Workers engaged in an economic strike in New Jersey are eligible
for public assistance through state welfare programs. Petitioners,
employers whose plants were struck, brought this suit for
injunctive and declaratory relief against such eligibility,
claiming that the regulations according benefits to striking
workers were invalid because they interfered with the federal labor
policy of free collective bargaining expressed in the Labor
Management Relations Act and with other federal policy set forth in
the Social Security Act. Before the case was tried, the labor
dispute was settled and the strike ended. The District Court,
rejecting the respondent union's contention that the case had been
mooted, dismissed the complaint on the grounds that Congress was
the appropriate forum for the claim and that the challenged laws
did not violate the Supremacy Clause. The Court of Appeals remanded
the case with instructions to vacate and dismiss for mootness.
To the extent that declaratory relief was sought,
the case or controversy requirement of Art. III, § 2, and the
Declaratory Judgment Act is completely satisfied. Pp. 416 U. S.
(a) Even though the case for an injunction dissolved with the
settlement of the strike and the strikers' return to work, the
petitioners and respondent state officials may still retain
sufficient interests and injury to justify declaratory relief. Pp.
416 U. S.
(b) The challenged governmental action is not contingent upon
executive discretion and has not ceased, but is a fixed and
definite policy which, by its continuing presence, casts what may
well be a substantial adverse effect on petitioners' interests.
Oil Workers Unions v. Missouri, 361 U.
; Harris v. Battle,
348 U.S. 803,
distinguished. Pp. 416 U. S.
(c) If judicial review were conditioned on the existence of an
economic strike, this case most certainly would be of the type
presenting an issue "capable of repetition, yet evading review,"
Southern Pac. Terminal Co. v. ICC, 219 U.
, 219 U. S. 515
It suffices that the litigant show an immediate and definite
Page 416 U. S. 116
action or policy that has adversely affected and continues to
affect a present interest, since to require the presence of an
active labor dispute would unduly tax the litigant by slighting
claims of adverse injury from actual or immediately threatened
governmental action, and since otherwise a state policy affecting a
collective bargaining arrangement but not involving a fine or other
penalty could be only rarely adjudicated, and the purposes of the
Declaratory Judgment Act would be frustrated. Pp. 416 U. S.
469 F.2d 911, reversed and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
DOUGLAS, BRENNAN, WHITE, and MARSHALL, JJ., joined. STEWART, J.,
filed a dissenting opinion, in which BURGER, C J., and POWELL and
REHNQUIST, JJ., joined, post,
p. 416 U. S.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In New Jersey, workers engaged in an economic strike are
eligible for public assistance through state welfare programs.
Employers whose plants were struck instituted
Page 416 U. S. 117
this suit for injunctive and declaratory relief against such
eligibility. Before the case was tried, the labor dispute was
settled and the strike came to an end. The question presented is
whether a "case" or "controversy" still exists, within the meaning
of Art. III, § 2, of the Constitution, and of the Declaratory
Judgment Act, 28 U.S.C. §§ 2201-2202.
A collective bargaining agreement between petitioners Super Tire
Engineering Company and Supercap Corporation, affiliated New Jersey
corporations, [Footnote 1
Teamsters Local Union No. 676, the certified collective bargaining
representative for the two corporations' production and maintenance
employees, expired on May 14, 1971. Because a new agreement had not
as yet been reached, the employees promptly went out on strike.
Some four weeks later, with the strike continuing, the two
corporations, and their president and chief executive officer filed
the present suit in the United States District Court for the
District of New Jersey against various New Jersey officials.
The complaint alleged that many of the striking employees had
received and would continue to receive public
Page 416 U. S. 118
assistance through two New Jersey public welfare programs,
] pursuant to
regulations issued and administered by the named defendants. The
petitioners sought a declaration that these interpretive
regulations, [Footnote 4
Page 416 U. S. 119
benefits to striking workers, were null and void because they
constituted an interference with the federal labor policy of free
collective bargaining expressed in the Labor Management Relations
Act, 1947, 29 U.S.C. § 141 et seq.,
and with other federal
policy pronounced in provisions of the Social Security Act of 1935,
42 U.S.C. §§ 602(a)(8)(C), 606(e)(1), and
607(b)(1)(B). [Footnote 5
petitioners also sought injunctive relief against the New Jersey
welfare administrators' making public funds available to labor
union members engaged in the strike.
Page 416 U. S. 120
With their complaint, the petitioners filed a motion for a
preliminary injunction. The supporting affidavit by the individual
petitioner recited the expiration of the collective bargaining
agreement, the failure of the parties to reach a new agreement, the
commencement and continuation of the strike, the application by
many of the strikers for state welfare benefits, and their receipt
of such benefits from the beginning of the strike to the date of
the affidavit. The affiant further stated that the availability of
these benefits interfered with and infringed upon free collective
bargaining as guaranteed by Congress, and "hardened the resolve of
the said strikers to remain out of work in support of their
bargaining demands," App. 32, and, in addition, that
"the current strike will undoubtedly be of longer duration than
would have otherwise been the case; that the impact of the grant of
welfare benefits and public assistance to the strikers involved has
resulted in the State of New Jersey subsidizing one party to the
current labor dispute; and that such subsidization by the State has
resulted in upsetting the economic balance between employer and
employees otherwise obtained in such a labor dispute."
