White House spokesman Dan Pfeiffer criticized the "pro forma" sessions at the time and wrote in a White House blog that "gimmicks do not override the president's constitutional authority to make appointments to keep the government running."
Critics of the president's appointments reacted swiftly. Noel Canning, a soft drink bottling company, objected to an adverse ruling from the NLRB and sued calling the ruling was invalid because the appointments to the board were invalid. By the time the case reached the U.S. Court of Appeals for the District of Columbia, most people expected the court to rule on whether the president could invoke his recess appointment power during a "pro forma" sessions.
But the Court of Appeals issued a much broader ruling. "This is a case that started off as a pretty important case but has become a remarkable case," David A. Strauss of the Law School of the University of Chicago says.
The lower court held that recess appointments could only be made during "the" official recess between congressional sessions. The court defined "the" recess as the one that occurs between the end of one session of Congress and the beginning of the next. The court said recess appointments could not occur in so called "intra-sessions" of Congress, those that take place during the course of a session. Furthermore, the court ruled that appointments could only be made for vacancies that had arisen within the recess. The complication with the ruling is that presidents from both parties have long interpreted the recess clause to apply to both inter and intra-sessions recesses.
One abortion case before the court, McCullen v. Coakley, concerns so called "buffer zones" around abortion clinics. At issue is a Massachusetts law that makes it a crime to "enter or remain on a public way or sidewalk" within 35 feet of an entrance, exit or driveway of an abortion clinic. The law exempts clinic employees who are "acting within the scope of their employment."
Eleanor McCullen, a 76-year-old grandmother, is one of the challengers to the law. McCullen's lawyers argue that she would like to be in contact with the women entering the clinic in a "compassionate and nonconfrontational way," but the law restricts her speech. Her lawyers argue that the Massachusetts law does not pass constitutional muster, in part, because only the speech of abortion protestors is restricted. "It is neither neutral nor permissible for the State to prefer clinic agents' use of public sidewalks over petitioners' wish to enter the same area to extend peaceful offers of alternative help," the lawyers write.
Massachusetts Attorney General Martha Coakley defends the law, saying it was passed after patients complained of access problems at clinics. Coakley says the law is necessary to protect public safety and that clinic employees are forbidden from any advocacy inside the zone.
The Supreme Court upheld a Colorado statute in 2000 that allowed an 8-foot buffer zone. That case was decided by a different composition of justices, but Justice Kennedy wrote a stinging dissent. "You can think of this as an abortion case and a free speech case," says John P. Elwood, a lawyer at Vinson and Elkins who is a former clerk to Justice Anthony Kennedy.
"Kennedy will think of this as a free speech case and he tends to vote in favor of the First Amendment."
There is another abortion case - one that gets closer to the core of abortion rights - that has been granted by the court, but it has been delayed for procedural reasons. It is unclear whether the case will be heard this term.