The U.S. Supreme Court has agreed to take on a new case involving affirmative action.

Vote now: March Madness - Senatorial edition

The court agreed on Monday to consider a 2006 Michigan ballot initiative that amended the state constitution to prohibit "discrimination, or the granting of preferential treatment, in public education, government contracting, and public employment based on race, sex, ethnicity, or national origin."

The case will be heard in the fall.

The Michigan initiative itself was prompted by reaction to the landmark 2003 Supreme Court decisions upholding elements of affirmative action in the University of Michigan's admissions policies, which had come under legal challenge.

It's something of a surprise that the court agreed to hear this latest case, because it has yet to rule on an affirmation action case argued in October, which challenges the admissions system used at the University of Texas.

If Wednesday’s argument before the Supreme Court is any indication, a majority of the justices seemed inclined to strike down or curtail key sections of the 1965 Voting Rights Act.  Even if the court does move in that direction, election officials in some states will have more leeway to change some procedures, but voters in 2014 won’t suddenly wake up in 1964.   

Hearing a challenge brought by Shelby County, Ala., several justices voiced skepticism about the formula the law uses to decide which states and other jurisdictions are required to get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures that they seek to make.

In 2006 Congress reauthorized Section 5 of the law for another 25 years. The current formula uses election data from 1972 and earlier to determine which places section 5 applies to. Critics of the law say the formula is archaic and ought to be scrapped.

Currently nine states, mostly in the South, as well as 54 counties in New York, California, Florida, North Carolina and South Dakota and 12 townships in Michigan and New Hampshire, are covered by section 5.

What effect would a ruling which struck down or curbed section 5 have on elections in the United States?

Would parts of the country now covered by section 5 revert to the days of poll taxes, literacy tests, murders of voter registration workers, racial gerrymandering of districts, and other devices to negate the power of African-American, Latino and other minority voters?

The short answer is no, and that’s because a separate section of the Voting Rights Act, section 2 – which is a permanent part of the statute and need not be periodically renewed, as section 5 must be – bans voting procedures that discriminate on the basis of race, color, or membership in one of the language minority groups identified by the law, which includes not only Spanish, but Chinese, Vietnamese, Korean and several Native American and Alaska Native language groups.

In recent years, the Justice Department, under both Republican and Democratic presidential administrations, has brought section 2 voting discrimination cases against jurisdictions in Massachusetts, Montana, Illinois, California, South Carolina, and several other states.

For example, in 2009 the Justice Department took action against Salem County, New Jersey and the borough of Penns Grove, N.J. for allegedly discriminating against Puerto Rican voters.

The Department charged that local election officials had never translated the ballot into Spanish in any election held in Penns Grove, and thus “numerous voters of Puerto Rican descent who cannot understand the ballot in English have been unable to fully exercise their voting rights.”

Chip Somodevilla / Getty Images

With images of murdered Mississippi civil rights worker Medgar Evers, demonstrators rally in front of the U.S. Supreme Court February 27, 2013 in Washington, DC.

These kinds of enforcement actions will continue under section 2 no matter what the high court decides on section 5.

But the Solicitor General Donald Verrilli argued Wednesday that getting rid of section 5 – and its requirement that covered jurisdictions get pre-approval of their voting procedures – will make it more costly and time consuming for voters to challenge allegedly discriminatory practices. He said section 5 has a deterrent effect – blocking discriminatory practices before they’re ever implemented.

He said polling place changes are the most frequent type of election procedure submitted to the Justice Department under Section 5. “Changes in the polling places at the last minute before an election can be a source of great mischief,” he told the justices. 

He contended that “there is no way in the world you could use Section 2 to effectively police that kind of mischief.” Given the cost of litigation, he said, “The cost-benefit ratio is… going to tilt strongly against bringing these suits.”

Michael Pitts, an expert on the Voting Rights Act who is a professor at Indiana University School of Law and who worked on voting rights cases when he served as a trial attorney in the Civil Rights Division of the Justice Department, said, “There is certainly a possibility of more last-minute mischief with polling places if Section 5 were struck down.”

He said Section 5 enforcement actions “are rather simple. To attempt to get the same results using other provisions of the Voting Rights Act, such as Section 2, will be much harder.”

