The Failure to Abolish Supreme Court Circuit Riding in the Judiciary Acts of 1792 and 1793, 36 BUFF. L. REV. 301, 305–06 (1987). The goal had been a lean and cheap judiciary. See 1 ANNALS OF CONG. 813–14 (Joseph Gales & John Seaton eds., 1789) (Statement of Rep. Livermore) (arguing against establishing a judicial system „replete with expense‰). Federalist reformers envisioned a new position·a permanent „circuit judge,‰ which would obviate the need for circuit riding. Under John Adams, the Federalists enacted new judiciary acts, creating over nineteen new Article III judges who would sit permanently on the reorganized circuit courts. See Kathryn Turner, The Midnight Judges, 109 U. PA. L. REV. 494, 494 (1961) (discussing the history of tenured judges). After suffering electoral defeats to JeffersonÊs Democratic Republicans, President Adams nominated, and the Senate confirmed, many of these new judges. Id. It was this set of lame-duck nominations that gave rise to the legendary Marbury v. Madison, though Marbury himself had been commissioned as a justice of the peace, not an Article III judge. 5 U.S. (1 Cranch) 137, 177 (1803). 71. See Jed Glickstein, After Midnight: The Circuit Judges and the Repeal of the Judiciary Act of 1801, 24 YALE J.L. & HUMAN. 543, 543–44 (2012); Turner, supra note 70, at 494 (discussing the changes to circuit judges). 72. See Glickstein, supra note 71, at 543 (discussing the history of „midnight judges‰). 73. Id. The Democratic Republicans had repealed the federalist Bankruptcy Act of 1800 just one year after repealing their judicial reforms.

74. Letter from John Marshall to Oliver Wolcott (Aug. 15, 1803), in 6

PAPERS OF MARSHALL 197, 197 (John F. Hobson ed., 2014). 75. See Aditya Bamzai & Saikrishna Bangalore Prakash, The Executive Power of Removal, 136 HARV. L. REV. 1756, 1813 (2023) (noting that Hamilton objected to repeal „because it cut short the tenure of the midnight judges in violation of Article IIIÊs good-behavior and undiminishable-salary protections‰).

02_MIN_110_5_text.indd 2432 02_MIN_110_5_text.indd 2432

76. Stuart v. Laird, 5 U.S. (1 Cranch) 299, 304 (1803).

77. See id. at 308–09 (explaining the CourtÊs reasoning behind the judgment).

78. There is some dispute in the literature as to the source of that protection, which was not clearly documented. Bloch and Ginsburg wrote that „all the discussants [of the court in the 1860s] assumed that federal courts in the District were Article III courts, a status not clearly established until 1933.‰ See Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of District of Columbia, 90 GEO. L.J. 549, 555–56 n.24 (2002). On the other hand, James Pfander wrote that „Congress also provided the judges of the . . . circuit court of the District of Columbia, an Article I tribunal, with tenure during good behavior.‰ James E. Pfander, Article I Tribunals, Article III Courts, and the Judicial Power of the United States, 118 HARV. L. REV. 643, 688 (2004). Today, the Federal Judicial Center catalogues historical judges of the Circuit Court of the District of Columbia as Article III judges. See Biographical Directory of Article III Federal Judges, 1789-Present, supra note 18. 79. Bloch & Ginsburg, supra note 78, at 553–56 (discussing Judge William Matthew Merrick). 80. See id. 81. Martin S. Lederman, The Law(?) of the Lincoln Assassination, 118 COLUM. L. REV. 323, 394 n.360 (2018). 82. Id. 83. Id.

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84. A recent exception was Newman v. Moore, in which a judge contended that 28 U.S.C. § 354, which authorizes the suspension (though not removal) of judges on grounds of disability, contravenes Article III protections. 151 F.4th 472, 478–79 (D.C. Cir. 2025).

85. Sec. & Exch. CommÊn v. Jarkesy, 144 S. Ct. 2117, 2143 (2024) (Gorsuch, J., concurring) („When the smoke [of the Revolutionary War] settled, the American people went to great lengths to prevent a backslide . . . [so] the Constitution provided that Â[t]he judicial PowerÊ·the power over ÂCasesÊ and ÂControversiesÊ·would lie with life-tenured, salary-protected judges.‰); Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2284 (2024) (Gorsuch, J., concurring) („[T]he framers made a considered judgment to build judicial independence into the ConstitutionÊs design. They vested the judicial power in decisionmakers with life tenure.‰); Kisor v. Wilkie, 139 S. Ct. 2400, 2438 (2019) (Gorsuch, J., concurring) (noting that the framers „gave federal judges life tenure, subject only to removal by impeachment; and they guaranteed that the other branches could not reduce judgesÊ compensation so long as they remained in office . . . not for the comfort of judges, but so that an independent judiciary could better guard the people from the arbitrary use of governmental power‰).

86. Ortiz v. United States, 138 S. Ct. 2165, 2190 (2018) (Alito, J., dissenting) („Under Article III of the Constitution, the judicial power of the United States may be vested only in tribunals whose judges have life tenure and salary protection. ÂThere is no exception to this rule in the Constitution.ʉ (quoting Brenner v. Porter, 50 U.S. (9 How.) 235, 244 (1850 .

87. S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716, 717 (2021) (Roberts, C.J., concurring) („[T]he Constitution also entrusts the protection of the peopleÊs rights to the Judiciary·not despite judges being shielded by life tenure, but because they are.‰); Patchak v. Zinke, 138 S. Ct. 897, 922 (2018) (Roberts, C.J., dissenting) (referencing „judges whose independence from political pressure was ensured by the safeguards of Article III·life tenure and salary protection‰); Bank Markazi v. Peterson, 578 U.S. 212, 241 (2016) (Roberts, C.J., dissenting) („To help ensure the Âcomplete independence of the courts of justice,Ê [the framers] provided life tenure for judges and protection against diminution of their compensation.‰). 88. Ortiz, 138 S. Ct. at 2190 (Alito, J., dissenting).

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89. See Resnik, supra note 24, at 605–07 (describing the „ranks of federal jurists‰). 90. See Andrew Chesley, Note, The Scope of United States Magistrate Judge Authority After Stern v. Marshall, 116 COLUM. L. REV. 757, 772–73 (2016) (describing „magistrate judge authority today‰). 91. See id. (explaining types of magistrate cases). 92. See Stephen I. Vladeck, Petty Offenses and Article III, 19 GREEN BAG 2D 67, 78 (2015) („[A]dding the petty offense jurisdiction of magistrate judges to the non-Article III canon may suggest . . . that there really isnÊt a coherent explanation for why some departures from Article III are permissible, while others are not.‰). A few commentators have objected to magistratesÊ power to decide petty offenses without life tenure. See Adrienne Arnold, Comment, Magistrates and Misdemeanors: Examining Magistrate JudgesÊ Petty-Offense Jurisdiction, 54 HOUS. L. REV. 209, 237 (2016) („In light of the importance of life tenure to judicial independence, the fact that magistrate judges (who are not life-tenured) may now make unsupervised decisions in criminal trials is certainly noteworthy.‰). 93. See Richard H. Fallon, Jr., Of Legislative Courts, Administrative Agencies, and Article III, 101 HARV. L. REV. 915, 922 (1988) (discussing CongressÊs „employ[ing] of legislative courts‰).

