In his opinion in Noel Canning, Justice Scalia repeatedly cited concurring opinions from Justice Kennedy–who did NOT join Scalia’s opinion.

Indeed, “[s]o convinced were the Framers that liberty of the person inheres in structure that at first they did not consider a Bill of Rights necessary.” Clinton v. City of New York, 524 U. S. 417, 450 (1998) (KENNEDY, J., concur­ ring).

This Court does not defer to the other branches’ resolution of such controversies; as JUSTICE KENNEDY has previously written, our role is in no way “lessened” because it might be said that “the two political branches are adjusting their own powers between themselves.” Clinton, supra, at 449 (concurring opinion).

Rather, polic­ ing the “enduring structure” of constitutional government when the political branches fail to do so is “one of the most vital functions of this Court.” Public Citizen v. Depart­ ment of Justice, 491 U. S. 440, 468 (1989) (KENNEDY, J., concurring in judgment).

Like­ wise, when the charge is made that a practice “enhances the President’s powers beyond” what the Constitution permits, “[i]t is no answer . . . to say that Congress sur­ rendered its authority by its own hand.” Clinton, 524 U. S., at 451 (KENNEDY, J., concurring).

“The structural interests protected by the Appointments Clause are not those of any one branch of Government but of the entire Republic,” Freytag, 501 U. S., at 880, and the Senate could not give away those protections even if it wanted to. See Chadha, 462 U. S., at 957–958; Clinton, 524 U. S., at 451–452 (KENNEDY, J., concurring).

Was he rubbing it in Kennedy’s face that he should have joined him? Or trying to flip him? I’m not quite sure.