Responding to Justice Anthony Kennedy’s suggestion during Wednesday’s argument that some Justice Department attorneys who now are working on section 5 could shifted to section 2 enforcement, Pitts said, “The problem with Section 2 lawsuits is that at the very least, DOJ has to find out about the problem, then they have to conduct an extensive investigation before filing a lawsuit, and then they have to spend lots of time and resources to win the case.  Section 2 cases are not easy to win.”

University of Georgia political science professor Charles Bullock, an expert on the Voting Rights Act and Southern politics, said elimination of section 5 would “probably not” make a difference in voter registration or voting in places that are now covered by section 5.

He said in section 5 covered jurisdictions, black registration and turnout “is pretty much at the same level” as registration and turnout among white voters. He added, “Hispanic registration and participation rates are lower but that’s true whether you’re looking at section 5 states or looking at states which are not subject to section 5.”

Bullock said that when it comes to drawing new district line for state legislatures and for House seats that due to section 2, “there would still very much be a protection in place against actions which were found to be discriminatory even if section 5 were to be struck down.”

Bullock said one major change that came about as a result of section 2 was the elimination of at-large districts for school boards, county councils, etc. and the move to single-member districts. At-large districts had been used to dilute the power of minority voters.

If the court eliminates section 5, “Would they (local officials) go back to at-large elections?” He thinks not, because “politicians tend to like the system under which they have succeeded, and they think there’s less uncertainty in a system which they’ve already worked successfully. County council or school board members elected under a single-member district system would be reluctant to go back to at-large elections even if that was what was traditionally done until, say 20, years ago.”

Bullock said if section 5 is struck down he does expect some of the now-covered states would move to enact voter identification laws which the Justice Department has so far blocked from enacting.

One unknown is how Congress would react if the high court does strike down section 5. Would it devise an updated formula, perhaps based on 2012 data, for that tried to target jurisdictions with large disparities of minority and white voter turnout? Would it use some other metric? It’s too soon to know, but it’s worth recalling that in 2006 Congress chose to avoid the difficulty of writing a new coverage formula – one reason the Shelby County case reached the high court.

This story was originally published on Thu Feb 28, 2013 1:35 PM EST

Central parts of an election law dating back to the civil rights struggles of the 1960s, the Voting Rights Act, appeared to be in jeopardy Wednesday after the Supreme Court heard oral arguments in a challenge to them.

NBC’s Pete Williams reported after the oral argument that key provisions of the 1965 law “are in big trouble. The question is how far will the Supreme Court go” in striking down parts of the law?

The justices were weighing an appeal from Shelby County, Ala., asking the court to find that Congress exceeded its power when it renewed the two key sections of the law in 2006. A decision is expected before the court ends its current term this coming June or July.

Under Section 5 of the law, nine states, mostly in the South, but also including Alaska and Arizona, as well as dozens of counties, townships, cities, and elected boards in other states, must get permission, or “preclearance,” from the Justice Department or a federal court in Washington for any change in voting procedures, no matter how small, that they seek to make.

The formula used to determine which states and other jurisdictions are covered by the preclearance requirement is set forth in section 4 of the law.

“It’s pretty safe to say that there at least five votes to strike down” either section 4 or section 5 of the Voting Rights Act, “either the coverage formula or preclearance totally,” Williams reported.

Williams added what seemed to concern a majority of the justices was “the fact that the law is too backward looking.”

Shelby County’s lawyer Bert Rein argued that Section 5 of the Voting Rights Act – which Congress renewed for another 25 years in 2006 – is unconstitutional because the formula used to determine which states are covered is outdated – based on voter turnout and registration data from 1972.

The blatant racial intimidation and discrimination in voting procedures that prevailed in states such as Alabama when the law was written in 1965 and renewed in 1970, 1975, and 1982, no longer exist, the county says.

Overshadowing Wednesday’s argument was the Supreme Court’s decision in a 2009 Texas case, Northwest Austin Municipal Utility District Number One vs. Holder. In that decision, the court expressed doubts about the continued need for Section 5, noting that “voter turnout and registration rates now approach parity” between whites and blacks in the states covered by section 5.