94. MurrayÊs Lessee v. Hoboken Land & Imp. Co., 59 U.S. (18 How.) 272, 284 (1855) („[T]here are matters, involving public rights . . . which congress may or may not bring within the cognizance of the courts of the United States, as it may deem proper.‰).

95. Am. Ins. Co. v. 356 Bales of Cotton, 26 U.S. (1 Pet.) 511, 546 (1828)

(affirming the constitutionality of territorial courts in Florida).

96. Dynes v. Hoover, 61 U.S. (20 How.) 65, 83 (1857) (upholding the consti-

tutionality of military courts).

97. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 70

(1981).

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98. See Fallon, supra note 5, at 1693.

99. Ralph Brubaker, On the Nature of Federal Bankruptcy Jurisdiction: A General Statutory and Constitutional Theory, 41 WM. & MARY L. REV. 743, 755 (2000). 100. See id. (discussing „related to‰ disputes). 101. See id. (discussing bankruptcy disputes generally). 102. Nor do they resemble military tribunals or territorial courts, for more straightforward reasons. 103. See DAVID A. SKEEL JR., DEBTÊS DOMINION: A HISTORY OF BANKRUPTCY LAW IN AMERICA 157–59 (2001) („Along with nearly all the principal interest groups·from bankruptcy lawyers to creditors·bankruptcy judges favored Article III status. Their chief opposition came from other federal judges, who quite candidly worried that elevating bankruptcy judges would diminish their prestige.‰); see also Linda Coco, Stigma, Prestige and the Cultural Context of Debt: A Critical Analysis of the Bankruptcy JudgeÊs Non-Article III Status, 16 MICH. J. RACE & L. 181, 182–83 (2011) (discussing a 1978 congressional bill designed to expand the power of bankruptcy courts). 104. Id.

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105. Id. at 191. 106. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 56–57 (1981). 107. Id. at 57. 108. Id. at 60. 109. Id. at 87–92. 110. Id. at 88. 111. 28 U.S.C. § 157. 112. See Erwin Chemerinsky, Formalism Without a Foundation: Stern v. Marshall, 2011 SUP. CT. REV. 183, 198 (2011) (arguing that MarathonÊs liberal plurality was responding to „a number of bills [that] were introduced into the

02_MIN_110_5_text.indd 2437 02_MIN_110_5_text.indd 2437

Article III protects liberty not only through its role in implementing the separation of powers, but also by specifying the defining characteristics of Article III judges. The colonists had been subjected to judicial abuses at the hand of the Crown, and the Framers knew the main reasons why: because the King of Great Britain „made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.‰ . . . . By appointing judges to serve without term limits, and restricting the ability of the other branches to remove judges or diminish their salaries, the Framers sought to ensure that each judicial decision would be rendered, not with an eye toward

new Congress to strip the Supreme Court and the lower federal courts of the ability to decide particular issues, such as challenges to state laws restricting abortion or allowing prayer in public schools‰); Pfander, supra note 78, at 646– 47 („After an ill-fated and relatively short-lived attempt to establish categorical limits to non-Article III adjudication in the Northern Pipeline case, the Court has seemingly retreated to a multifactored balancing test that includes judicial independence as one factor and often results in the validation of Article I tribunals.‰). 113. Chemerinsky, supra note 112, at 199. 114. Id. 115. Ralph Brubaker, Article IIIÊs Bleak House (Part I): The Statutory Limits of Bankruptcy JudgeÊs Core Jurisdiction, 31 BANKR. L. LETTER, Aug. 2011, at 1, 1–5.

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currying favor with Congress or the Executive, but rather with the „[c]lear heads . . . and honest hearts‰ deemed „essential to good judges.‰116

116. Stern v. Marshall, , 483–84 (2011). 117. Id. 118. Id. 119. Id. at 483. 120. Id. at 503 (quoting Boyd v. United States, 116 U.S. 616, 635 (1886 . 121. See Chemerinsky, supra note 112, at 200–06. 122. Cf. Todd D. Rakoff, Statutory Interpretation as a Multifarious Enterprise, 104 NW. U. L. REV. 1559, 1571 (2010) (noting that the implications of democratic accountability for state judges have been underdiscussed). 123. Ralph Brubaker has noted that, precisely because bankruptcy jurisdiction involves state-law claims that are not otherwise heard in federal court, sensitive issues of federalism are implicated. See Ralph Brubaker, A „Summary‰ Statutory and Constitutional Theory of Bankruptcy JudgesÊ Core Jurisdiction After Stern v. Marshall, 86 AM. BANKR. L.J. 121, 138 (2012).

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C. RECONCILING LIFE TENURE AND RECESS APPOINTEES

124. Wellness IntÊl Network, Ltd. v. Sharif, , 688 (2015) (Roberts, C.J., dissenting). 125. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 57 (1982). 126. Stern v. Marshall, , 483 (2011). 127. Sharif, 575 U.S. at 688 (Roberts, C.J., dissenting). 128. Ortiz v. United States, 138 S. Ct. 2165, 2190 (2018) (Alito, J., dissenting). 129. See, e.g., Chemerinsky, supra note 112, at 205 (noting cases that „emphasized the need for a functional and not a formalistic approach to determining

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when non-Article III courts are permissible‰); Durling & West, supra note 37, at 1305 (noting HamiltonÊs explanation that the PresidentÊs power to fill vacancies would not extend to the appointment of senators); Roy E. Brownell II, Can the President Recess Appoint a Vice President?, 42 PRESIDENTIAL STUD. Q. 622 (2012) (explaining that the recess-appointment power does not extend to vicepresidential vacancies). 130. Some may have also confused TaneyÊs previous role as JacksonÊs recessappointed Secretary of the Treasury with his unsuccessful 1835 nomination for the position of Associate Justice. In any event, Taney was nominated and confirmed to be Chief Justice in 1836. 131. New Constitutional Question, RICHMOND ENQUIRER, July 21, 1835, at 3. 132. Id.

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133. United States v. Allocco, 305 F.2d 704, 705 (1962); see also David R. Stras & Ryan W. Scott, Navigating the New Politics of Judicial Appointments, 102 NW. U. L. REV. 1869, 1907 (2008) („Eisenhower used the recess appointment power strategically to appoint [judges] right before a national election.‰). 134. Allocco, 305 F.2d at 704. 135. Id. at 708–09. 136. Id. 137. Id. at 709. 138. Id. 139. See infra Part II.B.3. 140. See infra Appendix. 141. See generally Allocco, 305 F.2d at 708–10.

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142. Ray v. Blair, 343 U.S. 214, 228–29 (1952) („History teaches that the electors were expected to support the party nominees. Experts in the history of government recognize the longstanding practice.‰). 143. Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 956–58 (1983); id. at 959–60 (Powell, J., concurring in judgment). 144. United States v. Woodley, 726 F.2d 1328, 1329 (9th Cir. 1983), rehÊg granted, opinion withdrawn, 732 F.2d 111 (9th Cir. 1984), revÊd, 751 F.2d 1008 (9th Cir. 1985) (en banc). 145. See infra note 179. 146. See Woodley, 726 F.2d at 1330. 147. Id. at 1339. 148. Id.

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149. Id. 150. E.g., Stuart v. Laird, 5 U.S. (1 Cranch) 299, 309 (1803) (upholding circuit riding requirements based on continuous practice in the face of constitutional challenge). 151. Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 956–58 (1983). 152. Woodley, 751 F.2d at 1009. 153. Id. at 1012. 154. Id. at 1015 (Browning, C.J., dissenting). 155. See Mayton, supra note 34, at 540. 156. Id.

