Growing Judicial Polarization Complicates NLRB’s Court Tests

Partisan differences in judicial review of National Labor Relations Board decisions are poised to expand as the Trump administration adds even more judges to courts that have stepped up their scrutiny of agency actions.

How frequently appellate court panels upheld NLRB rulings directly correlated to the political affiliation of the presidents who appointed the judges on the panels, according to a Bloomberg Law analysis of decisions since March 2021. The board won 70% of cases when Republican appointees controlled the panels, compared with 81% when Democrats held sway.

That divide is most stark when comparing outcomes from panels entirely made up of judges picked by presidents of the same party. The NLRB prevailed in 62% of its cases decided by only GOP appointees, nearly 30% lower than the board’s win rate in rulings exclusively by Democratic appointees.

Partisan differences have long been a feature in court review of NLRB rulings, said former agency lawyers. But the judiciary has grown more politicized in recent years, with Republican appointees more intently following the US Supreme Court’s cues to apply stricter oversight of administrative agencies, they said.

“Labor law has been at the leading edge of the politicization in the courts that a lot of other policy areas are more recently experiencing,” said Sharon Block, a former NLRB member and appellate litigator who heads Harvard University’s Center for Labor and a Just Economy.

Bloomberg Law’s analysis covered a period after President Donald Trump installed more than 50 circuit court judges during his first term. Currently, about a third of circuit court judges are Trump appointees.

President Joe Biden also left his mark on the bench, putting 45 judges on the circuit courts, and jurists going back to the Carter administration have been involved in reviewing NLRB decisions in recent years.

Nevertheless, many judges tapped by Trump stand out from the rest of the appellate bench, even compared to other Republican appointees, labor law observers said.

“Trump judges are more willing to question established precedent and upend them,” said Matthew Bodie, a University of Minnesota labor law professor and former NLRB attorney. “Trump judges are taking signals from the Supreme Court and are more willing to push boundaries.”

Decisions in NLRB cases over the past five years suggest they take a more aggressive approach when second-guessing the board compared to their colleagues, the analysis found. For example, Trump appointees wrote 11 of the 12 dissenting opinions filed in rulings that went the NLRB’s way during that time.

Circuit Differences

Overall, the NLRB won nearly 75% of 187 contested circuit court cases reviewing its administrative holdings since March 2021. About 10% of those court decisions were split, such that the agency or the challenger partially prevailed but there was still a clear victor.

The NLRB’s win rate in various circuits correlated with their different concentrations of Democratic- and Republican-appointed judges.

The board generally had less success defending its decisions in circuits where the majority of active-status judges were tapped by GOP presidents, including the Third, Fifth, Sixth, Eighth, and Eleventh circuits.

Conversely, the agency has won at a higher rate in some of the Democratic-majority circuits, such as the Second, Fourth, and Ninth.

Results from the DC Circuit—a court that sees more federal agency cases than other circuits—don’t conform to that partisan dynamic.

That court is dominated by Democratic appointees, who now hold seven out of the 11 active-status judgeships. Regardless, it sided with the NLRB in 76% of its decisions, consistent with the board’s win rate across all the circuit courts.

“The DC Circuit is famous for really imposing its thoughts on labor law onto the board, more so than other courts,” said Anne Lofaso, a University of Cincinnati law professor and former NLRB appellate lawyer. “So it makes the agency really work for court enforcement.”

Any party challenging a board ruling can opt to file in the DC Circuit, making it a popular choice for litigants willing to pay a premium for a more favorable venue than their home circuit, she said.

The DC Circuit handed down the most rulings reviewing NLRB orders over the past five years, ahead of the Ninth Circuit, which covers the largest gerographic area. The Fifth Circuit was the third-most frequent venue, due in part to employers taking advantage of the loose jurisdictional rules to file challenges there.

Anti-Agency Environment

The anti-agency zeitgeist in the federal courts is reflected in recent high court precedents—headlined by Loper Bright Enterprises v. Raimondo—as well as rhetoric in judicial opinions and lower court rulings limiting the administrative state, labor law observers said.

“Loper Bright is a symptom of the hostility toward agencies, not the cause of it,” said Jeffrey Hirsch, a law professor at the University of North Carolina and a former NLRB appellate attorney.

While Loper Bright ended the Chevron doctrine’s requirement for courts to yield to agency interpretations of ambiguous laws, the NLRB had received judicial deference under Supreme Court precedents predating Chevron by decades.

Continued deference to the NLRB based on Congress giving it the primary task of interpreting the National Labor Relations Act is consistent with Loper Bright emphasizing that some laws authorize agency discretion, the board has argued.

Yet some circuit courts have cited Loper Bright and ignored earlier precedent saying the NLRB’s take on labor law deserves special weight.

The Sixth Circuit recently relied on Loper Bright to reject the NLRB’s long-respected prerogative to set national labor policy by individual case decisions rather than rulemaking, a view that has the potential to spread to other circuit courts.

“We have no hesitation to check the Board when it exceeds its delegated authority, just as we have no hesitation to let stand decisions that adhere to the limits Congress imposed,” the two Republican-judge majority said in its ruling.