Evan Vucci / AP

House Minority Leader Nancy Pelosi of Calif.,speaks during a rally outside the Supreme Court in Washington, Wednesday, Feb. 27, 2013, before arguments in the Shelby County, Ala., v. Holder voting rights case. The justices are hearing arguments in a challenge to the part of the Voting Rights Act that forces places with a history of discrimination, mainly in the Deep South, to get approval before they make any change in the way elections are held. (AP Photo/Evan Vucci)

Solicitor General Donald Verrilli said the justices should defer to the judgment that Congress made in 2006 that the coverage formula was “rational and effective.” To that Justice Anthony Kennedy replied, “Well, the (1947) Marshall Plan was very good, too, the (1862) Morrill Act, the (1787) Northwest Ordinance, but times change.”

Kennedy suggested that the law had the effect of denying some states of their right to self-government -- in effect putting them “under the trusteeship of the United States Government.”

Related: Landmark civil rights law faces critical Supreme Court test

Addressing the question of why Congress had extended Section 5 in 2006 with no opposition at all in the Senate, Justice Antonin Scalia said it was “very likely attributable, to a phenomenon that is called perpetuation of racial entitlement. It's been written about. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes.”

He said for most members of Congress there’s little to be gained by voting against continuation of the key sections of the law. “I am fairly confident it will be reenacted in perpetuity unless a court can say it does not comport with the Constitution.”

But the liberal justices were quick to defend the sections of the law which Shelby County is challenging.

The court’s newest member, Justice Elena Kagan, appointed by President Barack Obama in 2010, said Alabama still deserved to be singled out for coverage under section 5.

She said section 5 “seems to work pretty well” in targeting the places where there are the most successful lawsuits under a separate section of the Voting Rights Act, section 2.

That part of the law, which isn’t being challenged in the Shelby County case, bans all voting procedures that discriminate on the basis of race, color, or membership in a language minority group. Unlike Sections 4 and 5 of the law, Section 2 covers all 50 states.

“If Congress were to write a formula that looked to the number of successful Section 2 suits per million residents, Alabama would be the number one state on the list,” Kagan told Rein.

Kagan said that “under any formula that Congress could devise” Alabama would still be a targeted state.

Another liberal justice who defended section 5, Justice Stephen Breyer compared racially discriminatory voting procedures to a disease. “It's an old disease, it's gotten a lot better, a lot better, but it's still there,” he said. “So if you had a remedy that really helped it work, but it (discrimination) wasn't totally over, wouldn't you keep that remedy?”

But Rein argued that the high court ought to “remove the stigma” of preclearance from the states “and the unequal application based on data that has no better history than 1972.”

Justice Samuel Alito suggested to Verrilli that “maybe the whole country should be covered” by section 5 or “maybe certain parts of the country should be covered based on a formula that is grounded in up-to-date statistics.”

When Verrilli defended the section 5 of the law, Chief Justice John Roberts asked him, “Do you know which state has the worst ratio of white voter turnout to African American voter turnout?”

Verrilli said he did not, to which Roberts replied: “Massachusetts. Do you know what has the best, where African American turnout actually exceeds white turnout? Mississippi.”

Roberts then asked Verrilli which state has the greatest disparity in registration between whites and African Americans, and again Verrilli did not know.

Again Roberts answered Massachusetts. He added that in Mississippi, “the African American registration rate is higher than the white registration rate.”

Verrilli argued Wednesday that “changes in the polling places at the last minute before an election can be a source of great mischief. Closing polling places, moving them to inconvenient locations, et cetera.” He explained that Section 5 requires “those kinds of changes to be pre-cleared and on a 60-day calendar which effectively prevents that kind of mischief. And there is no way in the world you could use Section 2 to effectively police that kind of mischief.”

He argued in the Justice Department brief that Section 2 isn’t an adequate barrier against discrimination in voting partly because it places the burden of proof on plaintiffs who challenge allegedly discriminatory procedures, while Section 5 places the burden of proof on the states or counties to show that their procedures aren’t discriminatory.

This story was originally published on Wed Feb 27, 2013 12:12 PM EST

Chip Somodevilla / Getty Images, file

U.S. Supreme Court members (first row L-R) Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John Roberts, Associate Justice Anthony Kennedy, Associate Justice Ruth Bader Ginsburg, (back row L-R) Associate Justice Sonia Sotomayor, Associate Justice Stephen Breyer, Associate Justice Samuel Alito and Associate Justice Elena Kagan.

