U.S. Supreme Court begins 2021-2022 term with 15 petitions to review public-sector union cases

The Supreme Court’s new term begins on Monday, Oct. 4. As of Oct. 1, appellants have filed petitions for writs of certiorari—requests for the Supreme Court to review a lower court’s ruling—in 15 of the public-sector union cases Ballotpedia is currently tracking. Next, the Supreme Court will decide whether it will hear these cases.

On Sept. 27, the court held its first conference for the term. Often called the “long conference,” this is when the court reviews outstanding petitions filed during the previous term or during the summer. The court will release the order list for cases considered during this conference at 9:30 a.m. on Monday, Oct. 4. Thirteen of the 15 petitions were distributed to the justices for this conference.

The Supreme Court receives around 7,000 to 8,000 petitions every year. During its past five terms, the court has agreed to hear an average of 71 cases per term.

Since the Supreme Court’s 2018 ruling in Janus v. AFSCME, Ballotpedia has tracked close to 150 lawsuits in federal and state courts, 33 of which have been appealed to the Supreme Court. So far, the court has not heard any of these petitions. During its 2020-2021 term, the court denied 12 petitions. During its 2019-2020 term, it declined to hear four, and during its 2018-2019 term, it declined to hear two.

Petitions pending for the 2021-2022 term

The following 15 petitions are currently pending before the U.S. Supreme Court:

