The U.S. Supreme Court case New Process Steel, L.P. v. National Labor Relations Board (2009) revolved around the issue of whether decisions made by a two-member quorum of the five-member National Labor Relations Board (NLRB) were legally valid under Section 3(b) of the National Labor Relations Act, which allows for delegation of powers to a three-member group but requires at least three members for action to be taken. The NLRB had continued making rulings with only two active members after its membership fell below three due to expired terms and unfilled vacancies in December 2007. New Process Steel challenged an adverse ruling from this period on grounds that it was invalid because there weren't enough board members when it was issued. In June 2010, the Supreme Court ruled in favor of New Process Steel in a 5-4 decision, holding that Section 3(b) required at least three sitting members for any delegated authority to remain effective and thus invalidated nearly six hundred rulings made by the two-person NLRB between January 1st, 2008 and March 27th,2010.

In the dissenting opinion for New Process Steel, L.P. v. National Labor Relations Board (NLRB), Justice Kennedy argued that the majority's interpretation of Section 3(b) of the National Labor Relations Act was too narrow and failed to consider Congress' intent when it amended this section in 1947. He contended that Congress intended to allow a two-member quorum of a three-member group to act on behalf of the NLRB during vacancies, ensuring continuity in its operations. The majority's ruling would disrupt this continuity and could potentially paralyze the NLRB whenever there are fewer than three members available, which is contrary to what he believed was Congress’ intention behind amending Section 3(b). Furthermore, he pointed out that their decision ignored long-standing practice by both Democratic and Republican Boards over many years without any objection from Congress.