How common is it for a concurring (really dissenting) Justice to quote questions posed by Justices in the majority during oral argument, to show that they agree with him. Justice Scalia did just that in Noel Canning:
The rise of intra-session adjournments has occurred in tandem with the development of modern forms of communication and transportation that mean the Senate “is always available” to consider nominations, even when its Members are temporarily dispersed for an intra-session break. Tr. of Oral Arg. 21 (GINSBURG, J.). The Recess Appointments Clause therefore is, or rather, should be, an anachronism—“essentially an historic relic, something whose original purpose has disappeared.” Id., at 19 (KAGAN, J.).
I did a quick search for (adv: “Tr. #of Oral Arg.” /4 “J.”) and I could not find any other Supreme Court opinion that did this. It is common to cite advocates, but another Justice’s question?
On another note, these quotations seem inappropriate. I mean, RBG and Kagan may have been asking questions of the SG rhetorically, and may not actually agree with what they said. Law professors try to grasp at straws, looking at the questions and trying to figure which way a Justice is leaning. But isn’t that a foolhardy task (won’t stop me anyway!)? Also, isn’t one of the reasons for keeping cameras out of the court room to prevent the media from taking isolated quotations out of context, and using them to impute meaning to what a Justice actually thinks. Isn’t this *exactly* what Scalia did here?
Here is Justice Kagan’s lengthy question to SG on p. 19.
JUSTICE KAGAN: General, would you agree that this clause now is not mostly used to deal with emergencies arising from congressional absence? That most modern Presidents and I say this sort of going going back to President Reagan, Presidents of both parties, essentially, have used this clause as a way to deal not with congressional absence, but with congressional intransigence, with a Congress that simply does not want to approve appointments that the President 1thinks ought to be approved? You know, absence in this day and age this is not the horse and buggy era anymore. There’s no real there’s no such thing, truly, as congressional absence anymore. And that makes me wonder whether we’re dealing here with what’s essentially an historic relic, something whose original purpose has disappeared and has assumed a new purpose that nobody ever intended it to have.
The colloquy continues with the SG, and Kagan:
GENERAL VERRILLI: Well, two answers. I don’t think its original purpose has disappeared. I mean, the NLRB was going to go dark. It was going to lose its quorum.
JUSTICE KAGAN: Yes, as a result of congressional refusal, not as a result of congressional action.
Here is RBG’s comment on p. 21.
The Senate I think, to be candid, the Senate is always available. They can be called back on very short notice. So what is it that’s the constitutional flaw here? It isn’t it isn’t that the Senate isn’t available. The Senate is available. It can easily be convened.
Curious. I can’t imagine the Justices Ginsburg and Kagan appreciated that.
Update: Justice Scalia, during his handdown, mentioned Ginsburg and Kagan’s agreement on this point:
He notes that even Justices Ruth Bader Ginsburg and Elena Kagan, who are in the majority today, “pointed out at oral argument” that the Senate is effectively always available on short notice thanks to modern communications and transportation.