*Seidemann v. Professional Staff Congress*	Appealed from the Second Circuit. Original complaint: Oct. 24, 2018Appellate ruling: Jan. 11, 2021Docketed June 10, 2021. Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Whether the proper remedy for the collection of an illegal fee is refund or restitution, regardless of the purported good faith of the fee collector.”“Whether this Court’s application of a rule of federal law to the parties before it requires every court to give retroactive effect to that decision.”“Whether 42 U.S.C. 1983 provides a good-faith defense for private entities who violate private rights if the private entities acted under color of a law before it was held unconstitutional.”Question presented in the respondents’ brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), even though such fees were authorized by state law and constitutional under then-controlling Supreme Court precedent.”
*Solomon v. AFSCME District Council 37*	Appealed from the Second Circuit.Original complaint: July 23, 2019Appellate ruling: March 10, 2021Docketed Aug. 10, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “The question presented is whether there is a categorical good-faith defense to 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional?”Question presented in the respondent’s brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), where such fees were authorized by state law and constitutional under this Court’s then-controlling precedent.”
*Fischer v. Murphy*	Appealed from the Third Circuit.Original complaint: Nov. 2, 2018Appellate ruling: Jan. 15, 2021Docketed June 16, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of that waiver is not against public policy?”“Do Petitioners have standing to challenge New Jersey Statutes Annotated Section 52:14-15.9e?Questions presented in the respondents’ brief: “Whether this Court has jurisdiction to consider a challenge to a statute brought against a state actor who has no role in enforcing the statute, where the statute did not injure Petitioners, and where a judgment in Petitioners’ favor would not benefit them.”“Whether the First Amendment is violated when dues are deducted from the pay of a public employee who voluntarily joined a union and affirmatively authorized union dues to be deducted for the relevant time period.”
*Rizzo-Rupon v. International Association of Machinists and Aerospace Workers*	Appealed from the Third Circuit. Original complaint: Jan. 8, 2019Appellate ruling: Sept. 23, 2020Docketed April 1, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Does this Court’s recent First Amendment agency-fee ban announced in Janus v. AFSCME … apply to matters involving private-sector employees governed by the auspices of the Railway Labor Act?”“Is there state action present when private-sector employees challenge agency fees under the RLA?”From the respondents’ brief: “This Court has previously refused to constitutionalize private sector collective bargaining. … The Petitioners have presented no sound arguments for second-guessing that decision.”
*Baisley v. International Association of Machinists and Aerospace Workers*	Appealed from the Fifth Circuit. Original complaint: May 16, 2019Appellate ruling: Dec. 22, 2020 Docketed May 26, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Whether opt-out procedures for collecting union fees for ideological and political activities violate the First Amendment or the Railway Labor Act.”From the respondent’s brief: “The premise of the petition is that [International Association of Machinists v. Street]’s longstanding construction of the RLA was unsettled by the Court’s recent decision in Janus v. AFSCME […]. However, Janus rests on the proposition that the First Amendment rights of public sector employees, as defined in that decision, are entirely distinct from the statutory rights of private sector employees under the RLA. There is, therefore, no conflict between the court of appeals’ decision in this case, which faithfully follows Street’s construction of the RLA, and any decision of this Court.”
*Taylor v. State Bar*	Appealed from the Sixth Circuit.Original complaint: Aug. 22, 2019 Appellate ruling: July 15, 2021Docketed Sept. 7, 2021.Not yet distributed. Question presented in the petition: “Prior to Janus, the Court had developed two lines of case law together, frequently alternating and each building on the other—the aforementioned public-sector employees and whether they could be forced to fund a union—and attorneys and whether they could be forced to join and fund an integrated bar association. After Janus held that such compulsion in the union context was impermissible, the question is: Can the State of Michigan compel practicing attorneys to fund an integrated bar association that takes policy positions, or does such a law fail exacting scrutiny and violate the attorneys’ First Amendment rights?” Respondents have not yet filed a brief in opposition.
*Bennett v. AFSCME*	Appealed from Seventh Circuit.Original complaint: April 26, 2019Appellate ruling: March 12, 2021Docketed May 18, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Whether an employee’s signature on a union membership card and dues deduction authorization by itself authorizes a government employer and public-sector union to withhold union dues or other fees from an employee’s wages consistent with this Court’s affirmative consent waiver requirement set forth in Janus?”Question presented in the respondents’ brief: “Whether a public employee who voluntarily joined a union, signed a written agreement to pay membership dues through payroll deduction for a one-year period, and received membership rights and benefits in return, suffered a violation of her First Amendment rights when her employer made the deductions that she affirmatively and unambiguously had authorized.”
*Leitch v. AFSCME*	Appealed from Seventh Circuit. Original complaint: May 1, 2019Appellate ruling: Feb. 3, 2021 Docketed July 9, 2021. Distributed for conference on Sept. 27, 2021.Question presented in the petition: “The question presented is whether there is a ‘good faith defense’ to 42 U.S.C. § 1983 that shields a defendant from damages liability for depriving citizens of their constitutional rights if the defendant acted under color of a law before it was held unconstitutional?”Question presented in respondent’s brief: “Whether a union can be held liable for retrospective monetary relief under 42 U.S.C. § 1983 for receiving and spending agency fees to pay for collective bargaining representation prior to Janus v. AFSCME Council 31, 138 S. Ct. 2448 (2018), where such fees were authorized by state law and constitutional under this Court’s then-controlling precedent.”