At the hearing held on June 24 on the motion for preliminary
injunction, the union, now a respondent here, was permitted to
intervene. App. 37. Counsel for the union contended that "this
entire matter . . . has been mooted" because "these employees voted
to return to work and are scheduled to return to work tomorrow
morning." [Footnote 6
] App. 39.
The District Court, nonetheless, proceeded
Page 416 U. S. 121
to the merits of the dispute and, on the basis of the holding in
ITT Lamp Division v. Minter,
435 F.2d 989 (CA1 1970),
402 U.S. 933 (1971), ruled that the
appropriate forum for the petitioners' claim was the Congress, and
that the New Jersey practice of according aid to striking workers
was not violative of the Supremacy Clause of the Constitution. The
court denied the motion for preliminary injunction and dismissed
the complaint. App. 45-46. On appeal, the United States Court of
Appeals for the Third Circuit, by a divided vote, did not reach the
merits, but remanded the case with instructions to vacate and
dismiss for mootness. 469 F.2d 911, 922 (1972). We granted
certiorari to consider the mootness issue. 414 U.S. 817 (1973).
The respondent union invites us to conclude that this
controversy between the petitioners and the State became moot when
the particular economic strike terminated upon the execution of the
new collective bargaining agreement and the return of the strikers
to work in late June. That conclusion, however, is appropriate with
respect to only one aspect of the lawsuit, that is, the request for
injunctive relief made in the context of official state action
during the pendency of the strike.
The petitioners here have sought, from the very beginning,
declaratory relief as well as an injunction. Clearly, the District
"the duty to decide the appropriateness and the merits of the
declaratory request irrespective of its conclusion as to the
propriety of the issuance of the injunction."
Zwickler v. Koota, 389 U. S. 241
389 U. S. 254
(1967); Roe v. Wade, 410 U. S. 113
410 U. S. 166
(1973); Steffel v. Thompson, 415 U.
, 415 U. S.
-469 (1974). Thus, even though the case for an
injunction dissolved with the subsequent settlement of the strike
and the strikers'
Page 416 U. S. 122
return to work, the parties to the principal controversy, that
is, the corporate petitioners and the New Jersey officials, may
still retain sufficient interests and injury as to justify the
award of declaratory relief. The question is
"whether the facts alleged, under all the circumstances, show
that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to
warrant the issuance of a declaratory judgment."
Maryland Casualty Co. v. Pacific Coal Oil Co.,
312 U. S. 270
312 U. S. 273
(1941). And since this case involves governmental action, we must
ponder the broader consideration whether the short-term nature of
that action makes the issues presented here "capable of repetition,
yet evading review," so that petitioners are adversely affected by
government "without a chance of redress." Southern Pac.
Terminal Co. v. ICC, 219 U. S. 498
219 U. S. 515
A. We hold that the facts here provide full and complete
satisfaction of the requirement of the Constitution's Art. III, §
2, and the Declaratory Judgment Act, that a case or controversy
exists between the parties. Unlike the situations that prevailed in
Oil Workers Unions v. Missouri, 361 U.
(1960), on which the Court of Appeals' majority
chiefly relied, and in Harris v. Battle,
348 U.S. 803
(1954), the challenged governmental activity in the present case is
not contingent, has not evaporated or disappeared, and, by its
continuing and brooding presence, casts what may well be a
substantial adverse effect on the interests of the petitioning
In both Harris
and Oil Workers,
statute authorized the Governor to take immediate possession of a
public utility in the event of a strike or work stoppage that
interfered with the public interest. The seizure was not automatic
for every public utility labor dispute.
Page 416 U. S. 123
It took effect only upon the exercise of the Governor's
discretion. In each case, the Court held the controversy to be moot
because both the seizure and the strike had terminated prior to the
time the case reached this Court. The governmental action
challenged was the authority to seize the public utility, and it
was clear that a seizure would not recur except in circumstances
where (a) there was another strike or stoppage, and (b) in the
judgment of the Governor, the public interest required it. The
question was thus posed in a situation where the threat of
governmental action was two steps removed from reality. This made
the recurrence of a seizure so remote and speculative that there
was no tangible prejudice to the existing interests of the parties
and, therefore, there was a "want of a subject matter" on which any
judgment of this Court could operate. Oil Workers,
U.S. at 361 U. S. 371
This was particularly apparent in Oil Workers
although the union had sought both declaratory and injunctive
relief, the decision the Court was asked to review "upheld only the
validity of an injunction, an injunction that expired by its own
terms more than three years ago." Ibid.
