Both sides in a case the Supreme Court heard in March on the powers of the National Labor Relations Board urged the Court this week to go ahead and rule in the case, saying that the outcome of hundreds of past and potential future cases are or could be riding on the outcome. In supplemental letter briefs filed on Monday in response to the Court’s order earlier this month, lawyers for both the Board and for New Process Steel said President Obama’s recent appointments of two new Board members does not end the need for a final ruling in the case (08-1457), argued March 23.  The Solicitor General’s letter brief is here, and New Process’ simultaneously filed letter brief is here.
The issue the Court is now considering is the legality of Board rulings when only two of its members participate. New Process Steel has argued that the Board cannot legally take action when the Board, often shorthanded in recent years, has fewer than three of its normal complement of members taking part. The Board believes that a two-member panel can legally be handed the assignment to decide a case when necessary. Lower federal courts are split on the issue, leading the Justices to grant New Process’ petition last November.
Solicitor General Elena Kagan, in her new brief, laid out a potentially chaotic situation if the membership issue is not resolved. Somewhere near 700 other cases have been decided by only two members, and the Board insists that it is entitled to have its rulings in those cases enforced in court.  Some 500 cases have not even been challenged in court yet, Kagan added.  And, she said, it is unclear — until the Court resolves the issue — whether the Board legally could re-ratify all of the previously decided cases in one grand order.
Moreover, both Kagan and the lawyers for New Process Steel noted the difficulties the Board has had in achieving full membership in recent years, and suggested that it might resort to two-member decisions in the future if that situation arises again.
Whether the Court agrees with the lawyers that the case remains a live controversy is unclear at this point, but that seems very likely to be its reaction. A case argued as recently as late March, however, is not likely to be decided for several more weeks. With the completion of oral arguments in pending cases, as of Wednesday, the Court will then begin a push to decide all of the remaining argued cases before recessing for the summer in late June or early July.
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