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157. Evans v. Stephens, 387 F.3d 1220, 1221 (11th Cir. 2004). 158. See Response Brief of Plaintiffs-Appellees and Amicus Curiae, United States Sen. Edward M. Kennedy, Pro Se, in Support of Plaintiffs-AppelleesÊ Motion to Disqualify Member of the Court on the Ground that His Recess Appointment Is Invalid at 1, Evans v. City of Zebulon, 351 F.3d 485 (11th Cir. 2003) (No. 02-16424), 2004 WL 3589829, at *1. 159. Id. at 2–3. 160. Evans, 387 F.3d at 1221. 161. Id. at 1223. 162. Id. at 1224. 163. Evans v. Stephens, , 942 (2005) (Stevens, J., respecting denial of cert.). 164. Id. 165. Id. 166. Id.

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167. See Brubaker, supra note 123, at 189. 168. See Chemerinsky, supra note 112, at 199–200. 169. See, e.g., Evans v. Stephens, 387 F.3d 1220, 1224 (11th Cir. 2004). 170. See id. at 1223–24 („History unites with our reading to support our conclusion. As we understand it, beginning with President Washington, over 300 recess appointments to the federal judiciary (including fifteen to the Supreme Court) have been made.‰). 171. The Appendix charts recess appointments by decade. Data was collected from the Federal Judicial CenterÊs Biographical Directory of Article III Federal Judges. Biographical Directory of Article III Judges, 1789-present, supra note 18. Sources are in conflict with respect to a few judges, including even Justice Holmes. Compare Mayton, supra note 34, at 536 (listing a recess appointment for Justice Holmes), with Note, Recess Appointments to the Supreme Court·Constitutional But Unwise?, 10 STAN. L. REV. 124, 125 (1957) (listing Supreme Court recess appointments without Justice Holmes). There is no evidence that Justice Holmes was recess-appointed; Theodore Roosevelt appears to have initiated the recess-appointment process but then changed his mind, opting instead for a traditional appointment. See Matthew Madden, Anticipated Judicial Vacancies and the Power to Nominate, 93 VA. L. REV. 1135, 1160 & n.91 (2007) („[W]hile President Roosevelt may have begun the recess

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appointments process, there is no evidence that he ever signed a commission or formally transmitted it to Holmes.‰). That there has been some confusion as to whether even Justice Holmes, arguably the most well-known judge in American history, was recess appointed suggests that caution is warranted regarding records of older and lower-profile recess appointees. 172. Biographical Directory of Article III Judges, 1789-present, supra note 18. 173. See Michael J. Gerhardt, Constitutional Arrogance, 164 U. PA. L. REV. 1649, 1658–59 (2016). 174. Biographical Directory of Article III Judges, 1789-present, supra note 18. 175. See Pyser, supra note 34, at 66 („Most of the 300 recess appointments were concentrated from 1897–1963. During this sixty year period, 200, or twothirds of all recess appointments were made.‰). 176. Stras & Scott, supra note 133, at 1907. 177. No judicial recess appointments were made by William Henry Harrison, John Tyler, Richard Nixon, Gerald Ford, Ronald Reagan, George H.W. Bush, Barack Obama, Donald Trump (through the date of publication), or Joe Biden. See Biographical Directory of Article III Judges, 1789-present, supra note 18. 178. See infra Appendix. See generally Biographical Directory of Article III Judges, 1789-present, supra note 18.

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https://www.fjc.gov/history/judges/gregory-roger-l

179. Biographical Directory of Article III Judges, 1789-present, supra note 18; see Heen, Walter Meheula, FED. JUD. CTR., https://www.fjc.gov/ history/judges/heen-walter-meheula [https://perma.cc/NU2C-6P6G] (recess appointed by President Carter on January 1, 1981); Gregory, Roger L., FED. JUD. CTR., [https://perma.cc/ H2HA-37TG] (recess appointed by President Clinton on December 27, 2000); see also infra Appendix. 180. Biographical Directory of Article III Judges, 1789-present, supra note 18; see Pickering, Charles Willis, Sr., FED. JUD. CTR., https://www.fjc.gov/ history/judges/pickering-charles-willis-sr [https://perma.cc/2HDT-5PZP] (recess appointed by President George W. Bush on January 16, 2004); Pryor, William Holcombe, Jr., FED. JUD. CTR., https://www.fjc.gov/history/judges/pryor-william -holcombe-jr [https://perma.cc/94MJ-VL3T] (recess appointed by President George W. Bush on February 14, 2005); see also infra Appendix. 181. See Joseph Fishkin & David E. Pozen, Asymmetric Constitutional Hardball, 118 COLUM. L. REV. 915, 918 (2018). 182. Siobhan Hughes & Jess Bravin, Trump Demands Republicans Allow Some Nominees to Bypass Senate, WALL ST. J. (Nov. 10, 2024), https://www .wsj.com/politics/trump-demands-republicans-allow-some-nominees-to-bypasssenate-1b59c08c [https://perma.cc/P2X8-3BR4]. 183. See, e.g., Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for Independent Agencies, 96 NOTRE DAME L. REV. 1, 23 n.148 (2020); Reva B. Siegel, Dead or Alive: Originalism as Popular Constitutionalism in Heller, 122 HARV. L. REV. 191, 197 (2008) (critiquing the Heller majority for discounting „evidence drawn from the [second] amendmentÊs drafting history‰ and „appearing to favor evidence remote in time over evidence

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proximate in time to the amendmentÊs ratification‰). A separate but related idea, traceable to James Madison, is that early practice can „liquidate‰ and settle the meaning of initially indeterminate constitutional text. See Willinger, supra note 36, at 52; Baude, supra note 36, at 7. 184. United States v. Rahimi, 144 S. Ct. 1889, 1924 (2024) (Barrett, J., concurring). 185. See Sherif Girgis, OriginalismÊs Age of Ironies, 138 HARV. L. REV. F. 1, 8 (2024) („[A] late practice may add little evidentiary value regarding original meaning. Compared to today, how much better were Anglophones in, say, the 1920s at discerning a wordÊs meaning to speakers in the 1790s?‰); Adam M. Samaha, OriginalismÊs Expiration Date, 30 CARDOZO L. REV. 1295, 1298–99 (2008) („Skeptics of historyÊs use in adjudication might concede that originalism is justifiable when ratification is a recent memory, but hold that originalism has an expiration date.‰). 186. N.Y. State Rifle & Pistol AssÊn v. Bruen, 142 S. Ct. 2112, 2122 (2022); see also Immigr. & Naturalization Serv. v. Chadha, 462 U.S. 919, 959–60 (1983) (Powell, J., concurring in judgment) (invalidating a statutory scheme that had been common since the 1930s). 187. See generally infra Appendix. 188. See Scott A. Keller, Qualified and Absolute Immunity at Common Law, 73 STAN. L. REV. 1337, 1349–50 (2021) (distinguishing between discretionary and ministerial duties). 189. See, e.g., Ex parte Virginia, 100 U.S. 339, 348 (1879) (holding that the selection of jurors „is not a judicial act . . . [i]t is merely a ministerial act,‰ and

