If you didn’t pay close attention in law school, you would think that Justice Jackson wrote the majority opinion in Youngstown Sheet & Tube v. Sawyer. He didn’t. Black did. Yet, in virtually every separation of powers case, Jackson’s three tiers are relied upon. Recent Supreme Court nominees have also cited Jackson as the rule of law, as I noted in this article.
Yet, in Noel Canning both Breyer and Scalia cite to Frankfurter.
Justice Breyer cited and quoted from Frankfurter’s opinion to highlight the importance of practice in resolving separation of powers disputes.
That principle is neither new nor controversial. As James Madison wrote, it “was foreseen at the birth of the Constitution, that difficulties and differences of opinion might occasionally arise in expounding terms & phrases necessarily used in such a charter . . . and that it might require a regular course of practice to liquidate & settle the meaning of some of them.” Letter to Spencer Roane (Sept. 2, 1819), in 8 Writings of James Madison 450 (G. Hunt ed. 1908). And our cases have continually confirmed Madison’s view. E.g., Mistretta v. United States, 488 U. S. 361, 401 (1989); Dames & Moore v. Regan, 453 U. S. 654, 686 (1981); Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610–611 (1952) (Frankfurter, J., concurring); The Pocket Veto Case, supra, at 689–690; Ex parte Gross- man, 267 U. S. 87, 118–119 (1925); United States v. Mid- west Oil Co., 236 U. S. 459, 472–474 (1915); McPherson v. Blacker, 146 U. S. 1, 27 (1892); McCulloch, supra; Stuart v. Laird, 1 Cranch 299 (1803).
These precedents show that this Court has treated practice as an important interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after the founding era. See Mistretta, supra, 400–401 (“While these [practices] spawned spirited discussion and frequent criticism, . . . ‘traditional ways of conducting government . . . give mean ing’ to the Constitution” (quoting Youngstown, supra, at 610) (Frankfurter, J., concurring)); Regan, supra, at 684 (“[E]ven if the pre-1952 [practice] should be disregarded, congressional acquiescence in [a practice] since that time supports the President’s power to act here”); The Pocket Veto Case, supra, at 689–690 (postfounding practice is entitled to “great weight”); Grossman, supra, at 118–119 (postfounding practice “strongly sustains” a “construction” of the Constitution).
And again for the same quotation to discuss the importance of practice:
The Senate as a body has not countered this practice for nearly three quarters of a century, perhaps longer. See A. Amar, The Unwritten Constitution 576–577, n. 16 (2012) (for nearly 200 years “the overwhelming mass of actual practice” supports the President’s interpretation); Mistretta v. United States, 488 U. S. 361, 401 (1989) (a “200–year tradition” can “ ‘give meaning’ to the Constitution” (quoting Youngstown, 343 U. S., at 610 (Frankfurter, J., con- curring))). The tradition is long enough to entitle the practice “to great regard in determining the true construc- tion” of the constitutional provision. The Pocket Veto Case, 279 U. S., at 690. And we are reluctant to upset this traditional practice where doing so would seriously shrink the authority that Presidents have believed existed and have exercised for so long. In light of some linguistic ambiguity, the basic purpose of the Clause, and the historical practice we have de- scribed, we conclude that the phrase “all vacancies” in- cludes vacancies that come into existence while the Senate is in session.
Justice Scalia also cites Youngstown for Frankfurter’s opinion, but then explains why practice is not dispositive.
Of course, where a governmental practice has been open, widespread, and unchallenged since the early days of the Republic, the practice should guide our interpreta tion of an ambiguous constitutional provision. See, e.g., Alden v. Maine, 527 U. S. 706, 743–744 (1999); Bowsher, supra, at 723–724; Myers v. United States, 272 U. S. 52, 174–175 (1926); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U. S. 579, 610 (1952) (Frankfurter, J., concur ring) (arguing that “a systematic, unbroken, executive practice, long pursued to the knowledge of the Congress and never before questioned” should inform interpretation of the “Executive Power” vested in the President); Rutan v. Republican Party of Ill., 497 U. S. 62, 95, and n. 1 (1990) (SCALIA, J., dissenting). But “‘[p]ast practice does not, by itself, create power.’ ” Medellín v. Texas, 552 U. S. 491, 532 (2008) (quoting Dames & Moore v. Regan, 453 U. S. 654, 686 (1981)). That is a necessary corollary of the principle that the political branches cannot by agreement alter the constitutional structure. Plainly, then, a self aggrandizing practice adopted by one branch well after the founding, often challenged, and never before blessed by this Court—in other words, the sort of practice on which the majority relies in this case—does not relieve us of our duty to interpret the Constitution in light of its text, struc ture, and original understanding.
Oh well. Everyone now and then Frankfurter beat Jackson.