The U.S. Supreme Court this week will consider whether a landmark civil rights law, the Voting Rights Act, remains constitutionally valid, given the growth in the political power of minority voters and candidates.

Civil rights groups fear the court's conservatives are prepared to gut what the ACLU calls "the most important piece of civil rights legislation Congress has ever enacted."

The justices will hear oral arguments in the case Wednesday and rule sometime before the current court term ends in late June.

Passed by Congress in 1965 and renewed four times since then, most recently in 2006, a key provision of the law requires states with a history of discrimination at the polls to get federal permission before making any changes to their election procedures — from congressional redistricting to changing the locations of polling places.

The law was at the core of last year's successful efforts to block strict voter photo ID laws in Texas and South Carolina and to prevent Texas from redrawing its legislative and congressional boundaries in a manner that challengers claimed would have discriminated against minority voters.

"The last election vividly showed that voter suppression and voting discrimination are not just problems of the past. They continue to undermine our democratic process," says the ACLU's Steve Shapiro.

The challenge to the law comes from Shelby County, Alabama, a mostly white suburb south of Birmingham.  It argues that the pre-clearance requirement — which covers nine entire states and 66 counties or townships in seven others — is unconstitutional.

The areas covered by the law, it says, include some localities that have made substantial reforms but leave out other parts of the country that have failed to root out discrimination at the polls.

"Florida has been forced into pre-clearance litigation to prove that reducing early voting from 14 days to 8 is not discriminatory, when states such as Connecticut, Rhode Island, and Pennsylvania have no early voting at all," says Bert Rein of Washington, DC, the lawyer for the county.

While the history of blatant discrimination at the polls justified renewing the law in the past, Shelby County says, Congress failed to marshal enough evidence in 2006 to justify extending it for another 25 years.  "At most, the 2006 legislative record shows scattered and limited interference with voting rights, a level plainly insufficient" to sustain the pre-clearance requirement, Rein says.

Since 1990, adds Alabama’s Attorney General, Luther Strange, African Americans in the state have registered and voted in larger percentages than in states outside the South.

“African Americans hold seats in the legislature at percentages that are roughly commensurate with Alabama’s 26 percent African-American population,” Strange says.

But the NAACP Legal Defense and Education Fund says the current map is a close enough fit to cover the areas of greatest concern.  "Congress is not a surgeon with a scalpel when it acts to legislate across the fivty states, but it can reasonably attack discrimination where it finds it," the group says.

If the law were struck down, civil rights groups fear the areas covered by the law would revert to their old habits.

Warns the Leadership Conference on Civil and Human rights, “There is a significant risk of backsliding and a likelihood that millions of minority voters will face new barriers to the exercise of their most fundamental human right.”

President Obama expressed a similar sentiment in a radio interview last week. If covered jurisdictions no longer had to defend their electoral changes in advance, Obama said, civil rights groups would be forced to file lawsuits after voting changes were already in place.

“There are some parts of the country where obviously folks have been trying to make it harder for people to vote. So generally speaking, you’d see less protection before an election with respect to voting rights,” Mr. Obama said.

The Justice Department, which is defending the law before the Supreme Court, argues that the coverage formula is flexible, allowing local governments to bail out of the pre-clearance requirement if they can demonstrate they have not discriminated against minority voters for at least ten years.

During the past three decades, 38 bailouts have been granted, freeing 196 local jurisdictions of the preclearance requirement, the Justice Department says.  They include the first ever granted from parts of Alabama, Georgia, Texas, and Virginia, four of the states that are otherwise covered by the law.

Four years ago, the Supreme Court strongly suggested that several justices had doubts about its constitutionality, given recent electoral reforms. "Things have changed in the South," the court said in 2009.  "Blatantly discriminatory evasions of federal decrees are rare."

The court then went on to reject a constitutional challenge to the pre-clearance requirement, but it strongly suggested Congress should update the coverage formula.  Because, however, no changes have since made, the court may prepared to go the rest of the way this time.

