The Volokh Conspiracy

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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.