NLRB v. Noel Canning Tests the Limits of Judicial Memory: Leon Higginbotham, Spottswood Robinson and David Rabinvitz Rendered Illegitimate

Victor Williams, The Catholic University of America, Columbus School of Law


The Supreme Court’s NLRB v. Noel Canning ruling, which was ostensibly based on “historical practice,” has passed its first anniversary. The high court’s conjuring of a 3-day Senate recess minimum conjoined with a “presumptive 10-day” Senate recess rule continues to be analyzed. The practical effects of the revocations of Barack Obama’s 2012 National Labor Relations Board (NLRB) recess appointments continue to impact. However, Noel Canning’s additional revocations of Lyndon Johnson’s 1964 judicial recess appointments of labor-rights champion David Rabinovitz and civil-rights legends Leon Higginbotham, Jr. and Spottswood Robinson III have gone unnoticed. The three judicial commissions, signed by President Johnson during an eight-day intersession recess of the 88th Senate, were “rendered illegitimate” for failing Steven Breyer’s made-up “presumptive 10-day” recess rule. The NLRB’s “invalid members” were held to have issued an “invalid order” to the Noel Canning Company; so too did these three “invalid” judges issue many “invalid” decisions, orders, and judgments while pretending to be federal judges.

This is of some significant consequence. In a 2004 analysis of court challenges to recess appointed federal judges, Professor Edward Hartnett explained: “To conclude that recess appointments to Article III courts are unconstitutional would mean that [the president] making the appointments violated the Constitution. It would also mean that every one of those judges did so as well.” Noel Canning forever tarnished the judicial legacies of the famed Leon Higginbotham and Spottswood Robinson and cancelled the judicial career of David Rabinovitz, best known in the organized-labor community.