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A. ACADEMIC DEBATE OVER THE EXERCISE OF JUDICIAL POWER

BY RECESS APPOINTEES

noting that the selection of „court-criers, tipstaves, sheriffs,‰ and other court personnel is as well). 190. See, e.g., Edward A. Hartnett, Recess Appointments of Article III Judges: Three Constitutional Questions, 26 CARDOZO L. REV. 377, 441–42 (2005) (concluding that the President may make a recess appointment to fill a vacancy on an Article III court); Amelia Frenkel, Defining Recess Appointments Clause „Vacancies,‰ 88 N.Y.U. L. REV. 729, 757 (2013) (noting that „in nearly all of the modern cases‰ courts have concluded that the Recess Appointments

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Clause applies broadly, but that these opinions are consistent with a narrow reading of the term „vacancy‰); Michael Herz, Abandoning Recess Appointments?: A Comment on Hartnett (and Others), 26 CARDOZO L. REV. 443, 459 (2005) (concluding that, although the application of the Recess Appointments Clause to judicial appointments may be anachronistic, it cannot be read out of the constitution); Recess Appointments, supra note 171, at 132 (concluding that historical practice had established that use of the Recess Appointments Clause to appoint Article III judges was not inconsistent with Article III); Curtis, supra note 33, at 1759 (arguing that recess appointments to the federal judiciary are „a permissible exception to Article IIIÊs tenure and salary provisions‰); Tushnet, supra note 33, at 525–26 (arguing that the Constitution „clearly authorizes‰ recess appointments but that modern „restraint on the use‰ of this power might „amount to a weak pre-constitutional convention‰). 191. See Mayton, supra note 34, at 534–39 (reviewing the history of recess appointments to the Supreme Court). 192. See John S. Castellano, Comment, A New Look at Recess Appointments to the Federal Judiciary·United States v. Allocco, 12 CATH. U. L. REV. 29, 34 (1963) („Of the eleven recess appointments to the Supreme Court before Chief Justice Warren, only three (Chief Justice John Rutledge and Justices Levi Woodbury and Benjamin Curtis) assumed their duties on the Court before being confirmed by the Senate.‰). 193. See Mayton, supra note 34, at 534–35. 194. See id. at 535. 195. See id. at 540.

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196. See id. at 541. 197. See id. at 540 n.83. 198. See id. at 540–41. 199. The Southern District of New York, for example, held its first session in November of 1789 and saw its first action commenced in April of 1790. PAUL BURAK, HISTORY OF THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK 1–2 (1962). 200. See, e.g., Turley, supra note 37, at 1604 n.46 (citing the Mayton study to note that recess appointees did not generally exercise judicial power); Pyser, supra note 34, at 66 & n.27 („The majority of recess appointees did not hear any cases until a Senate confirmation ensured lifetime tenure and guaranteed compensation. In one study of recess appointments to the lower courts, only thirtyone percent of 294 appointees heard cases prior to confirmation.‰ (citing Mayton, supra note 34, at 540 ; Durling & West, supra note 37, at 1293 n.41 (citation omitted). On the other side, Edward Hartnett challenged MaytonÊs account by arguing that the absence of published reports did not establish that judges did not hear or decide cases. See Hartnett, supra note 190, at 432 (observing with regard to Supreme Court recess appointments that „simply because neither Mayton nor I have located any published reports . . . does not mean that they did not hear or decide any cases‰). But like MaytonÊs, HartnettÊs article was also written without the benefit of a full historical record. See id. at 433 (contending that, „[as] far as I have been able to tell, no one breathed a doubt about the constitutionality of recess appointments to Article III courts until . . . 1953‰). As discussed above, the issue was raised at least as early as 1835. See supra Part I.C. 201. See supra note 200 and accompanying text.

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202. See, e.g., United States v. Rahimi, 144 S. Ct. 1889, 1924 (2024) (Barrett, J., concurring) (explaining that, for an originalist, history „surrounding the ratification of the text‰ is more valuable than history „that long postdates ratification‰). 203. See Randy E. Barnett & Lawrence B. Solum, Originalism After Dobbs, Bruen, and Kennedy: The Role of History and Tradition, 118 NW. U. L. REV. 433, 481 (2023) („When implementing doctrines are needed to give legal effect to indeterminate constitutional text, originalist judges should consider themselves bound to examine history and tradition that clarifies the original purpose of the constitutional provision.‰). 204. Hartnett reached this conclusion as well. See Hartnett, supra note 190, at 430–32 (explaining the importance of recess appointments to maintaining a functioning judiciary under the Judiciary Act of 1789 and summarizing the evidence that at least five early Supreme Court justices heard and decided cases under their recess appointments). 205. See John O. McGinnis & Steven Wasick, LawÊs Algorithm, 66 FLA. L. REV. 991, 1003 (2014) (explaining that early American case reporters were „far from comprehensive‰ and that „editors enjoyed wide editorial license to include or exclude cases‰).

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B. THE EXERCISE OF JUDICIAL POWER BY TEMPORARY FEDERAL

JUDGES IN THE POST-RATIFICATION PERIOD

JUD.

206. Judiciary Act of 1789, ch. 20, 1 Stat. 73. 207. See Livingston, Henry Brockholst, FED. CTR., https://www.fjc.gov/history/judges/Livingston-Henry-Brockholst [https://perma .cc/4J3P-T5EB] (received recess appointment from President Jefferson on November 10, 1806); Pennington, William Sanford, FED. JUD. CTR., https://www.fjc.gov/history/judges/pennington-william-sanford [https://perma .cc/W3EQ-Q9C9] (received recess appointment from James Madison on June 19, 1815); see also Biographical Directory of Article III Judges, 1789-present, supra note 18 for a complete list of recess-appointed Article III judges. 208. See Biographical Directory of Article III Judges, 1789-present, supra note 18. 209. See Record Group 21 - Records of District Courts of the United States, NATÊL https://www.archives.gov/findingaid/stat/discovery/21 [https://perma.cc/T4ES-NEHN]; see also Record Group, NATÊL ARCHIVES, https://www.archives.gov/research/data-model/record-group.html [https:// perma.cc/6KBL-2J7A] (defining the term „record group‰).

ARCHIVES,

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210. See Engrossed Minutes, February 1790–June 7, 1954, reprinted by NATÊL ARCHIVES: CATALOG, https://catalog.archives.gov/id/607809 [https:// perma.cc/5MML-A8DA] for the engrossed minutes of Supreme Court proceedings between 1790 and 1954. 211. See AmericaÊs Historical Newspapers & Periodicals, READEX, https://www.readex.com/products/americas-historical-newspapers-periodicals [https://perma.cc/VT6P-ZU4W]. 212. DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 71. 213. Letter from George Washington to Thomas Johnson (July 14, 1791), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 72. 214. Letter from Thomas Johnson to George Washington (July 30, 1791), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 73–74. 215. Engrossed Minutes of the Supreme Court 1790–1828 (Aug. 1–2, 1791) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol. A (NatÊl Archives), https:// catalog.archives.gov/id/178832278?objectPage=18 [https://perma.cc/GF8V -N32P].

