The Supreme Court must decide whether five minus three equals three.

Oral argument from the court.
March 23 2010 6:36 PM

5-3=3

A case tests the arithmetical skills of the Supreme Court justices.

Justice John Roberts. Click image to expand.
Chief Justice John Roberts

Anyone who's been watching the way they crunch numbers in Washington this week knows that everything is fuzzy—right down to the integers. Numbers aren't just imprecise. They're also up for negotiation. And that's how the Supreme Court finds itself in the position of trying to determine today when a government board of five actors is in fact the same as a group of three, that might actually be equivalent to a coven of two.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

This morning's case, New Process Steel v. NLRB, thankfully has nothing to do with politics and everything to do with close-reading the text of an ambiguous statute. The National Labor Relations Board was created in 1935 by the National Labor Relations Act and is tasked with adjudicating unfair labor practices. The board has been the source of increasingly rancorous slap-fighting in recent decades, and so while ordinarily the board is comprised of five members, appointed by the president and approved by Congress, it's been limping along with only two members since the end of 2007, while senators—then Democrats, now Republicans—gaily hold up the nominations process for the remaining nominees. Democrat Wilma Liebman and Republican Peter Schaumber have now issued more than 600 board decisions, including a decision unfavorable to New Process Steel, which claims that the two-member board lacks authority to issue decisions in the first place.

So the court has been asked to decide whether the statutory language creating the board allows it to function with only two members. Easy-peasy, right? There's nothing the court loves better than mucking out the colons and dangling clauses of statutory language. This morning is a cheerful bacchanal of subordinating conjunctions.

Section 3(b) of the act authorizes the NLRB "to delegate to any group of three or more members any or all of the powers which it may itself exercise." The statute goes on to say that a "vacancy in the Board shall not impair the right of the remaining members to exercise all of the powers of the Board, and three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group designated pursuant to the first sentence hereof." Let me assure you that no matter how many times you go back and read all that, it sounds like three members of the board "at all times" constitute a quorum "except that" two members constitute a quorum if the group delegated that power to itself. This is precisely what the board did in December 2007, when the board still had four members but the terms of two members were about to expire. The four-person board delegated its authority to a "group of three or more members," then two members left, and the two remaining board members have chuffed along resolving disputes since then. The 7th Circuit ruled that two members could indeed constitute a quorum. The D.C. Circuit says you need at least three.

Sheldon E. Richie represents New Process Steel, and Justice Ruth Bader Ginsburg soon pins him over whether a group with a quorum of two is the board or an agent of the board. Justice Stephen Breyer asks what happens if the board of five delegates its power to three and then one of them dies. And I feel myself transported, just as you are doubtless being transported right now, to that one college lit class where pretty girls with long black hair talked wispily about Keats' "Endymion"  while a solitary fly buzzed against the window pane. ...

The chamber comes back to the present from this somnolent reverie when Richie says, in response to a question from Justice Sonia Sotomayor, that "what we have here is a phantom group." In fact, it seems to be a phantom group with a phantom member. Very Endymion. Richie explains to Justice Stephen Breyer that the problem with a board of two is that the board is expected to engage in "robust debate" whereas the two lone remaining members "have publicly announced that on more than one occasion over the last two years plus three months when this board has sat with only two members, that they have sometimes compromised their opinions in the interest of the institutional purpose." Yes, bipartisan compromise does totally suck that way.

Breyer, glancing slyly at Justice Antonin Scalia, asks a question about the legislative history of the Taft-Hartley Act (Scalia loathes legislative history) then adds, "But I assume from the briefs filed that there is no supporting legislative history for what I've just said, so I better wipe it out of my mind." A grinning Scalia shoots back, "If there is no legislative history, it could be true."

This is what passes for fisticuffs here on Maryland Avenue.

Deputy Solicitor General Neal Katyal rises to defend the NLRB. Katyal hangs his hat on the "except that" language, which he says allows panel quorums of just two members. Scalia is having none of that: "I must say that seems to be a very strange procedure when you have a statute that says the board has to have three for a quorum. But when the board sees, 'oh, God, we are about to lose our third member, let's set up a three-member panel with this guy who's about to go off. It will immediately become a two-member panel and then we can act with only two members. That's wonderful.' " He calls it an "evasion" of the quorum requirement.

Katyal and Justice John Paul Stevens tussle over whether the clause should have been written in the past or present tense to govern what happened two years after the group delegated its powers. In rides the chief justice with another hypothetical: "What if the board, consisting of five members—let's say three Democrats and two Republicans—the three Democrats delegate to a group the authority to act as a board. They designate themselves as the members of the group. They have at that point, authorized themselves to act as the board with as little as two members, even though they couldn't have done that as members of the board?"

Katyal suggests that if the two evil conspiring Democrats attempted to edge out the rest of the board the president could "remove them for cause." Roberts comes back with (hypothetically) "What if he's perfectly content to have two Democrats?"

Oh dear. And everyone had been playing together so nicely.

Alito presses Katyal on the lack of robust debate among only two people: "They have to split the difference all the time." And Katyal replies, "I am not here suggesting that the two-member board is ideal or equivalent or an optimal thing. Congress set out five. But faced with a vacancy crisis and shutting down the board entirely, I think the board did the prudent thing here by continuing to operate, continuing for these 800 or so days to decide these cases."

Justice Scalia disagrees. "If shutting down is the only way to put pressure on Congress to—I mean, you may have a Congress that is just delighted to have only two Democratic members left on the board and all the cases decided by two Democratic members. What possible incentive does that Congress have to increase the board to the level that it should be? None. If you want to solve the crisis  … the only way to solve it is to say: 'Boy, you know, there is—it's Armageddon coming [much laughter]. We are going to not be able to act at all.'"

Scalia has a point. A point he follows up with a query:  "Do we have any notion when the board will reduce to one?" Katyal confirms that yet another member, Schaumber, the Republican, leaves this August. Scalia grins: "At which point there will be some pressure on Congress, I guess, right?"

Ginsburg asks about the status of the three dangling nominees. Katyal replies that, "They were named in July of last year. They were voted out of committee in October. One of them had a hold and had to be renominated. That renomination took place. There was a failed cloture vote in February. And so all three nominations are pending." He adds, "I think that underscores the general contentious nature of the appointment process with respect to this set of issues."

The last twist of the knife comes straight from the chief justice, who asks mildly, "And the recess appointment power doesn't work why?" Katyal admits that the recess appointments process, which allows the president to fill up the board with his temporary appointments while the Senate is out of session, works just fine. It's the president who has been unwilling to pull the trigge r. Arguments end today, as they begin, with Katyal earnestly singing the praise of putting a little more faith in a statute's "subordinating conjunctions." It's a tiny little thing. But given what the rest of Washington is screaming about, the Supreme Court's lyrical version of Washington math isn't a half-bad way to pass a morning.

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