*Ocol v. Chicago Teachers Union*	Appealed from Seventh Circuit. Original complaint: Dec. 6, 2018Appellate ruling: Dec. 9, 2020Docketed May 13, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition: “Should the Court overrule [Minnesota State Board for Community Colleges v. Knight] and hold that the First Amendment prohibits States from forcing dissident public employees to accept a hostile union as their exclusive bargaining representative?” “Does 42 U.S.C. § 1983 provide a ‘good-faith defense’ to private entities who violate another’s constitutional rights before the courts have clearly established the illegality of their conduct and, if so, does this ‘good-faith defense’ allow a 42 U.S.C. § 1983 defendant who takes another person’s money or property in violation of the Constitution—but in reliance on a statute or court ruling that purported to authorize its conduct and is only later declared unconstitutional—to keep that money or property when the owner sues for its return?” Questions presented in the respondents’ brief: “Whether to overrule Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), in which this Court upheld the constitutionality of public-sector exclusive representation, the core principle on which labor-relations statutes across the country are based.”“Whether, contrary to the unanimous holdings of the lower courts, a union can be held liable to repay fair-share fees that were authorized by state law and then-controlling precedent prior to Janus v. American Federation of State, County & Municipal Employees, Council 31.”
*Troesch v. Chicago Teachers Union*	Appealed from Seventh Circuit.Original complaint: May 4, 2020Appellate ruling: April 15, 2021Docketed June 23, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Under the First Amendment, to seize payments for union speech from employees who provide notice they are nonmembers and object to supporting the union, do governments and unions need clear and compelling evidence those employees knowingly, intelligently, and voluntarily waived their First Amendment rights and that enforcement of the purported waiver is not against public policy?”Question presented in the respondent’s brief: “Whether public employees who voluntarily joined a union, signed written agreements to pay membership dues through payroll deduction for a specified time period, and received membership rights and benefits in return, suffered a violation of their First Amendment rights when their employer made the deductions that they affirmatively and unambiguously had authorized.”
*Brice v. California Faculty Association*	Appealed from the Ninth Circuit.Original complaint: Nov. 30, 2018 Appellate ruling: April 28, 2021Docketed Sept. 30, 2021. Not yet distributed. Question presented in the petition: “Whether an affirmative good faith defense denying damages to the victims of First Amendment wrongdoing is faithful to the language and purpose of 42 U.S.C. § 1983 or to the principles of ‘equality and fairness’ to all the parties involved?” Respondents have not yet filed a brief in opposition.
*Crowe v. Oregon State Bar*	Appealed from the Ninth Circuit.Original complaint: Dec. 13, 2018Appellate ruling: Feb. 26, 2021Docketed June 2, 2021. Distributed for conference on Sept. 27, 2021.Question presented in the petition: “Is the statute that compels attorneys to subsidize Oregon State Bar’s political and ideological speech subject to ‘exacting’ scrutiny?”Respondents waived the right to respond.
*Gruber v. Oregon State Bar*	Appealed from the Ninth Circuit. Original complaint: Aug. 29, 2018Appellate ruling: Feb. 26, 2021Docketed April 30, 2021. Distributed for conference on Sept. 27, 2021.Questions presented in the petition:“Did Keller v. State Bar of California … actually decide that an integrated bar may use mandatory dues for germane speech or was it dictum and therefore not binding precedent?”“If Keller did actually decide that an integrated bar may use mandatory dues for germane speech, should Keller be overruled to be consistent with Janus v. AFSCME …?” Respondents waived the right to respond.
*Boardman v. Inslee*	Appealed from Ninth Circuit.Original complaint: April 5, 2017Appellate ruling: Oct. 22, 2020Docketed March 24, 2021.Distributed for conference on Sept. 27, 2021.Question presented in the petition: “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.”Question presented in the respondents’ brief: “Did Washington voters violate the First Amendment by deciding that the personal contact information of certain caregivers should generally be exempt from disclosure under the State’s public records statute but can be shared in limited ways, including with the union statutorily obligated to represent the caregivers?”
*Hendrickson v. AFSCME Council 18*	Appealed from Tenth Circuit.Original complaint: Nov. 30, 2018Appellate ruling: March 26, 2021Docketed May 18, 2021.Distributed for conference on Sept. 27, 2021.Questions presented in the petition: “Whether a union can trap a public worker into paying dues without the ‘affirmative consent’ required by Janus v. AFSCME.”“Whether a union can moot a claim that it has violated Janus’ affirmative consent requirements simply by establishing opt-out windows too short to reach appellate review.”Questions presented in the respondents’ brief: “Whether a public employee who voluntarily joined a union, signed written agreements to pay membership dues via payroll deduction for a one-year period and received membership rights and benefits in return, suffered a violation of his First Amendment rights when his employer made the deductions that he affirmatively and unambiguously had authorized.”“Whether a public employee’s claim for prospective relief regarding union dues deductions is moot when those deductions have ceased, there is no likelihood the deductions will resume, and no exceptions to mootness apply.”

To view the current status of all cases distributed at the Sept. 27 conference, click here. To view past orders of the court by term year, click here.

About the Supreme Court

The U.S. Supreme Court is the highest judicial body in the country and leads the judicial branch of the federal government. The Supreme Court consists of nine justices who are nominated by the president and confirmed by the United States Senate.

President George H.W. Bush (R) appointed Justice Clarence Thomas to the court. President Bill Clinton (D) appointed Justice Stephen Breyer. President George W. Bush (R) appointed Chief Justice John Roberts and Justice Samuel Alito. President Barack Obama (D) appointed Justices Elena Kagan and Sonia Sotomayor. President Donald Trump (R) appointed Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett.

The Supreme Court’s yearly term begins on the first Monday in October and lasts until the first Monday in October the following year. The court generally releases the majority of its decisions in mid-June.

What we’re reading

The big picture

Number of relevant bills by state

We are currently tracking 99 pieces of legislation dealing with public-sector employee union policy. On the map below, a darker shade of green indicates a greater number of relevant bills. Click here for a complete list of all the bills we’re tracking.