SCOTUS Turns Down Fired NLRB Member Who Argued She Deserved Judge-Like ‘Protections’ for ‘Unpopular Decisions’

The U.S. Supreme Court turned down a fired National Labor Relations Board (NLRB) member’s last-ditch bid to save her job, handing a win to the DOJ and President Donald Trump’s purge of former President Joe Biden’s appointees.

After the high court’s June decision in Trump v. Slaughter, in which the justices recognized Trump’s broad authority to fire FTC Commissioner Rebecca Kelly Slaughter, Gwynne Wilcox filed a petition for a writ of certiorari challenging a causeless firing.

Wilcox argued that she deserved Article III judge-like “protections” from being summarily ousted for “unpopular decisions.” In her June petition, she asserted that the NLRB’s “five-member Board is structured like an independent court in both form and function, with members acting as a panel of appellate judges, issuing mostly unanimous decisions by applying federal labor law to the record in the cases that come before it.”

“In disregard of the NLRB’s removal protections, President Trump removed petitioner Gwynne A. Wilcox from her role as a member of the Board without notice, a hearing, or cause,” the petition said, noting Wilcox’s “resulting case against the President has already come before this Court twice before.”

This time, Wilcox argued the justices had to take up the case because a post-Slaughter world left the NLRB “under a cloud of constitutional uncertainty,” a situation the petition called “untenable.”

“Every year, the Board decides hundreds of disputes brought by employers, employees, and unions. To leave its status under Slaughter unresolved would cast those decisions into doubt, depriving the agency’s stakeholders, and the agency itself, of the certainty they urgently need,” court documents said.

The DOJ and U.S. Solicitor General D. John Sauer countered that “Slaughter control[led] this case.” In their view, Trump can remove NLRB members “at will” because the agency wields “considerable executive power,” just like the FTC.

“While that alone establishes that the President must be able to remove NLRB members at will, the NLRB also has ‘the power to promulgate substantive rules that carry the force of law,'” the DOJ’s opposing brief said, again citing the Slaughter case. “The power to issue such rules ‘is executive through and through.'”

On Monday, the justices denied Wilcox’s petition without explanation.