06/02/2014 12:12 pm ET Updated Jul 30, 2014

Junior Varsity Politics: SCOTUS Finalizes NLRB v. Noel Canning

Justice Stephen Breyer warned of the danger when Supreme Court Justices are perceived as "junior-varsity politicians" on May 20, 2014 at the American Law Institute. President Franklin D. Roosevelt -- almost exactly 79 years earlier -- blasted the Court for playing such politics after it repeatedly crushed needed New Deal reform programs. In his famed press conference of May 31, 1935, FDR turned the phrase: "We have been relegated to the horse-and-buggy definition of interstate commerce."

President Roosevelt rejected "horse-in-buggy" definitions and simplistic "right or left" rhetoric of the Court as being "first-year high-school language." FDR knew that challenges to the Social Security Act and the Wagner Act (which created the National Labor Relations Board) were soon to be at play before the high court. Roosevelt's analysis is directly applicable to NLRB v. Noel Canning, the recess appointment challenge scheduled for a June ruling, as I discuss more fully in a Cardozo Law Review article.

Past as Prologue: Taking a JV-Appeal of a Legislative Loss

Ideologues, corporate-interests and partisans who lost 1930s congressional battles resulting in New Deal programs did not give up. Rather, they filed litigation en masse to challenge the reform measures in federal ("junior varsity") courts across the nation. A Justice Department memo of the 1930s warned of a "general attitude of law defiance" by the business community: "A law is now the law only after every last detail has been fought in every last court." The Liberty League offered free legal services to any and all business plaintiffs who would challenge New Deal legislation.

During the early 1930s, over 100 lower level federal judges issued 1600 injunctions against New Deal programs. Future Justice Robert H. Jackson, then serving as a Treasury Department counsel, described how "hell broke loose in the lower courts." (Today, it is the Chamber of Commerce's National Litigation Center that successfully plays the "lose and sue" game.)

Roosevelt Fights Judicial Usurpation of Political Branch Authority

After a solid re-election victory, FDR briefed his case against judicial obstructionists in the 1937 State of the Union address:

The Judicial branch also is asked by the people to do its part in making democracy successful. We do not ask the Courts to call non-existent powers into being, but we have a right to expect that conceded powers or those legitimately implied shall be made effective instruments for the common good. The process of our democracy must not be imperiled by the denial of essential powers of free government.

Soon thereafter, FDR announced a bold "reorganization" plan for the judiciary. Roosevelt lost the epic constitutional battle but won the war. In NLRB v. Jones & Laughlin Steel Corporation, the Court abandoned its simplistic "horse-and-buggy" definitions. SCOTUS accepted that the political branches had authority to attempt economic reform, including to create the NLRB.

Today's NLRB v. Noel Canning dispute has borne a strange new hybrid of the rejected "horse-and-buggy" definitions. The D.C. Circuit's simplistic definitional ruling conjures the malevolent spirit of the Four Horsemen. At oral arguments, Justice Elena Kagan wondered aloud if recess appointment authority was only a "historic relic" of the "horse and buggy" age.

"Junior Varsity Politicians" -- Noel Canning Presents a Political Question but Threatens Worse

The Court should stay out of the partisan fight over appointments, as I argued repeatedly here, in an amicus brief supporting the NLRB, and a Cato Institute/Federalist Society event debating recess appointments, and recently in the Cardozo Law Review. The litigation presents a nonjusticiable political question that only the Senate and the President should resolve. It is also obviously an ethical conflict-of-interest for judges to have the last word on the appointment process; particularly the alternative, recess method that has brought significant racial and gender diversity to the federal bench.

In 2003, Chief Justice William H. Rehnquist artfully described the Depression Era constitutional conflict as ultimately turning on the president's appointment authority:

President Roosevelt lost the Court-packing battle, but he won the war ... not by any novel legislation, but by serving in office for more than twelve years, and appointing eight of the nine Justices of the Court. In this way, the Constitution provides for ultimate responsibility of the Court to the political branches of government.

There is much at stake in the Noel Canning adjudication. Steven Breyer is right: There is inherent danger to the public's trust in our legal system when justices are perceived as playing "junior-varsity" politics. More danger still, when they actually do. Noel Canning is due in June.


Victor Williams is an attorney in Washington D.C. and clinical assistant professor at Catholic University of America, Columbus School of Law. Victor Williams founded The American Institute for Disruptive Innovation in Law and Politics --