National Labor Relations Board v. Noel Canning

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National Labor Relations Board v. Noel Canning

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Holiday

Orders

RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)

Opinions

Conference

Orders

MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

UNITED STATES V. HAYMOND (17-1672)

MONT V. UNITED STATES (17-8995)

THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
12-1281	D.C. Cir.	Jan 13, 2014 Tr.Aud.	Jun 26, 2014	9-0	Breyer	OT 2013

Holding: The Recess Appointments Clause authorizes the president to fill any existing vacancy during any recess – whether occurring during or between sessions of Congress – of sufficient length. However, for purposes of the clause, the Senate is in session whenever it indicates that it is, as long as – under its own rules – it retains the capacity to transact Senate business.

Judgment: Affirmed, 9-0, in an opinion by Justice Breyer on June 26, 2014. Justice Scalia filed an opinion concurring in the judgment, which Chief Justice Roberts, Justice Thomas, and Justice Alito joined.

Political consequences of NLRB v. Noel Canning (Kali Borkoski)
Symposium: The majority opinion should be all the Senate really needs (John Neiman)
Symposium: Justice Breyer’s dowsing rod finds a limit to the Recess Appointments Clause (Trevor Burrus)
Symposium: Noel Canning and the hesitant Court (Adam Winkler)
Symposium: A win for the Constitution’s text and history (Brianne Gorod)
Symposium: What divides the Court, and what unites it (William Baude)
Can a president (with a little help from one senator of his party) circumvent most of the Court’s limitation on the recess appointments power? (Tom Goldstein)
Symposium: Custom and textual meaning – Chevron deference should not be allowed to manufacture constitutional ambiguity (Richard A. Epstein)
Court strikes down recess appointments: In Plain English (Amy Howe)
A "view" from the Court: Some surprises in penultimate session (UPDATED) (Mark Walsh)
Opinion analysis: Pragmatism triumphs over formalism (Lyle Denniston)
Recess appointments power in jeopardy, but to what extent? Today's argument in Plain English (Amy Howe)
Argument recap: An uneasy day for presidential power (Lyle Denniston)
Analysis: The original understanding of the president’s recess appointment power (Carl Cecere)
Defining the scope of the President's recess appointment powers: In Plain English (Amy Howe)
Argument preview: The nomination wars (Lyle Denniston)
Court bypasses RICO test case (Lyle Denniston)
Symposium: The Constitution’s Framers gave the president recess appointment power to foster functional government (Elizabeth Wydra)
Symposium: How would Edward M. Kennedy have approached the Noel Canning case? (James Flug)
Symposium: Listen to the Senate’s recess bell (Gerard Magliocca)
Symposium: Respecting the wisdom of the past vs. inviting new games to play at recess (Edward Hartnett)
Symposium: The challengingly uncategorizable Recess Appointments Clause (Michael Herz)
Symposium: Noel Canning opens the door (Victor Williams)
Symposium: The originalist and non-originalist cases for following the original meaning of the Recess Appointments Clause (Mike Rapapport)
The President's powers case, made simple (Lyle Denniston)
U.S.: Limit appointment power review (Lyle Denniston)
Recess appointments case set (Lyle Denniston)
Broad limit on appointments urged (Lyle Denniston)
Academic round-up: Wrestling with recess appointments (Amanda Frost)
Recess appointments defended (Lyle Denniston)
President's appointment power curbed (UPDATED) (Lyle Denniston)