02_MIN_110_5_text.indd 2455 02_MIN_110_5_text.indd 2455

216. Letter from Thomas Johnson to George Washington (Aug. 1, 1791), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 74. 217. DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 74. 218. Id. 219. Id. at 71. 220. See Engrossed Minutes of the Supreme Court 1790–1828 (Feb. 13, 1792) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol. A (NatÊl Archives), https://catalog.archives.gov/id/178832278?objectPage=23 [https://perma.cc/ 3YX6-WUUT]. 221. See Engrossed Minutes of the Supreme Court 1790–1828 (Aug. 6, 1792) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol. A (NatÊl Archives), https:// catalog.archives.gov/id/178832278?objectPage=24 [https://perma.cc/UG4K -4APH]; see also Appointment of Johnson, 2 U.S. (2 Dall.) 402, 402 (1792). 222. See Letter from George Washington to Thomas Johnson (Aug. 7, 1791), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 76 (assuring Johnson that he would „be wholly exempted from performing this tour of duty at that time‰). The Federal Judicial CenterÊs records show Johnson as being allotted circuit duties only in 1792. See

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Johnson, Thomas, FED. JUD. CTR., https://www.fjc.gov/history/judges/johnson -thomas [https://perma.cc/XQ3R-3LBG]. 223. Rutledge, John, FED. JUD. CTR., https://www.fjc.gov/history/ judges/rutledge-john [https://perma.cc/6HXQ-97ZD]. 224. Letter from George Washington to John Rutledge (July 1, 1795), in 18 THE PAPERS OF GEORGE WASHINGTON 278, 278 (Carol S. Ebel ed., 2015). 225. Id. 226. Engrossed Minutes of the Supreme Court 1790–1828 (Aug. 12, 1795) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol A (NatÊl Archives), https:// catalog.archives.gov/id/178832278?objectPage=62 [https://perma.cc/UC6Q -YQ2Z]. 227. Engrossed Minutes of the Supreme Court 1790–1828 (Aug. 8–11, 1795) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol A (NatÊl Archives), https:// catalog.archives.gov/id/178832278?objectPage=62 [https://perma.cc/UC6Q -YQ2Z].

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228. Talbot v. Janson, 3 U.S. (3 Dall.) 133, 169 (1795); United States v. Peters, 3 U.S. (3 Dall.) 121, 132 (1795). 229. See Kevin Arlyck, The Courts and Foreign Affairs at the Founding, 2017 B.Y.U. L. REV. 1, 45, 46, 62 n.294 (2017) (citing examples of privateering cases brought to the Supreme Court, with Talbot brought by Britain and Peters being brought by France). 230. See id. at 44 (explaining that Washington „sought to transform a vice into a virtue‰ by framing the executiveÊs inaction as „fidelity to the rule of law in foreign affairs‰ rather than as executive weakness). 231. See Letter from George Washington to John Rutledge, supra note 224, at 278 („[T]he Secretary will write to you by Post, and by a water conveyance also if there be any Vessel in this harbour which will sail for Charleston in a few days.‰). 232. Circuit Allotments: Southern Circuit, https://www.fjc.gov/history/courts/circuit-allotments-southern-circuit perma.cc/WC2H-GJVR]. 233. Letter from John Adams to Abigail Adams (Dec. 21, 1795), reprinted by MASS. HIST. SOCÊY, https://www.masshist.org/digitaladams/archive/doc?id=L17 951221jasecond [https://perma.cc/D4H9-5BQ9]. 234. U.S. Circuit Court Charleston, S.C. Minute Book 1790–1809, at 76 (Oct. 26, 1795) (on file with NatÊl Archives; National Archives Building, Atl. Ga.; U.S. District Court Records; Record Group 21; Minutes, Circuit and District Courts, District of South Carolina, 1789–1849), microformed on Microfilm M1181, Roll 1 (NatÊl Archives). 235. Id. at 76–92 (documenting Rutledge and BeeÊs decisions on cases and motions).

JUD. CTR., [https://

FED.

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236. See Christine Kexel Chabot, The FoundersÊ Purse, 110 VA. L. REV. 1027, 1081 (2024) („The Commission was comprised of the Secretary of the Treasury . . . Secretary of State . . . President of the Senate/Vice President . . . the Attorney General . . . and the Chief Justice . . . .‰). The Sinking Fund Act was passed in 1790 and grew in its appropriations powers until 1817, when it was simplified. Id. at 1083, 1086–87. 237. See id. at 1033–34 (likening the Sinking Fund Commission to the Consumer Financial Protection Bureau and the Federal Reserve); Christine Kexel Chabot, The Lost History of Delegation at the Founding, 56 GA. L. REV. 81, 128– 29 (2021) (explaining that the Fund would pay the U.S. debt by purchasing securities). 238. See S. JOURNAL, 4th Cong., 1st Sess. 201 (1795) (recording John AdamsÊ report to Congress on behalf of the commissioners of the sinking fund). 239. James E. Pfander, Judicial Compensation and the Definition of Judicial Power in the Early Republic, 107 MICH. L. REV. 1, 42 (2008). 240. Rutledge, John, supra note 223. 241. See generally George S. McCowan, Jr., Chief Justice John Rutledge and the Jay Treaty, 62 S.C. HIST. MAG., Jan. 1961, at 10, 14–21 (recounting Chief Justice RutledgeÊs excoriation of John JayÊs Amity Treaty, the subsequent opposition to Rutledge, and the SenateÊs rejection of Rutledge at his confirmation hearing). 242. Thomas Johnson was the first temporary federal judge and was confirmed. See DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 71.

02_MIN_110_5_text.indd 2459 02_MIN_110_5_text.indd 2459

243. Washington, Bushrod, FED. JUD. CTR., https://www.fjc.gov/history/ judges/washington-bushrod [https://perma.cc/58LX-U584]. 244. Id. 245. 3 REPORTS OF CASES RULED AND ADJUDGED IN THE SEVERAL COURTS OF THE UNITED STATES AND OF PENNSYLVANIA HELD AT THE SEAT OF THE FEDERAL GOVERNMENT 409 (A.J. Dallas ed., 1799) (reporting that after Justice Washington was appointed, the first case he heard was Dewhurst v. Coulthard, 3 U.S. (3 Dall.) 409 (1799 . 246. See Castellano, supra note 192, at 34 („Of the eleven recess appointments to the Supreme Court before Chief Justice Warren, only three (Chief Justice John Rutledge and Justices Levi Woodbury and Benjamin Curtis) assumed their duties on the Court before being confirmed by the Senate.‰ (footnotes omitted . 247. Washington, Bushrod, supra note 243. 248. DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 126; Letter from Bushrod Washington to George Washington (Oct. 19, 1798), reprinted by NATIONAL ARCHIVES: FOUNDERS ONLINE, https://founders.archives.gov/documents/Washington/0603-02-0078 [https://perma.cc/5NQM-Q9HB] („I am Just preparing to go upon the southern Circuit, & shall if possible leave this place tomorrow.‰). 249. Record of Oaths (Nov. 9, 1798), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 134. 250. Confirmation by Senate (Dec. 20, 1798), in DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 134.

