The 3-3-3 Court Returns on the Second Tuesday in October

Justices Thomas, Alito, and Gorsuch dissent from denial of certiorari from Paul Clement's public-sector union case.


Today, the Court issued its order list. There were no cert grants. Only one cert denial noted any dissents.

20-1334 BOARDMAN, BRADLEY, ET AL. V. INSLEE, GOV. OF WA, ET AL. The petition for a writ of certiorari is denied. Justice Thomas, Justice Alito, and Justice Gorsuch would grant the petition for a writ of certiorari.

Paul Clement filed the petition back in March 2021. It presents the following question:

Whether a law that skews the debate over the value of public-sector unions and undermines public-sector employees' opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.

The case was first distributed for the 5/13/2021 conference. At that point, a response was requested by June 1. Washington asked for an extension till July 1, which pushed the case into the long conference. The case was relisted after the long conference, and distributed for the 10/8/21 conference. And, today the case was denied, without a published dissental.

By signaling three dissents from the denial of cert, Justices Thomas, Alito, and Gorsuch shined a light on Justices Kavanaugh and Barrett. Had either of them given a fourth vote, the case would have been reviewed.

Justice Kennedy was very eager to rule in Janus. Justice Kavanaugh may not be eager to hear the follow-up cases. Ditto for Justice Barrett. And CJ Roberts has enough to worry about this term. The 3-3-3 Court has already made an appearance this term.

The Court also denied cert in Safehouse v. Department of Justice. This case presented a commerce clause challenge to federal prohibitions on drug safe houses. There was no noted dissents.

NEXT: School Board Seeks to Prevent Web Posting of Materials It Released to Fulfill FOI Request

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  1. “skews the debate over the value of public-sector unions and undermines public-sector employees’ opt-out rights by giving incumbent unions exclusive access to information necessary to communicate with public-sector employees is consistent with the First Amendment.”

    Jesus Christ, as with most things that become more and more expansive the 1st is becoming more and more silly. “I can’t exercise my right if someone has put more info out there than on the other side.”

    1. Your whine doesn’t match your quote.

    2. They didn’t just give the information to the union; They would deny it to anyone else. Thus making sure that only one side of the argument could be delivered to the employees without absurd expense in finding them.

      1. That’s actually false:

        I-1501 includes the following exemptions
        allowing limited release of personal information:
        • concerning caregivers who have been
        accused of or disciplined for abuse, neglect,
        or other acts of professional misconduct;
        • for bona fide news organizations seeking to
        investigate a specific public employee’s
        • to a governmental body, including agencies
        supporting vulnerable adults;
        • as part of a judicial or quasi-judicial
        • as necessary for the provision of fringe
        benefits to public employees;
        • as required by federal law;
        • as required by contract between the state
        and a third party;
        • to a person or entity under contract with the
        state to manage, administer, or provide
        services to vulnerable residents;
        • to a person or entity under contract with the
        state to engage in research or analysis about
        state services for vulnerable residents; or
        • to a certified collective bargaining representative recognized pursuant to state law

        1. In other words, it does NOT allow an exception for the specific purpose of opposing the union. It is indeed a deliberate thumb on the scale.

          But, yes, “anybody else” was an exaggeration.

          1. Why should it allow them an exemption to look at people’s private info? The union has actual statutory and contractual duties to represent people, this may include duties of fair representation to non-members.. The anti-union lobby, by contrast, has no such legal duty to anyone.

            1. BRADLEY BOARDMAN, a Washington Individual
              Provider, et al.,

              …are the plaintiffs, not the “anti-union lobby”.

              Their interest in not suffering the exactions of an entity they do not wish and do not trust to represent their interests is obvious.