Handing a huge legal victory to Republicans, a federal appeals court in Washington has ruled that a president can make recess appointments only during a congressional recess when the vacancies arise.

The ruling came Friday from a three-judge panel of the US Court of Appeals for the District of Columbia.  Business groups challenged last year's recess appointments to the NLRB, the National Labor Relations Board, and the court ruled today in their favor.

"The filling up of a vacancy that happens during a recess must be done during the same recess in which the vacancy arose," the court said.

Last January, President Barack Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau, and by putting three new members on the NLRB. (Obama re-nominated Cordray to a full appointment at the same position on Thursday.)

"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," House Speaker John Boehner said at the time.  "I expect the courts will find the appointment to be illegitimate."

The court ruled today on a challenge to the appointments brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB. The company claimed that the president had no power to appoint the new NLRB members, and that the subsequent action by the board therefore lacked legitimacy.

At the core of the dispute is Article II of the Constitution, setting out the president's duties and authorities. They include "the power to fill up all vacancies that may happen during the recess of the Senate."

During the nation's first century, Congress was in session less than half a year. The recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to act on nominations.

"There is no reason the Framers would have permitted the President to wait until some future intersession recess to make a recess appointment, for the Senate would have been sitting in session during the intervening period and available to consider nominations," the court said today.

In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses in the summer and around holidays. 

But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that the Senate remained in session and recess appointments could not be made. Senate Republicans have since continued the pro forma practice. 

"Such short intra-session breaks are not recesses," the bottling company argued.  "Otherwise, every weekend, night, or lunch break would be a 'recess' too."

Senate Republicans joined the lawsuit. They argued that by declaring the Senate incapable of performing its functions during the pro-forma sessions, "the President usurped the Senate's control of its own procedures. And by appointing officers without the Senate's consent, he took away its right to review and reject his nominations."

The Obama Justice Department argued that the pro-forma procedures, each lasting less than a minute, are a sham and do not mean the Senate was actually in session.  "It could not provide advice or consent on presidential nominations during that 20-day period," government lawyers argue.

In agreeing to its holiday break, Justice Department lawyers note, the Senate "provided by order that 'no business' would be conducted."

The government lawyers said there's nothing mysterious about the meaning of the word recess -- "a break by the Senate from its usual business, such as periods in which the Framers anticipated that senators would return to their respective states."
 
"The pro forma sessions were not designed to permit the Senate to do business, but rather to ensure that no business was done," the Justice Department claimed.

President Obama invoked the recess appointment power 32 times during his first term to fill vacancies in full-time government positions, though he has not made any since last January's controversy. President Clinton made 95 recess appointments during his administration.  President George W. Bush used the power 99 times. 

If, as seems likely, the issue gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, stirring controversy since the beginning.

The House of Representatives yesterday passed a Republican debt-ceiling proposal providing that if either chamber of Congress hasn't passed a budget resolution for the upcoming fiscal year by April 15, the congressional payroll office must withhold the paychecks for the members of that body.

In other words, they wouldn't get paid until they act or until the current session of Congress ends in 2015.

But is that provision constitutional?

The 27th Amendment, added to the Constitution in 1992, is intended to prevent members of Congress from giving themselves a raise. But it doesn't merely say that any raise can't take effect until the next Congress. It says members cannot vary their own pay.

Here's the entire text of the amendment: "No law, varying the compensation for the services of the senators and representatives, shall take effect, until an election of representatives shall have intervened."

The debt limit bill, said House Ways and Means Committee Chairman Dave Camp, "was carefully crafted to comply with the requirements of the 27th Amendment."

"The amount that members are paid will not be reduced nor will it be raised," Camp said during Wednesday's House debate. "There is no requirement in the 27th Amendment which states that members have to be paid weekly, biweekly, monthly, or bimonthly, or what have you, only that the pay that they receive will not vary."

Not so, said Rep. Robert Brady, a Pennsylvania Democrat, who believes putting the money in escrow, as the House bill provides, doesn't solve the issue. "If you aren't getting a paycheck in a month and you're going to wait for 18 months, that's varying. So it could be -- and, in my opinion, it is -- a constitutional problem," he said.

Who's right? Does holding the checks, but ultimately giving members their money, avoid a constitutional defect?

