STEVE INSKEEP, HOST:
The Supreme Court has issued rulings in two controversial cases. The court invalidated several appointments President Obama made while the Senate was in recess, or appeared to be, anyway. And the court also limited the power of a state to define buffer zones around abortion clinics. A lot to talk about here, let's dive right in with NPR legal affairs correspondent Nina Totenberg. Hi, Nina.
NINA TOTENBERG, BYLINE: Hi.
INSKEEP: OK, so these decisions appear to be, to you, anyway, compromises - why is that?
TOTENBERG: Well, if you expected, like, thunderbolts where you would know exactly what happened, sort of like yesterday with the cellphones, they didn't happen. I haven't seen this much slicing and dicing since I last watched the barefoot contest on television.
INSKEEP: (Laughing) OK, so we're talking about decisions then where it's a 9 to 0 vote in at least one case, but you're saying the way that they worded it, it's very complicated. What happened? So let's try to figure this out. First, these recess appointments - President Obama appointed these people and the courts said, no, you can't do that. What exactly did they mean by that?
TOTENBERG: So President Obama recess appointed three people to the National Labor Relations Board because he couldn't get them through, they were being blocked. And it was before the Democrats changed the rules in the Senate to allow just a simple majority to confirm people...
TOTENBERG: And got rid of the filibuster. So President Obama said this - you're preventing the recess appointments with shame sessions that last only 30 seconds to prevent there from being a real recess. And you say, OK, well, you're not in session and so we're going to challenge you about that - we don't consider that good. The Supreme Court said basically three things - the majority said three things. It said recess appointments are an important part of presidential power, they allow the government to keep working when the Senate is in recess. The founding fathers didn't even agree on what a recess is. And so we're going to take the modern interpretation. And the president can make recess appointments to fill positions, but only if the Senate is in recess - and this is sort of an invented rule - for 10 or more days.
INSKEEP: The Supreme Court said this?
TOTENBERG: The Supreme Court said this.
INSKEEP: And they just made up the rule. They...
TOTENBERG: They made up the rule. They made up the rule.
INSKEEP: They essentially said there's this complicated situation, we can't figure it out and so we're going to just draw our own line and say that's what it is.
TOTENBERG: They didn't say we can't figure it out. They said we're going to draw a line 'cause one has to be drawn. Now, in practice, at least if the two parties - if the president is of a different party than the Senate, that's likely not to make any difference, there's not going to be a recess. But in this case, the court said, as to whether or not these were real recesses because they had them for only 30 second sessions, the Senate makes its own rules and we have to say these were legitimate sessions because the Senate said they were legitimate sessions. And therefore, the NLRB appointments - nine of them said - therefore, the NLRB appointments are not good. But they totally disagreed on the reasoning. And four of the justices said recess appointments are something of a bygone era, they don't matter anymore. And the majority, lead by Justice Breyer - Stephen Breyer - said, yes, they do matter anymore, they are a huge and important part of presidential power and allow the president to ensure that the government keeps functioning.
INSKEEP: You know, you - this description you give, Nina Totenberg, reminds us that although we would like to think of the law as a cut and dry process and judicial ruling as being that way, that nine justices - that's a political process. These people were arguing and ended up with a ruling on just the bare minimum that they could actually agree on here.
TOTENBERG: Sort of. We ought to talk for a minute about the abortion case.
INSKEEP: Go ahead.
TOTENBERG: The - Chief Justice Roberts said that the 2000 decision that the court issued saying that there can be buffer zones to protect people going inside and out of a clinic, an abortion clinic, those are OK. But, he said, you can't have one that was as big as in this case - it was legislated in Massachusetts, it was 35 feet. And in some instance, it prevented protesters from giving literature to people, from talking to people who were going to be willing listeners. So it was basically too big a zone in some circumstances. And he said that Massachusetts - he said, I don't actually know if this is true - is the only state that has one this big, and that there are other ways to deal with problems of violence.
INSKEEP: So you can have a buffer zone or something, you just could not have exactly what was had in this case.
TOTENBERG: Yeah, this one was too broad.
INSKEEP: So two cases in which the whole question is how do you draw the line between competing interests.
TOTENBERG: You got it.
INSKEEP: Nina, thanks very much.
TOTENBERG: Thank you.
INSKEEP: That's NPR legal affairs correspondent Nina Totenberg.
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