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251. Livingston, Henry Brockholst, FED. JUD. CTR., https://www.fjc.gov/ history/judges/livingston-henry-brockholst [https://perma.cc/9M99-6VXK]. 252. Id. 253. See Engrossed Minutes of the Supreme Court 1790–1828 (Aug. 1795– Jan. 1796) (on file with NatÊl Archives; National Archives Building, Washington, DC; Records of the Supreme Court of the United States, 1772–2007, Record Group 267; Engrossed Minutes, February 1790–June 7, 1954), microformed on National Archives Microform Publication M215, Roll 1, Vol D (NatÊl Archives), https://catalog.archives.gov/id/178832278?objectPage=681 [https://perma.cc/ HXP8-WQPT] (proclaiming the court to be adjourned at the end of the August 1806 term and not hearing cases until January 8, 1807, where the Court had five associate Justices plus the chief Justice (Livingston not being among them . 254. Livingston, Henry Brockholst, supra note 251. 255. But see NLRB v. Noel Canning, , 579–80 (2014) (Scalia, J., concurring) (suggesting that use of the power has shifted with time from an early mechanism to resolve emergencies to an „ignoble‰ political one). 256. The Judiciary Act of 1789 was enacted on September 24, 1789. Judiciary Act of 1789, ch. 20, 1 Stat. 73. On the same day, George Washington submitted nominations for the Supreme Court and district court judges to the Senate. Letter from George Washington to the United States Senate (Sept. 24, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON, 75, 75–76 (Dorothy Twohig ed., 1993). Two days later, on the 26th of September, the Senate confirmed all of WashingtonÊs nominations. Id.

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257. See Letter from Thomas Pinckney to George Washington (Oct. 22, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 215 (expressing gratitude for the judicial appointment but declining the opportunity due to familial obligations). Pinckney was the governor of South Carolina and, two years after declining the judgeship, Washington appointed Pinckney to be the minister to Great Britain. Id. at 216. 258. Drayton, William, FED. JUD. CTR., https://www.fjc.gov/history/judges/ drayton-william [https://perma.cc/D74Y-J58M]. 259. Letter from George Washington to William Drayton (Nov. 18, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 305, 305–06. 260. See Admiralty Final Record, 1789–1800 (Jan. 22, 1790) (on file with NatÊl Archives; National Archives Building, Atl. Ga.; U.S. District Court Records; Record Group 21; Admiralty Final Record Books And Minutes For The U.S. District Court, District Of South Carolina, 1790-1857), microformed on Microfilm M1182, at 161–70 (NatÊl Archives) (recording William DraytonÊs „Special district court‰ in which he decided cases such as the „Eight Barrels of Sugar‰ case); see also Isaac Huger, Notice: Hall v. Six Barrels of Sugar, ST. GAZETTE S.C., Jan. 7, 1790 (reporting William DraytonÊs decision in the Eight Barrels of Sugar case and erroneously reporting six barrels, rather than eight). 261. Admiralty Final Record, 1789–1800, supra note 260, at 163. 262. See id. at 166, 168 (issuing a final decree upon motion from the attorney general; noting that „no person or persons appear[ed] to claim any of the Sugar or Coffee‰). 263. See id. at 170–78 (recording DraytonÊs proceedings on each day).

02_MIN_110_5_text.indd 2462 02_MIN_110_5_text.indd 2462

264. Judiciary Act of 1789, ch. 20, 1 Stat. 73. 265. See 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 105–06 n.3 (including a letter from Edmund Pendleton to George Washington, where Pendleton declines WashingtonÊs nomination because of poor health). 266. Letter from George Washington to Edmund Randolph (Nov. 30, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 348, 348–49. 267. See Henry S. Rorer, Cyrus Griffin: VirginiaÊs First Federal Judge, 21 WASH. & LEE L. REV. 201, 205 (1964) (noting that Griffin was one of three original judges on the Court of Appeals in Cases of Capture); Deirdre Mask & Paul MacMahon, The Revolutionary War Prize Cases and the Origins of Diversity Jurisdiction, 63 BUFF. L. REV. 477, 516–17 (2015) (naming Cyrus Griffin as one of the „serious lawyers [appointed] to the Court of Appeals in Cases of Capture‰). 268. See Mask & MacMahon, supra note 267, at 481 (referring to the Court of Appeals in Cases of Capture as „our first federal court‰). 269. Griffin, Cyrus, FED. JUD. CTR., https://www.fjc.gov/history/judges/ griffin-cyrus [https://perma.cc/NZY6-NVGA]. 270. Letter from George Washington to Edmund Randolph, supra note 266, at 348. 271. Id. 272. United States. Richmond, December 16, INDEP. GAZETTEER, Dec. 29, 1789, at 3.

02_MIN_110_5_text.indd 2463 02_MIN_110_5_text.indd 2463

273. Id. 274. See DOCUMENTARY HISTORY OF THE SUPREME COURT OF THE UNITED STATES, 1789–1800, supra note 17, at 71 (stating that President Washington nominated Johnson and the Senate confirmed him on September 26, 1789). 275. 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 345 n.6. Notably, Washington was initially skeptical of Paca. See Letter from George Washington to James McHenry (Nov. 30, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 342, 343 („[A]lthough [PacaÊs] sentiments have not been altogether in favor of the general Government·and a little adverse on the score of Paper Emissions &ca·I do not know but his appointment on some other accounts might be a proper thing. . . . I will thank you to give me more information relative to Mr Paca.‰). But the additional information helped, and Washington was convinced of PacaÊs „degree of respectability and legal dignity,‰ though Paca was still the third choice. 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 344–45 n.6 (quoting Letter from James McHenry to George Washington (Dec. 10, 1789 . 276. See Mask & MacMahon, supra note 267, at 517 (calling Paca a „serious lawyer‰). 277. 4 THE PAPERS OF GEORGE WASHINGTON, supra note 256, at 345 n.6. 278. See E-mail from Stephen Charla, Archivist, National Archives and Records Administration, to author (Dec. 23, 2025) (on file with author) („MarylandÊs U.S. District Court minutes begin in September 1790 and the U.S. Circuit Court minutes begin in May 1790, so there are no minutes of either court from the period December 1789 to February 1790.‰). The archivistÊs conclusion is confirmed by a search of contemporary newspapers, which reveal no announcements of activity by these courts during the relevant period. 279. Morris, Robert, FED. JUD. CTR., https://www.fjc.gov/history/judges/ morris-robert [https://perma.cc/BCW8-WHHE].

02_MIN_110_5_text.indd 2464 02_MIN_110_5_text.indd 2464

280. See Minutes of the U.S. District Court for the District of New Jersey, Trenton Term, Dec. 22, 1789–May 15, 19501911 (on file with NatÊl Archives; National Archives Building, Kansas City, Mo.; U.S. District Court Records; Record Group 21), microformed on NAID: 133862184, Reel 5. 281. Lewis, William, FED. JUD. CTR., https://www.fjc.gov/history/judges/ lewis-william [https://perma.cc/KST4-SGL7]. 282. Id. 283. Advertisement for Public Auction of the Brigantine Zeal, FED. GAZETTE, Aug. 5, 1791, at 1. 284. Reported Legal Proceedings, GEN. ADVERTISER, Aug. 5, 1791, at 3. 285. Hitchcock, Samuel, FED. JUD. CTR., https://www.fjc.gov/history/judges/ hitchcock-samuel [https://perma.cc/J5QC-TE8Z]. 286. Id. 287. See id. (noting that John Adams nominated Hitchcock to „a new seat authorized by 2 Stat. 89‰ but that a year and a half later, the court was abolished and Hitchcock returned to private practice); Turner, supra note 70, at 494 (explaining that the judges appointed under the Judiciary Act of 1801, 2 Stat. 89, were called „the midnight judges‰). 288. Windsor, SPOONERÊS VT. J. EXTRAORDINARY, Oct. 21, 1793, at 3 (announcing HitchcockÊs appointment). 289. Clay, Joseph, Jr., FED. JUD. CTR., https://www.fjc.gov/history/judges/ clay-joseph-jr [https://perma.cc/A9UZ-LMNF].

