Article II, section 2 of the U.S. Constitution provided the president with the “Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” While many presidents have made recess appointments to the federal courts, such appointments became controversial in the mid-twentieth century, leading to a 1960 Senate resolution expressing disfavor of the practice. Opponents of judicial recess appointments asserted that judges serving temporarily would lack the judicial independence created by the tenure and salary protections of Article III and may feel beholden to the president and the Senate in hopes of being nominated and confirmed to a permanent position. U.S. v. Allocco was the first of three court challenges to the constitutionality of judicial recess appointments. The U.S. Court of Appeals for the Second Circuit ruled that the appointment in question was constitutional, and the Supreme Court declined to hear the case. The Ninth Circuit ruled the same way in a 1983 case, U.S. v. Woodley, as did the Eleventh Circuit in a 2004 case, Evans v. Stephens, neither of which was reviewed by the Supreme Court. Nevertheless, such appointments have become rare, with only four since 1964 and none since 2004.

Learn more about this case