The public colloquy between President Obama and Chief Justice Roberts continues, but this time they have acted in concert rather than at loggerheads.
At Tuesday’s oral argument in New Process Steel v. National Labor Relations Board, the Court considered whether the five-seat NLRB could command a quorum of three when only two members actually sat on the board. The Government argued that two board members could, in fact, constitute a quorum for NLRB deliberations in the face of Senatorial obstruction to the President’s three nominees to the NLRB.
After Justices Kennedy, Scalia, and Ginsburg grilled Deputy Solicitor General Katyal over the broken nomination and confirmation process, Chief Justice Roberts lobbed a final, “why are we even here?” question: “And the recess appointment power doesn’t work why?”
Today the President demonstrated that he heard the Chief Justice’s suggestion and used his recess appointment power to place two of his NLRB nominees, both Democrats, in their posts. Obama left unappointed his third nominee, a Republican.
Whether Obama’s move will compel a majority of the Roberts Court to dismiss the case as moot remains uncertain. Like Kiyemba, the facts of the case before the Court have so changed as to seemingly unmoor the legal question. For this reason, the Court may “G…VR” the case for consideration by the newly quorum’ed NLRB.
Nevertheless, New Process Steel’s claim remains grounded in the fact that a statutorily questionable two-member NLRB rendered a decision against the company; indeed, there stand many NLRB decisions made by its two members whose statutory legitimacy would remain questionable without the Court’s ruling.
Further, even with the four members now sitting on the NLRB, simple math and recess appointment rules suggest that the Court would do well to clarify matters: first, one NLRB member is set to retire this summer; second, the two members appointed today may not receive Senate confirmation at the end of the next session of Congress–and at least one has faced significant opposition. Four minus one minus one or two. That’s back to below three NLRB members.
The concrete grievances over the legitimacy of past two-member NLRB decisions such as the one against New Process Steel are far more persuasive reasons why the Court should address the merits of this case than the fear of some future moment when the NLRB dips back down below three members. But that fear of the future will surely affect the Court’s reasoning if it does choose to decide the case so to retroactively (and therefore prospectively) bless or condemn the two-member decisions.
Back when I started up F1@1F, Kiyemba v. Obama stood to be argued this morning as the next installment of the Court’s Guantanamo cases, following 2008’s landmark ruling in Boumediene v. Bush. The case asked whether a federal judge had the power to relocate into the United States the few remaining Uighurs held at Guantanamo after they were determined not to have been enemy combatants.
But then the Swiss agreed in early February to resettle the remaining Uighurs just before the Government’s brief was due to the Court. Despite some arguing that the Court should still hear the case for the legal issues presented, the Court remanded the case for further review, stating that “[n]o court has yet ruled in this case in light of the new facts, and we decline to be the first to do so.” Five of the Uighurs remain in Guantanamo after refusing multiple relocation offers from countries without established Uighur communities.
Without Kiyemba on the docket, this week has held little promise for F1@1F. I thought about going to this morning’s remaining case, New Process Steel v. National Labor Relations Board, just to see what the line would be like for a case asking whether two people equals three people (really!). But my alarm this morning also woke in me some bleary-eyed clarity: the Court could be handing down major opinions from its October sitting this morning and I would be attending a lunch talk by Judge Diane Wood. I could very well be writing about these things through the afternoon and evening, so I chose to get a few more hours of sleep rather than watch the justices themselves pass out during an argument about an NLRB quorum.
Without writing material from the Court, I went off to see Judge Wood speak at an ACS lunch discussion. Whether she was in DC solely for this event, or if she had some more important matters in DC, no one said. In fact, her talk and the accompanying Q&A focused almost exclusively on Seventh Circuit practice.
The only noteworthy quotes came from Tom Goldstein of SCOTUSBlog, who, in introducing Judge Wood, recognized the “undeniable subtext” of why I and nearly all of the Supreme Court press corps was in attendance: “if the stars align and the Left shows some guts, Diane Wood should be on the Supreme Court.”
It was a necessarily glowing, but no less sincere, introduction from the man who predicted last month that President Obama would pass over Wood for the younger, more confirmable Elena Kagan. F1@1F, however, continues to maintain that Wood will be the next justice should Justice Stevens retire at the end of this term.
Even though I left the talk without a story, it was good to have a potential before-she-was-a-justice moment. Still, here’s to a more fruitful next week for F1@1F.
Finally, two bits of miscellaneous debris from yesterday:
- ABC’s Ariane de Vogue wrote yesterday about Goodwin Liu’s nomination to the Ninth Circuit, with a sub-headline of, “Contentious Hearing for Lower Court Nominee to Foreshadow High Court Battles to Come.” The article reports out and builds upon what I observed here in January.
- The Atlantic’s Marc Ambinder has a “you heard it here first” post about Ben Mizer, Ohio’s Solicitor General. Ambinder seems to suggest deeply between the lines that Mizer, who argued before the Court yesterday, stands a chance well down the line of becoming a Justice.
UPDATE: Dahlia Lithwick makes me wish I went to this morning’s case after all…
Thanks to Professor Randy Barnett for the VC shout. I just finished reading the first part of his book-to-be, Fundamental Rights in the Constitution and very much enjoyed his exploration of the Ninth Amendment‘s original public meaning.
Also, over the weekend, Professor Orin Kerr, another prominent Conspirator, suggested that I supply some information on how early one must arrive in line at the Court to get a decent chance of getting inside to hear an argument. Here are my preliminary thoughts:
- Be Before 50th: The Court reserves at least fifty seats for the general admission line.
- The “Dogs”: From my experience, if you get in line between 7 and 8 for the “dogs”–the technical cases without any newspaper coverage–you’ll get in. By “experience,” I mean the first oral argument I ever attended, Danforth v. Minnnesota, for which my father and I got in line around 8am, received numbers around 50, and were among the final ones seated inside the Court. Of course, despite no major awareness of Danforth in the news or general public, the case, like all SCOTUS cases, was still massively important for its area of law. Indeed, Prof. Kerr noted Danforth‘s major legal importance for criminal law and procedure over at VC in November 2007. This week’s cases, as far as I can tell, haven’t touched any public nerve, so I am taking this week off from the line. I leave it up to the Klingensmiths to tell me otherwise. Still, keep your eyes trained on F1@1F at the 10am hour should Wednesday see the release of Citizens United.
- The “Mid-Majors”: Get in line by 6am. Last week’s cases exemplify the “mid-major” cases: issues that attract the public’s attention without creating a frenzy. Briscoe mattered not as much for its subject matter, but rather for Sotomayor’s centrality in the fate of a year-old precedent. Comstock dealt with sex offenders (and, of course, the scope of the Necessary & Proper Clause of the Constitution), who are always interesting subject matter. American Needle fought against the NFL, which sounds cool regardless of the more mind-numbing aspects of antitrust law that really animated the case.
- The “Blockbusters”: Get in line before 4am…and that probably won’t be good enough. I got in line for the rehearing of Citizens United, also Justice Sotomayor’s first oral argument, at 11pm, thinking that there would already be a line at least a dozen people long. There wasn’t. I was first. The next batch of people didn’t show up until 3:45am. That said, for the super-blockbusters, prepare to eat your previous night’s dinner on the First Street sidewalk: friends of mine got in line at 4:30pm on Heller‘s Eve…they were around 40th. This term’s blockbusters–McDonald, Kiyemba, Christian Legal Society, Doe v. Reed—will likely draw its earliest linegoers at varying hours of which I am not yet qualified to predict.
Once again, thank you for coming by F1@1F. Although I will not be reporting from line this week, I will endeavor to keep the content flowing!