Date	Proceedings and Orders (key to color coding)
Apr 25 2013	Petition for a writ of certiorari filed. (Response due May 28, 2013)
May 13 2013	Brief of respondent International Brotherhood of Teamster Local 760 in support filed.
May 23 2013	Brief of respondent Noel Canning filed.
May 23 2013	Brief amicus curiae of Coalition for a Democratic Workplace filed.
May 28 2013	Brief amicus curiae of Constitutional Accountability Center filed.
May 28 2013	Brief amicus curiae of Professor Victor Williams filed.
May 28 2013	Brief amici curiae of Senate Republican Leader, Mitch McConnell, et al. filed.
Jun 4 2013	DISTRIBUTED for Conference of June 20, 2013.
Jun 6 2013	Reply of petitioner National Labor Relations Board filed. (Distributed)
Jun 24 2013	Petition GRANTED In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: Whether the President's recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.
Jul 12 2013	The time to file the joint appendix and petitioner's brief on the merits is extended to and including September 13, 2013.
Jul 12 2013	The time to file respondents' brief on the merits is extended to and including November 18, 2013.
Aug 26 2013	Application (13A209) to exceed the word limits of the parties briefs on the merits, submitted to The Chief Justice.
Aug 28 2013	Application (13A209) granted by The Chief Justice to exceed the word limits of the parties briefs on the merits. provided that each opening brief does not exceed 18,000 words, and that the reply brief does not exceed 7,200 words.
Sep 3 2013	Consent to the filing of amicus curiae briefs in support of either party or neither party received from counsel for the respondent International Brotherhood of Teamsters Local 760.
Sep 12 2013	Consent to the filing of amicus curiae briefs, in support of either party or neither party, received from counsel for petitioner National Labor Relations Board.
Sep 13 2013	Brief of petitioner NLRB filed.
Sep 13 2013	Motion to dispense with printing the joint appendix filed by petitioner NLRB.
Sep 13 2013	Brief of respondent International Brotherhood of Teamsters Local 760 in support of the petitioner filed.
Sep 20 2013	Brief amicus curiae of The Brennan Center for Justice filed.
Sep 20 2013	Brief amicus curiae of Constitutional Accountability Center filed.
Sep 20 2013	Brief amicus curiae of Professor Victor Williams filed.
Oct 7 2013	Motion to dispense with printing the joint appendix filed by petitioner GRANTED.
Nov 4 2013	SET FOR ARGUMENT ON Monday, January 13, 2014.
Nov 5 2013	CIRCULATED
Nov 12 2013	Consent to the filing of amicus curiae briefs, in support of either party or of neither party, received from counsel for Noel Canning.
Nov 18 2013	Brief of respondent Noel Canning filed. (Distributed)
Nov 19 2013	Record from the U.S.C.A. District of Columbia Circuit is electronic and located on PACER.
Nov 21 2013	Brief amicus curiae of Landmark Legal Foundation filed.
Nov 22 2013	Brief amicus curiae of Southeastern Legal Foundation filed. (Distributed)
Nov 25 2013	Administrative record received from the National Labor Relations Board. (1Box)
Nov 25 2013	Brief amici curiae of Senate Parliamentary Experts Robert B. Dove and Martin B. Gold filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Speaker of the United States House of Representatives, John Boehner filed.
Nov 25 2013	Brief amici curiae of Coalition for a Democratic Workplace, et al. filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Daycon Products Company, Inc. filed. (Distributed)
Nov 25 2013	Brief amici curiae of Citizens United, et al. filed. (Distributed)
Nov 25 2013	Brief amicus curiae of International Longshore and Warehouse Union filed. (Distributed)
Nov 25 2013	Brief amicus curiae of American Civil Rights Union filed. (Distributed)
Nov 25 2013	Brief amici curiae of Constitutional Law Scholars filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Cato Institute filed. (Distributed)
Nov 25 2013	Brief amici curiae of Originalist Scholars filed. (Distributed)
Nov 25 2013	Brief amici curiae of Political Scientists and Historians filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Council on Labor Law Equality filed. (Distributed)
Nov 25 2013	Brief amici curiae of Alabama, et al. filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Independence Institute filed. (Distributed)
Nov 25 2013	Brief amici curiae of Judicial Watch, Inc., et al. filed. (Distributed)
Nov 25 2013	Brief amicus curiae of National Federation of Independent Business Small Business Legal Center filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Mountain States Legal Foundation filed. (Distributed)
Nov 25 2013	Brief amici curiae of Brian W. Bulger, et al. filed. (Distributed)
Nov 25 2013	Brief amici curiae of Atlantic Legal Foundation, et al. filed. (Distributed)
Nov 25 2013	Brief amici curiae of State National Bank of Big Spring, et al. filed. (Distributed)
Nov 25 2013	Brief amici curiae of Senate Republican Leader Mitch McConnell and 44 Other Members of the United States Senate filed. (Distributed)
Nov 25 2013	Brief amicus curiae of Professor Tuan Samahon filed. (Distributed)
Nov 25 2013	Motion of Senate Republican Leader Mitch McConnell and 44 Other Members of the United States Senate for leave to participate in oral argument as amici curiae, for divided argument, and for additional argument time filed.
Nov 25 2013	Brief amici curiae of National Right to Work Legal Defense and Education Foundation, Inc., and Jeanette Geary. filed. (Distributed)
Nov 25 2013	Motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument filed.
Nov 25 2013	Response of Noel Canning, et al. to motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae, for divided argument, and for additional argument time filed.
Dec 9 2013	Motion of Senate Republican Leader Mitch McConnell, et al., for leave to participate in oral argument as amici curiae and for divided argument GRANTED, the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al.,
Dec 9 2013	Motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument DENIED.
Dec 13 2013	Letter received from counsel of record for amicus for The Brennan Center for Justice. (Distributed).
Dec 18 2013	Reply of petitioner National Labor Relations Board filed. (Distributed)
Dec 18 2013	Reply of respondent International Brotherhood of Teamsters Local 760 in support of petitioner filed. (Distributed)
Jan 13 2014	Argued. For petitioner: Donald B. Verrilli, Jr., Solicitor General, Department of Justice, Washington, D. C. For respondents: Noel J. Francisco, Washington, D. C.; and Miguel A. Estrada, Washington, D. C. (for Senate Republican Leader Mitch McConnell, et al., as amici curiae).
Jun 26 2014	Adjudged to be AFFIRMED. Breyer, J., delivered the opinion of the Court, in which Kennedy, Ginsburg, Sotomayor, and Kagan, JJ., joined. Scalia, J., filed an opinion concurring in the judgment, in which Roberts, C. J., and Thomas and Alito, JJ., joined.
Jul 28 2014	JUDGMENT ISSUED.
Jul 28 2014	Record returned for U.S.C.A. for District of Columbia Circuit.

