Abstract
Roughly three hundred Article III judges have decided cases without life tenure, serving under short-term commissions issued through the Recess Appointments Clause. And yet the Supreme Court’s jurisprudence on non-Article III adjudication holds that the Constitution strictly forbids judges without life tenure from exercising the judicial power of the United States.
This Article explores the tension between the nation’s long history of temporary federal judges commissioned through the President’s recess appointment power and the Court’s formalist approach to adjudication by bankruptcy judges, administrative agencies, and other tribunals without lifetime appointments. It uncovers unexamined evidence that early American presidents and judges embraced a pragmatic flexibility, contradicting prevailing narratives about Article III. Indeed, contrary to claims that have appeared in the literature on recess appointments, a majority of early temporary federal judges exercised judicial power before being confirmed by the Senate.
This Article argues that the modern Court’s jurisprudence on non-Article III adjudication lacks a legitimizing foundation in original understanding. In the absence of that foundation, it finds little justification for the arbitrary formalism of Stern v. Marshall and associated cases. This Article also considers potential resolutions—both formalist and functionalist—to the tension between the Court’s jurisprudence and the problem of judicial recess appointments.
Volume
110
Issue
5
Page
2417
Year
2026
Recommended Citation
Alexander Gouzoules,
Article III and the Recess-Appointed Judge,
110
Minn. L. Rev.
2417
(2026).
Available at:
https://scholarship.law.umn.edu/minnlrev/vol110/iss5/6
Rights
http://rightsstatements.org/vocab/InC-EDU/1.0/
Publication Abbreviation
Minn. L. Rev.
