that won't be resolved until the SCOTUS rules (and maybe not even then).
Remember (and I'm not apologizing for it) that in a sense we started this when, during Chimpy's second term, we started using the pro forma session device to prevent him from making recess appointments. (There actually was an agreement in August of 2007, I think) where the repubs agreed not to make appointments and Reid let the Senate recess. Keep in mind that we didn't want the Senate to adjourn in those days and there was nothing either bush or the House could do about it.
Fast forward to 2012. We still control the Senate and we want to make recess appointments. We had been able to do so in 2009 and 2010 because there was no one who could stop the Senate from recessing. However, after the 2010 elections, the House was controlled by the repubs and we couldn't recess the Senate (thus setting the stage for a recess appointment) without the assent of the House. And taking a page from our playbook, the House would have pretend sessions which kept the Senate from recessing for more than a couple of days at a time.
The most recent move, by the court, renders moot most of the above maneuvering. One can only make a recess appointment during the period when one session of congress has adjourned and the next session hasn't begun. That can be accomplished by recessing without saying its "sine die" -- if Congress wants to call it quits in October and not plan on coming back until January 3, they can do so without saying that the session is at an end. And then they can adjourn at 12 noon on January 3 and immediately thereafter convene the new Congress. All it takes is the wielding of the gavel. But more importantly, whether the recess at the end of one Congress leading into the beginning of the next is a minute, a day, a week, a month or three months, the court's decision, if upheld, would mean that the only vacancies that can be filled via the recess appointment route are vacancies that occur after the recess commences. So if a vacancy occurs while Congress is in session and the President seeks to fill it and the nomination is filibustered or otherwise not acted upon, the President couldn't fill the vacancy once a recess occurred because the vacancy pre-dates the recess. That all but kills the use of recess appointments.
The SCOTUS will definitely take this case, imo. In addition, I think the chances are pretty good they'll reverse on the "only vacancies created after the recess started" portion of the decision. As for whether recess appointments can be limited to intersession recesses and whether Congress can elect not to recess sine die even when they are basically calling it quits for the year -- those questions could go either way, imo.
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