The Supreme Court's Amnesia and New Process Steel

Today the Supreme Court issued the New Process Steel decision, which invalidated something like 600 National Labor Relations Board cases that were decided by a two member NLRB panel.  Link to Supreme Court decision The decision is remarkable not for the hypocritical reading of the governing statute by a group of justices normally devoted to the plain meaning of a statute, but for the complete lack of appreciation for real world issues.

The NLRB is composed of five members, have staggered terms and are appointed by the president subject to Congressional approval.  Politics can delay appointments for months, or even years as in the case of Craig Becker.  Towards the end of 2007 the Board found itself down to four members and one vacancy, with the expectation of another two vacancies.  In anticipation of only having two members, the Board delegated its authority to three members.  The Board believed (relying on legal opinions) that this delegation would permit two members to act as a quorum if and when vacancies reduced its membership to two.
Because the Republicans would not approve the appointment of any new NLRB members, the Board was composed of two members until this year, when Obama finally recess-appointed two members.  Thus, during a two year period a two-member Board issued approximately 600 decisions.  One of those decisions was challenged on the basis that the NLRB lacked the authority to delegate its powers to a two-member quorum.

The Supreme Court agreed that the NLRB lacked such authority in a 5-4 decision written by Stevens and joined by Scalia, Thomas, Roberts, and Alito.  The actual decision turns on statutory interpretation.  Suffice it to say that although the majority thought that the NLRB's reading of the statute was "permissible," it nonetheless held that Congress did not intend to permit the Board to act with two members.  Bizarrely, the Court acknowledged that two members could render decisions on behalf of the entire Board, but not when one of the members was "vacant."  As the dissent pointed out, the plain language of the statute authorized the delegation.  The dissent also had it exactly right when it noted that the Board through "the promotion of industrial peace."

This is the bigger picture that the Roberts/Scalia block on the Supreme Court can't or won't get.  The National Labor Relations Act, which the NLRB interprets, was designed to minimize industrial strife and place workers and employers on more of a level playing field.  The NLRA affects real lives, real people, and it is against that backdrop that the statute should be interpreted and enforced.  The New Process Steel decision is only the latest in a long line of Supreme Court decisions that seem to have forgotten the purpose of the NLRA.  Even the Democratic appointees on the Court now are mostly pro-business, as can be seen in the Court's willingness to favor employers over employees, corporations over people, and business over all.  This is what distinguishes the Roberts Court, and what is reflected in the New Process decision.