Who Wrote Synar? A Judge Who Types and Why It’s Important
In Synar v. United States, a per curiam three-judge district court held that the Gramm-Rudman-Hollings Act violated the separation of powers because the statute had given the Comptroller General executive powers and Congress previously held the qualified power to remove the Comptroller for cause. Chief Justice Burger’s majority opinion in the direct appeal, styled as Bowsher v. Synar, very substantially relied on the district court’s formal analysis — citing and quoting from it several times — that the congressional removal power made the Comptroller General “here-and-now subservient” to Congress.
Academics and commentators (including Anthony Lewis) either speculated or assumed that of the three judges on the panel — Oliver Gasch, Norma Holloway Johnson, and then-D.C. Circuit Judge Antonin Scalia — Scalia most likely penned the per curiam opinion. Amy Spare, Villanova Faculty Services Librarian, recently unearthed for me an unappreciated oral history of the late honorable Oliver Gasch that ends the speculation.
According to Judge Gasch, “[t]he Burger [Bowsher v. Synar] opinion adopted the same line as the decision that Justice (sic) Scalia had advocated when the case was before us….Synar was probably the most important case from the standpoint of the nation’s welfare that I was confronted with and I shall always remember it.” Gasch elaborated on Scalia’s drafting influence. Apparently, it was Scalia’s ability to type and word process that gave him control of the pen. “I shall always remember going up to confer with Nino Scalia after we heard argument — Norma Johnson was again involved in some criminal case — and here he was in front of his computer banging out things he wanted to say and erasing lines and restoring some lines with some changes. It was the first time I had ever seen a judge work at a computer. I suppose that was the detail that impressed me. But I understand that many do that. I wish I had that facility but I don’t.” With Gasch unable to type and with Johnson absent and preoccupied with a criminal trial, Scalia penned Synar. The Court’s heavy reliance on the Scalia opinion below means that the substance of its analysis can be fairly added to the Scalia separation-of-powers canon.
But the addition of Bowsher creates a curious tension with other Scalia separation-of-powers cases. For example, in Bowsher, the Court concluded that an officer removable only for malfeasance, neglect of duty, and inefficiency was “here-and-now subservient” to the removing officer. That is hard to square with Scalia’s position in Morrison v. Olson that the independent counsel, likewise removable only by the Attorney General for cause, was not an inferior officer because she was not subordinate (read “here-and-now subservient”) to the AG. Indeed, Scalia’s dissent quipped that good cause removal is “somewhat like referring to shackles as an effective means of locomotion.” I’m inclined to agree with this latter view, but that means only that I am disinclined to agree with his view in Synar. The two opinions appear to be at odds with each other.
Of course, Morrison involved intrabranch removal authority whereas Bowsher involved cross-branch removal authority. But it remains that a qualified power to remove amounts to subordination (and thereby control) in one context but not in the other.
Now a charitable account to reconcile the apparent inconsistency is possible, i.e. that the level of control that is constitutionally inadequate in one context — because impairing the unitary executive’s constitutional duty to take care that the laws be faithfully executed — is constitutionally impermissible in the other — because allowing a minute breach in the wall of separation between executive and legislative power not otherwise provided for by the Constitution. That account has yet to be offered. The Free Enterprise Fund v. PCAOB case might provide such an occasion. Justice Scalia might want to explain why, per Bowsher, the PCAOB members are not “here-and-now subservient” to the SEC commissioners and they, in turn, not “here-and-now subservient” to the President.