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The Supreme Court will release orders from the February 15 conference on Tuesday at 9:30 a.m. There is a possibility of opinions on Wednesday at 10 a.m.
On Tuesday, the justices hear oral argument in Return Mail Inc. v. United States Postal Service.
On Wednesday, the justices hear oral argument in Mission Product Holdings Inc. v. Tempnology, LLC.
On Friday, the justices will meet for their February 22 conference.
Major Cases
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- New York State Rifle & Pistol Association Inc. v. City of New York, New York
  Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA Inc. The sale of an invention to a third party who is obligated to keep the invention confidential may place the invention “on sale” for purposes of the Leahy-Smith America Invents Act, which bars a person from receiving a patent on an invention that was “in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention,” 35 U. S. C. §102(a)(1).
- New Prime Inc. v. Oliveira A court should determine whether the Federal Arbitration Act’s Section 1 exclusion for disputes involving the “contracts of employment” of certain transportation workers applies before ordering arbitration; here, truck driver Dominic Oliveira’s independent contractor operating agreement with New Prime Inc. falls within that exception.
- Stokeling v. United States The Armed Career Criminal Act’s elements clause encompasses a robbery offense that, like Florida’s law, requires the criminal to overcome the victim’s resistance.
- Culbertson v. Berryhill The Social Security Act’s fee cap of 25 percent of past-due benefits imposed on attorneys who successfully represent Title II benefit claimants in court proceedings applies only to fees for court representation and not to aggregate fees for both court and agency representation.
- Henry Schein Inc. v. Archer and White Sales Inc. The “wholly groundless” exception to the general rule that courts must enforce contracts that delegate threshold arbitrability questions to an arbitrator, not a court, is inconsistent with the Federal Arbitration Act and Supreme Court precedent.
see all this term’s cases »
Current Relists
- Altitude Express Inc. v. Zarda Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation.
- Baxter v. United States (1) Whether a conviction for robbery under Florida law qualifies as a “violent felony” within the Armed Career Criminal Act’s elements clause simply because it requires overcoming victim resistance, as the U.S. Court of Appeals for the 11th Circuit has held, or whether such a conviction fails to qualify as an ACCA “violent felony” because Florida caselaw confirms that overcoming victim resistance does not invariably requires the use of “violent force” as the U.S. Court of Appeals for the 9th Circuit has held; and (2) whether a conviction for any state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” within the ACCA’s elements clause if the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
- Bostock v. Clayton County, Georgia Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.
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Chief Justice Roberts at Belmont University

On February 6, Chief Justice John Roberts spoke at Belmont University College of Law with Alberto Gonzales, dean of the law school and former U.S. attorney general.

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Awarded the Sigma Delta Chi deadline reporting award for online coverage of the Affordable Care Act decision.
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15
Conference

19
Orders
RETURN MAIL INC. V. U.S. POSTAL SERVICE (17-1594)

20
MISSION PRODUCT HOLDINGS INC. V. TEMPNOLOGY INC. (17-1657)
Opinions

22
Conference

25
Orders
MANHATTAN COMMUNITY ACCESS CORP. V. HALLECK (17-1702)

26
UNITED STATES V. HAYMOND (17-1672)
MONT V. UNITED STATES (17-8995)

27
THE AMERICAN LEGION V. AMERICAN HUMANIST ASSOCIATION (17-1717)

Cases argued	43
Cases decided	10
Summary reversals	2
Merits cases granted to date	73