02_MIN_110_5_text.indd 2465 02_MIN_110_5_text.indd 2465

290. Index Books (Nov. 8, 1796) (on file with NatÊl Archives; National Archives Building, Atl. Ga.; U.S. District Court Records; Record Group 21; Index Books, 1789–1928, and Minutes and Bench Dockets, 1789–1870, for the U.S. District Court for the Southern District of Georgia, 1789–1928), microformed on Microfilm M1172 at 148 (NatÊl Archives). 291. Id. at 149–51. 292. See G. Woodruff, The PresidentÊs Order to the Marshal to Admonish Defendants to Appear for Trial, COLUMBIAN MUSEUM, Jan. 7, 1797, at 369 (ordering a hearing before Judge Joseph Clay in February 1797). 293. Bourne, Benjamin, FED. JUD. CTR., https://www.fjc.gov/history/judges/ bourne-benjamin [https://perma.cc/ER6Q-9ARA]. 294. See United States v. Ship Betsy (collecting statements addressed to Benjamin Bourne), microformed in Records of the District Courts, Record Group 21, Case Files for the District Court of Rhode Island, Case No. 00011 (NatÊl Archives at Boston, Mass.). 295. E.g., id. at 6. 296. See Special District Court at Baltimore, November Fifth, in Minutes, 1790–1985 (on file with NatÊl Archives; National Archives Building, Philadelphia, PA.; U.S. District Court Records; Record Group 21), Asset HC1-80531868, Box 1 [handwritten]. 297. See id. 298. Id. 299. See Minutes of the U.S. Circuit Court for the District of Maryland 1790– 1911 (on file with NatÊl Archives; National Archives Building, Philadelphia, PA.; U.S. District Court Records; Record Group 21), microformed on Microfilm M931, Roll 1.

02_MIN_110_5_text.indd 2466 02_MIN_110_5_text.indd 2466

300. See id. 301. See id. 302. Winchester, James, FED. JUD. CTR., https://www.fjc.gov/history/judges/ winchester-james [https://perma.cc/74ZN-2LJR]. 303. See Kilty, William, FED. JUD. CTR., https://www.fjc.gov/history/judges/ kilty-william [https://perma.cc/K3Z7-RY38]. 304. Id.; Ch. 4, 2 Stat. 89 (1801) (creating the Circuit Court of the District of Columbia). 305. See supra Part I.B (discussing Article IIIÊs good behavior requirement). 306. FED. GAZETTE & BALT. DAILY ADVERTISER, Mar. 25, 1801. 307. See, e.g., THE TIMES & D.C. DAILY ADVERTISER, Apr. 14, 1801 (mentioning a charge delivered by Chief Justice Kilty); FED. GAZETTE & BALT. DAILY ADVERTISER, June 24, 1801 (mentioning another charge delivered by Chief Justice Kilty); NATÊL INTELLIGENCER & WASH. ADVERTISER, Oct. 23, 1801 (mentioning a court proceeding involving Chief Justice Kilty); see also Kilty, William, supra note 303 (noting that Kilty was confirmed by the Senate in 1802). 308. Barnes, David Leonard, FED. JUD. CTR., https://www.fjc.gov/history/ judges/barnes-david-leonard [https://perma.cc/F9RS-4PJX]. 309. Id.; Advertisement, U.S. CHRON., July 9, 1801, at 1.

02_MIN_110_5_text.indd 2467 02_MIN_110_5_text.indd 2467

310. See Dominic Augustin Hall, U.S. DIST. CT.: E. DIST. OF LA., https://www.laed.uscourts.gov/court-history/judges/hall [https://perma.cc/S4A6 -KWHQ]; Potter, Henry, FED. JUD. CTR., https://www.fjc.gov/history/judges/ potter-henry [https://perma.cc/KV9M-2PLM]. 311. CITY-GAZETTE & DAILY ADVERTISER, Dec. 23, 1801. 312. Potter, Henry, supra note 310; Hall, Dominic Augustin, FED. JUD. CTR., https://www.fjc.gov/history/judges/hall-dominic-augustin [https://perma.cc/ LR95-HCZN]. 313. See Hall, Dominic Augustin, supra note 312. 314. Stephens, William, FED. JUD. CTR., https://www.fjc.gov/history/judges/ stephens-william [https://perma.cc/3QST-E8X7]. 315. Id. 316. Ch. 4, 2 Stat. 89 (1801). 317. AUGUSTA CHRON. & GAZETTE, Nov. 21, 1801 („The honorable William Stephens, Esq. is appointed Judge for the District of Georgia. We are credibly informed that Chief Justice Hall, and Justice Potter, intend holding the Circuit Court of the United States, in this City, in December next.‰). 318. Id. 319. Tallmadge, Matthias Burnett, FED. JUD. CTR., https://www.fjc.gov/ history/judges/tallmadge-matthias-burnett [https://perma.cc/CP9R-GHSS].

02_MIN_110_5_text.indd 2468 02_MIN_110_5_text.indd 2468

320. See U.S. District Court for the Southern District of New York, Civil and Criminal Minutes 1789–1853, Minutes 1802–1807 in Box #237, at 283–86 (on file with NatÊl Archives; National Archives Building, Kansas City, Mo.; U.S. District Court Records; Record Group 21). 321. See id.

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322. See Letter from Thomas Johnson to George Washington (July 30, 1791), supra note 214, at 73; Letter from Thomas Johnson to George Washington (Aug. 1, 1791), supra note 216, at 74. 323. See Stuart v. Laird, 5 U.S. (1 Cranch) 299, 303 (1803) (considering the validity of circuit riding). 324. See Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 123 (1819) (considering the exclusivity of CongressÊs bankruptcy power). 325. See, e.g., Baude, supra note 36, at 4 (identifying liquidation as „a specific way of looking at post-Founding practice to settle constitutional disputes‰).

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326. See, e.g., Stuart, 5 U.S. (1 Cranch) at 308 („The chief justice, having tried the cause in the court below, declined giving an opinion.‰); Talbot v. Janson, 3 U.S. (3 Dall.) 133, 168 (1795) (Wilson, J.) („As I decided this cause in the Circuit Court, it gives me pleasure to be relieved from the necessity of giving any opinion on the appeal, by the unanimity of sentiment that prevails among the judges.‰).

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A. IMPLICATIONS FOR RECESS APPOINTEES AND ARTICLE III

FORMALISM

327. See United States v. Allocco, 305 F.2d 704 (2d Cir. 1962). 328. See Warren, Earl, FED. JUD. CTR., https://www.fjc.gov/history/judges/ warren-earl [https://perma.cc/4Z8M-UYLB] (recess appointed by President Dwight D. Eisenhower on October 2, 1953). 329. See Salsburg v. Maryland, 346 U.S. 545, 546 (1954); IntÊl LongshoremenÊs & WarehousemenÊs Union, Loc. 37 v. Boyd, 347 U.S. 222, 222 (1954); Howell Chevrolet Co. v. NLRB, 346 U.S. 482, 482 (1953); Chi., Rock Island & Pac. R.R. Co. v. Stude, 346 U.S. 574, 575 (1954); Toolson v. N.Y. Yankees, Inc., 346 U.S. 356, 357 (1953). 330. See Brown v. Bd. of Educ., 347 U.S. 483, 483 (1954) (noting that Brown and the cases decided with it were reargued on „December 7, 8, and 9, 1953‰); Transcript of Oral Argument, Brown, 347 U.S. at 483 (No. 1), https://brown.oyez.org/transcripts [https://perma.cc/AP6Z-ZLAN] (reflecting that Warren presided and asked two substantive questions). 331. See Brown, 347 U.S. at 483; Transcript of Oral Argument, supra note 330 (reflecting that Warren presided and asked two substantive questions).