              1. “ With support from petitioner Freedom Foundation, a Washington non-profit organization, Boardman, Thurber, and Benn also sought to share their views with other in-home care providers. Boardman sought “to inform other individual providers of their right to opt out of paying agency fees to SEIU 775,” (Pet. at 5)

                So yes they are supported by an anti-union lobby that wants this information to spread the word you don’t need to pay agency fees, thus damaging these unions

                1. Thus benefiting the employees.

                  1. To amplify, if the union must keep employees from being exposed to the case against paying the agency fees, in order to keep employees from opting out of paying them, we must presume that not paying them is in the employees’ interest, at least as they see it. (And who else’s opinion of the employees’ interest is relevant, besides the employees’?)

                2. So yes they are supported by an anti-union lobby…

                  Which no one denied. This does not rehabilitate your clear implication that it was the interests of the lobby in the information that was the basis of the suit.

                  Learn to accept it when someone points out that you are indisputably in error. Lame attempts to deflect are not a good look.

  2. Just a little more background to the Question:

    Petitioners are individual in-home care providers
    in Washington state who are situated identically to
    the quasi-public employees in Harris v. Quinn, 573
    U.S. 616 (2014), and a non-profit organization
    dedicated to ensuring that workers understand their
    constitutional right not to subsidize union speech.
    After Harris, petitioners communicated with other
    providers to spread that message and to encourage
    them to oust one of their incumbent unions. Those
    efforts were initially quite successful, with large
    numbers of providers exercising their opt-out rights.
    But those efforts depended on access to state lists of
    providers and their contact information. Because
    providers are widely dispersed and have high turnover
    rates, only the state, which facilitates their payment,
    has that information. Even the incumbent unions
    depend on the state for that critical speech-enabling
    information. Frustrated by petitioners’ success, the
    incumbent unions worked to convert the state’s
    monopoly over that information into a duopoly. They
    drafted and bankrolled a ballot initiative amending
    Washington’s public-records laws to deny virtually
    everyone but the incumbent unions access to that
    information. Voters approved that initiative, and,
    over a 40-page dissent, the Ninth Circuit upheld it.

  3. “The Court also denied cert in Safehouse v. Department of Justice. This case presented a commerce clause challenge to federal prohibitions on drug safe houses.”

    Incorrect. The case—at least at the cert stage—did not present such a challenge. It presented an issue of statutory interpretation. The only mention of the CC was at the end in passing as a reason to interpret the statute narrowly.

    1. In other words, it seems to me, the CASE, as opposed to the stage, presented a commerce clause challenge to the current interpretation of the statute. Am I missing something?

      1. Yes, you’re missing something. If someone mentions a cert petition being denied, and references an issue the case “presented” then anyone with a room temperature or higher IQ—especially someone who visits this blog—would obviously understand that to mean the issue presented in the denied petition. Using past tense in “presented” doesn’t change that. Once cert’s denied, the case is over for all practical purposes (barring a rehearing petition, which is rarely done and even more rarely granted). So at that point, the issue in the QP is no longer ongoing, and past tense is appropriate. Without any further context, no one would rationally think “presented” meant an issue that wasn’t even live when the cert petition was still pending—as opposed to the most recent issue that was addressed (emphasis on past tense) in the denied petition.

        You’re really in denial if you think this was anything besides another example of sloppy research and careless language by Blackman; he’s sort of got a reputation for that. If you want to defend every instance of him doing that, I just hope you have lots of time on your hands!

        1. Actually, no one would imagine that Blackman was wrong to say what he did except some loon like you with an axe to grind who will produce a great wall of text to unconvincingly argue about nits.

          1. Thanks for admitting it was a mistake (a “nit”)! My work here is done then. Until we meet again. Which, given the frequency of Blackman’s cockups, I predict will be very soon.

            1. Wow. I’m impressed. Gandydancer has never admitted he was wrong to me. He’s been wrong, of course (constantly). But he’s never admitted it.

              1. I’ve noticed that you are easily impressed by nonsense.

            2. The “nit” in this case is an imaginary one, needless (I thought) to say.

              1. …sorry to deprive you of your imaginary triumph. Way it is, though.

  4. I get framing an issue in a way that favors your side, but I have almost no clue what this case is actually about based on that issue statement.

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