Professor Michael Froomkin of the University of Miami School of Law doesn't believe it's constitutional.

"I don't think this is even a close question: In my view, the escrow provision clearly does not [avoid the constitutional defect]," Froomkin said.

"The prohibition on varying the compensation seems pretty clear to me. It means no changes in amount and no changes in time of payment, because there is a time value to money. Anyone who gets a salary would think it a very material change in the terms if the money were escrowed for more than a year and a half instead of being made available to pay the mortgage," he added.

The opposite view came in a statement released by the House Ways and Means Committee, written by conservative lawyers David Rivkin and Lee Casey. "It is creative, it is fiscally responsible, and it is attentive to the text and structure of the Constitution," they said.

Some consideration was given to putting the deferred paychecks into an interest-bearing account, but Republicans rejected that idea, concluding that it would increase members' pay in clear violation of the 27th Amendment.

The Supreme Court has never interpreted the amendment, and no member of Congress has yet come forward to suggest suing over the escrow provision. Given the Supreme Court’s narrow view of who has legal authority to sue, it’s likely only a member of Congress who had a paycheck withheld would have the proper standing to challenge it.

As the 40^th anniversary of the Roe v. Wade Supreme Court decision takes place on Tuesday, a majority of Americans – for the first time – believe abortion should be legal in all or most cases, according to a new NBC News/Wall Street Journal poll.

What’s more, seven in 10 respondents oppose Roe v. Wade being overturned, which is the highest percentage on this question since 1989.

“These are profound changes,” says Republican pollster Bill McInturff, who conducted this survey with Democratic pollster Peter D. Hart and his colleagues.

Related: Poll shows public lowers expectations heading into Obama's 2nd term

McInturff adds that the abortion-related events and rhetoric over the past year – which included controversial remarks on abortion and rape by two Republican Senate candidates, as well as a highly charged debate over contraception – helped shaped these changing poll numbers.

“The dialogue we have had in the last year has contributed … to inform and shift attitudes.”

View the poll results here

The 1973 Roe v. Wade decision established a woman’s constitutional right to an abortion, at least in the first three months of pregnancy.

According to the poll, 54 percent of adults say that abortion should be legal either always or most of the time, while a combined 44 percent said it should be illegal – either with or without exceptions. 

Recommended: Obama takes ceremonial oath, tells nation 'our journey is not complete'

That’s the first time since this poll question was first asked in 2003 that a majority maintained that abortion should be legal. Previously (with just one exception in 2008), majorities said abortion should be illegal.

In addition, a whopping 70 percent of Americans oppose the Roe v. Wade decision being overturned, including 57 percent who feel strongly about this.

That’s up from the 58 percent who said the decision shouldn’t be overturned in 1989; the 60 percent who said this in 2002; and the 66 percent who said this in 2005.

By comparison, just 24 percent now want the Roe v. Wade decision overturned, including 21 percent who feel strongly about this position.

Much of this change, the NBC/WSJ pollsters say, is coming from African Americans, Latinos and women without college degrees -- all of whom increasingly oppose the Supreme Court decision being overturned.

The NBC/WSJ poll was conducted Jan. 12-15 of 1,000 adults (including 300 cellphone-only respondents), and it has a margin of error of plus-minus 3.1 percentage points. 

Related: 40 years after landmark decision, restrictions on abortion grow

The U.S. Supreme Court has set aside two days in late March to hear oral argument on the same-sex marriage cases.

On Tuesday, March 26, it will take up the fight over California's Proposition 8, which banned same-sex marriage in the state.

The next day, Wednesday, March 27, it will hear the challenge to the federal Defense of Marriage Act, which bars the federal government from recognizing same-sex marriages in the states where they're legal.

“U.S. Supreme Court Justice Antonin Scalia on Monday found himself defending his legal writings that some find offensive and anti-gay,” AP writes. Speaking at Princeton University, Scalia was asked by a gay student why he equates laws banning sodomy with those barring bestiality and murder. ‘I don't think it's necessary, but I think it's effective,’ Scalia said, adding that legislative bodies can ban what they believe to be immoral.”

He added, “If we cannot have moral feelings against homosexuality, can we have it against murder? Can we have it against other things?"