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332. See Richard H. Fallon, Jr., Selective Originalism and Judicial Role Morality, 102 TEX. L. REV. 221, 226–27 (2023) (noting, for example, that Justice Alito has applied stare decisis rather than an originalist interpretation of the Fourteenth Amendment). 333. Rosenblum, supra note 5, at 2154. 334. See, e.g., Stern v. Marshall, , 484 (2011) (explaining that the Founders chose life tenure in hopes that judges would make decisions without „an eye toward currying favor with Congress or the Executive‰); Sec. & Exch. CommÊn v. Jarkesy, 144 S. Ct. 2117, 2143–44 (2024) (Gorsuch, J., concurring) (explaining that lifetime tenure ensures that Congress and the Executive cannot exercise judicial power). 335. See, e.g., Roisman, supra note 23, at 181 („[T]he prevailing method of separation of powers formalism today consists of (1) a commitment to resolving separation of powers disputes using rules, rather than standards; (2) that are

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derived from the original public meaning of the Constitution.‰); Raban, supra note 23, at 368 (defining the „new formalism‰ as grounded in „textualism (in the statutory realm) and originalism (in the constitutional realm)‰); Lawson, supra note 23, at 859–60 („Formalism, at least in my hands, is an application of originalist textualism to questions of constitutional structure.‰). 336. Stern, 564 U.S. at 484 („By appointing judges to serve without term limits, and restricting the ability of the other branches to remove judges or diminish their salaries, the Framers sought to ensure that each judicial decision would be rendered, not with an eye toward currying favor with Congress or the Executive, but rather with the Â[c]lear heads . . . and honest heartsÊ deemed Âessential to good judges.ʉ (citing 1 WORKS OF JAMES WILSON 363 (James DeWitt Andrews ed., 1896 . 337. See, e.g., Alex Glashausser, The Extension Clause and the Supreme CourtÊs Jurisdictional Independence, 53 B.C. L. REV. 1225, 1236–38 (2012) (discussing the CourtÊs understanding of the „judicial power‰). 338. Hence, the majority opinionÊs anticipation of the inevitable objection: „Is there really a threat to the separation of powers where Congress has conferred the judicial power outside Article III only over certain counterclaims in bankruptcy?‰ Stern, 564 U.S. at 502.

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B. POTENTIAL RESOLUTIONS

339. Evans v. Stephens, , 942 (2005) (denying cert.). 340. Id. at 942–43 (Stevens, J., respecting denial of cert.). 341. NLRB v. Noel Canning, , 569 (2014) (Scalia, J., concurring in judgement). 342. GRAVES & HOWARD, supra note 25, at 96–97 (demonstrating „that recess-appointed judges did alter their voting pre-confirmation, based on their observed behavior afterward‰). 343. See infra Appendix. 344. See Haiyun Damon-Feng, Administrative Reliance, 73 DUKE L.J. 1743, 1749 (2024) („In todayÊs political climate . . . deep-seated partisanship pervades our legislative and judicial institutions.‰). 345. See, e.g., Bell, supra note 50, at 373–74 (explaining that Congress maintained pro forma sessions „precisely to prevent President Obama from making

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recess appointments‰ to the NLRB and CFPB); Ian Ostrander, Powering Down the Presidency: The Rise and Fall of Recess Appointments, 45 PRESIDENTIAL STUD. Q. 558, 558 (2015) (explaining that in 2007 the NLRB Board delegated its powers to a „three-member commission‰ to allow it to continue operating „without a true quorum‰); Jeff VanDam, The Kill Switch: The New Battle Over Presidential Recess Appointments, 107 NW. U. L. REV. 361, 397 (2012) (arguing that using pro forma sessions to block presidential recess appointments violates the Constitution). 346. See, e.g., Williams, supra note 46, at 67 (noting that revoking judgeships has „significant jurisprudential, political, and practical effects‰). 347. See, e.g., William J. Brennan, Jr., Tribute to the Honorable J. Skelly Wright, 98 YALE L.J. 207 (1988) (praising impact of Judge J. Skelly Wright in „shaping the development of the law of civil rights and liberties‰). WrightÊs initial appointment to the federal bench was a recess appointment. Wright, James Skelly, FED. JUD. CTR., https://www.fjc.gov/history/judges/wright-james-skelly [https://perma.cc/H2Y2-NVHB]. 348. N. Pipeline Constr. Co. v. Marathon Pipe Line Co., , 87–88 (1981). 349. Id. at 88.

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See Alexander Gouzoules, The Bankruptcy Judge and the Generalist

350. Rosenblum, supra note 5, at 2173 („Government operations in the early republic were flexible and pragmatic, without a clear line separating powers from each other and with a high tolerance for cross-branch engagement.‰). 351. Tradition, 51 B.Y.U. L. REV. 743, 778–83 (2026) (discussing the innovative design of the bankruptcy judge as a procedural specialist and a substantive generalist). 352. See Seymour, supra note 11, at 587 (observing that „[d]istrict court judges . . . routinely endorse bankruptcy court recommendations without edits,‰ raising the question of „whether the Article III cases really matter‰).

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The entitlement to an Article III adjudicator is „a personal right‰ and thus ordinarily „subject to waiver.‰ Article III also serves a structural purpose, „barring congressional attempts to transfer jurisdiction to non-Article III tribunals for the purpose of emasculating constitutional courts and thereby preventing the encroachment or aggrandizement of one branch at the expense of the other.‰ But allowing Article I adjudicators to decide claims submitted to them by consent does not offend the separation of powers so long as Article III courts retain supervisory authority over the process.354

353. Rosenblum, supra note 5, at 2155. 354. Wellness IntÊl Network, Ltd. v. Sharif, , 678 (2015) (quoting Commodity Futures Trading CommÊn v. Schor, 478 U.S. 833, 848, 850 (1986 (upholding Commodity Futures Trading Commission tribunal judgment against Article III challenge on the basis of waiver). 355. See id.

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356. In re Consent to Magistrate Judges at 1, Amended Gen. Ord. No. 05-17 (W.D. Wash. 2017). 357. Id. 358. Id. 359. See Washington v. Kijakazi, 72 F.4th 1029, 1033 (9th Cir. 2023) („We conclude that [defendant] knowingly and voluntarily consented to magistrate judge jurisdiction by failing to return the form that notified him of his rights and by thereafter proceeding with the litigation before the magistrate judge.‰). 360. See Sharif, 575 U.S. at 678. 361. See, e.g., F. Andrew Hessick, Consenting to Adjudication Outside the Article III Courts, 71 VAND. L. REV. 715, 731 (2018) (arguing that permitting parties to give consent to adjudication outside Article III courts has no constitutional basis).

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