By Aron Solomon / For The Herald
On Oct. 9, the U.S. Supreme Court decided not to hear Boardman v. Inslee, a challenge to a Washington state law that protects against disclosure of personal information of in-home care providers but allows the state to provide this information to their union.
The law in issue is Initiative 1501, the Seniors and Vulnerable Individuals’ Safety and Financial Crimes Prevention Act. The Service Employees International Union (SEIU) pushed I-1501, which is essentially a gag law. While the messaging around the law is to protect senior citizens, though, in practice, it took information that has been public record and made it essentially proprietary information controlled by the SEIU, which spent close to $2 million to get I-1501 passed in 2016.
Since the new law gave SEIU a monopoly on the private information of state-paid home caregivers, The Freedom Foundation filed a lawsuit on behalf of these Washington care providers, including Bradley Boardman, who was doing outreach to union members to inform them that they had a choice in union membership.
As the National Review pointed out in 2016:
“To look into the facts is to discover that I-1501’s intent has nothing to do with protecting citizens, and everything to do with altering the Public Records Act to prevent the Freedom Foundation, a conservative think tank, from obtaining the membership list of the SEIU; and, specifically, from obtaining the names of members who serve as home care providers and informing them of their constitutional right to opt out of paying union fees.”
The Seattle Times, a liberal paper (as are all of the major Washington state dailies), urged voters to reject I-1501, which they clearly did not, with 70.8 percent of voters sending it into law:
“I-1501 is a Trojan horse. It’s being run by a deep-pocketed special-interest group that wants to weaken the state Public Records Act, reducing the people’s access to government records. Don’t be fooled by I-1501’s pitch to close scary loopholes and block the release of records that enable identity theft. There are no such loopholes. The state’s Public Records Act already gives sensitive records explicit protections.”
In a divided vote, the 9th Circuit Court of Appeals, viewed by critics as being just as liberal as the Seattle Times, affirmed the district court’s summary judgment in favor of Washington state defendants (Gov. Jay Inslee) and rejected the argument that I-1501 violates the First Amendment.
So, for those who believe that this incarnation of the Supreme Court is always, at an absolute minimum, going to follow its 6-3 conservative ideological composition, why did the court pass on reviewing Boardman v. Inslee?
The Freedom Foundation’s argument is perfect fodder for a conservative Supreme Court to grant certiorari:
“It’s crystal clear the union had no interest in providing a meaningful service to its membership. All it wanted was to choke off access to their contact information and suppress the plaintiffs’ First Amendment rights to express their views and inform their colleagues of their rights.”
They add:
“And the ballot measure SEIU created to cover its tracks is unconstitutional because it denies the Freedom Foundation and the plaintiffs the same information the union has access to solely on the basis of political ideology.”
If this really was a campaign to censor these caregivers, why wouldn’t the court take up the case? The answer is because this is a savvy Supreme Court, legally and politically. Pundits who fall into the trap of predicting what this court will hear are doing primarily themselves a disservice as this court is more difficult to pin down than we would have imagined on the day Justice Amy Coney Barrett made it a 6-3 majority.
In June, the New York Times observed that the newest justices were producing some unexpected results. Then, when the SCOTUS Blog stat pack was released for the October 2020 term it showed us some surprises we might not have predicted a year ago.
Ultimately, some unpredictable coalitions might mean that we actually have a 3-3-3 court, as this excellent Weiss piece pointed out. What we definitely don’t have is a Supreme Court that is easy to characterize or alliances that are yet written in stone, which may have played a role in the court’s decision to pass on Boardman.
Aron Solomon is the chief legal analyst for Esquire Digital and editor of Today’s Esquire. He has taught entrepreneurship at McGill University and the University of Pennsylvania, Solomon has been featured in CBS News, TechCrunch, The Hill, BuzzFeed, Fortune, Venture Beat, The Independent, Yahoo!, ABA Journal, Law.com, The Boston Globe, and other publications.
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