A federal appeals court on Wednesday takes up the issue of a president's power to make appointments when the Senate is out of town, one that has divided Congress and the White House for decades.

Last January, President Barack Obama infuriated Senate Republicans by naming Richard Cordray to be director of the newly formed Consumer Financial Protection Bureau and putting three new members on the National Labor Relations Board (NLRB).

"It's clear the president would rather trample our system of separation of powers than work with Republicans to move the country forward," House Speaker John Boehner said at the time. "I expect the courts will find the appointment to be illegitimate."

Now the issue is squarely before the courts.  A three-judge panel of the U.S. Court of Appeals in Washington, D.C., is taking up a challenge to the appointments, hearing a lawsuit brought by a Pacific Northwest soft drink bottler who lost a union dispute before the NLRB.

The company claims that the president had no power to appoint the new NLRB members and that the subsequent action by the board therefore lacked legitimacy. Similar challenges are pending in federal courts around the nation, brought with the backing of the U.S. Chamber of Commerce and other business groups.

At the core of the dispute is a provision of Article II of the Constitution, setting out the president's duties and authorities. They include "the power to fill up all vacancies that may happen during the recess of the Senate."

During the nation's first century, Congress was in session less than half a year. Recess appointment power allowed the president to keep the government functioning by filling important jobs when the Senate was not around to confirm nominations.

In modern times, presidents of both parties have used the power to make appointments during much shorter congressional recesses in the summer and around holidays. 

But during the George H.W. Bush administration, Democrats came up with the idea of pro forma sessions, in which the body was gaveled to order then immediately adjourned for another few days. They claimed that the Senate remained in session and that recess appointments could not be made. Senate Republicans have since continued the pro forma practice. 

"Such short intra-session breaks are not recesses," the bottling company argues in court papers.  "Otherwise, every weekend, night or lunch break would be a 'recess' too."

What's more, the company argues, the Senate, not the president, is the proper judge of whether it is in recess, and it agreed by unanimous consent to remain in session from mid-December to mid-January.  During that period, on Dec. 23, the Senate passed an extension to the payroll tax cut, the company notes.

Senate Republicans have filed their own friend-of-court brief. They argue that by declaring the Senate incapable of performing its functions during the pro-forma sessions, "the president usurped the Senate's control of its own procedures. And by appointing officers without the Senate's consent, he took away its right to review and reject his nominations."

But the Obama Justice Department argues that the pro forma procedures, each lasting less than a minute, are a sham and do not mean the Senate was actually in session. "It could not provide advice or consent on presidential nominations during that 20-day period," government lawyers argue.

In agreeing to its holiday break, Justice Department lawyers note, the Senate "provided by order that 'no business' would be conducted."

The government lawyers say there's nothing mysterious about the meaning of the word recess -- "a break by the Senate from its usual business, such as periods in which the Framers anticipated that senators would return to their respective states."

"The pro forma sessions were not designed to permit the Senate to do business, but rather to ensure that no business was done," the Justice Department says.

President Obama invoked the recess appointment power 32 times during his first term to fill vacancies in full-time government positions, though he has not made any such appointments since last January's controversy. President Clinton made 95 recess appointments during his administration; President George W. Bush used the power 99 times. 

If, as seems likely, the issue gets to the Supreme Court, the justices could settle a passionate debate over a presidential power used hundreds of times, stirring controversy since the beginning.

With the Obama administration posing no objection, the U.S. Supreme Court today gave a Christian college in Virginia a chance to carry on its claim that the Obama health care law violates religious freedom.

Liberty University was among the first challengers of the law, arguing that two provisions violate its religious freedom -- the individual mandate and the requirement that employers provide health insurance or pay a penalty. The case was never fully developed, however, because the court of appeals for the Fourth Circuit ruled that the law could not be challenged before it went into effect. On the first time through the courts, the trial judge ruled against the school, but the appeals court said a federal law that imposes a tax cannot be challenged ahead of time.

Saul Loeb / AFP - Getty Images

Today's action by the Supreme Court does not mean that the justices think Liberty University is right. It simply means the court has concluded that the school should be given a chance to start over rather than leaving the question unresolved.

The Obama administration had told the court that it poses no objection to giving Liberty a shot at making its religion arguments, even though the government believes "those claims lack merit."