The present case has a decidedly different posture. As in
and Oil Workers,
the strike here was
settled before the litigation reached this Court. But, unlike those
cases, the challenged governmental action has not ceased. The New
Jersey governmental action does not rest on the distant
contingencies of another strike and the discretionary act of an
official. [Footnote 7
New Jersey has declared positively that able-bodied striking
workers who are engaged, individually and collectively, in an
Page 416 U. S. 124
economic dispute with their employer are eligible for economic
benefits. This policy is fixed and definite. It is not contingent
upon executive discretion. [Footnote 8
] Employees know that, if they go out on strike,
public funds are available. The petitioners' claim is that this
eligibility affects the collective bargaining relationship, both in
the context of a live labor dispute when a collective bargaining
agreement is in process of formulation, and in the ongoing
collective relationship, so that the economic balance between labor
and management, carefully formulated and preserved by Congress in
the federal labor statutes, is altered by the State's beneficent
policy toward strikers. It cannot be doubted that the availability
of state welfare assistance for striking workers in New Jersey
pervades every work stoppage, affects every existing collective
bargaining agreement, and is a factor lurking in the background of
every incipient labor contract. The question, of course, is whether
Congress, explicitly or implicitly, has ruled out such assistance
in its calculus of laws regulating labor-management disputes. In
this sense, petitioners allege a colorable claim of injury from an
extant and fixed policy directive of the State of New Jersey. That
claim deserves a hearing.
The decision in Bus Employees v. Missouri, 374 U. S.
(1963), is not to the contrary. In that case, the
Court adjudicated the merits of the same statutory scheme that had
been challenged earlier in Oil Workers.
It reached the
merits even though the Governor had terminated the seizure of the
public utility. His executive
Page 416 U. S. 125
order, however, recited that the labor dispute "remains
unresolved." The Court's rationale was that, since the labor
dispute had not ended,
"[t]here thus exists in the present case not merely the
speculative possibility of invocation of the King-Thompson Act in
some future labor dispute, but the presence of an existing
unresolved dispute which continues subject to all the provisions of
the Act. Cf. Southern Pac. Terminal Co. v. Interstate Commerce
Comm'n, 219 U. S. 498
, 219 U. S.
-516; United States v. W. T. Grant Co.,
345 U. S.
, 345 U. S. 632
374 U.S. at 374 U. S. 78
The existence of the strike was important in that it rendered
concrete the likelihood of state action prejudicial to the
interests of the union. It was the remoteness of the threat of
state action that convinced the Court in Oil Workers
hold that case moot. In the case now before us, the state action is
not at all contingent. Under the petitioners' view of the case, it
is immediately and directly injurious to the corporate petitioners'
economic positions. Where such state action or its imminence
adversely affects the status of private parties, the courts should
be available to render appropriate relief and judgments affecting
the parties' rights and interests.
B. If we were to condition our review on the existence of an
economic strike, this case most certainly would be of the type
presenting an issue "capable of repetition, yet evading review."
Southern Pac. Terminal Co. v. ICC,
219 U.S. at
219 U. S. 515
Grinnell Corp. v. Hackett,
475 F.2d 449 (CA1), cert.
414 U.S. 858 and 879 (1973); ITT Lamp Division v.
435 F.2d at 991. To require the presence of an active
and live labor dispute would tax the litigant too much by
arbitrarily slighting claims of adverse injury from concrete
governmental action (or the immediate threat thereof). It is
sufficient, therefore, that the litigant show the existence of an
immediate and definite governmental
Page 416 U. S. 126
action or policy that has adversely affected and continues to
affect a present interest. Otherwise, a state policy affecting a
collective bargaining arrangement, except one involving a fine or
other penalty, could be adjudicated only rarely, and the purposes
of the Declaratory Judgment Act would be frustrated.
Certainly, the pregnant appellants in Roe v. Wade,
and in Doe v. Bolton, 410 U.
(1973), had long since outlasted their
pregnancies by the time their cases reached this Court. Yet we had
no difficulty in rejecting suggestions of mootness. 410 U.S. at
410 U. S. 125
and 187. Similar and consistent results were reached in Storer
v. Brown, 415 U. S. 724
415 U. S. 737
n. 8 (1974); Rosario v. Rockefeller, 410 U.
, 410 U. S. 756
n. 5 (1973); Dunn v. Blumstein, 405 U.
, 405 U. S. 333
n. 2 (1972); and Moore v. Ogilvie, 394 U.
, 394 U. S. 816
(1969), cases concerning various challenges to state election laws.
The important ingredient in these cases was governmental action
directly affecting, and continuing to affect, the behavior of
citizens in our society.
The issues here are no different. Economic strikes are of
comparatively short duration. There are exceptions, of course.
See, for example, Local 8, UAW v. NLRB,
107, 300 F.2d 699, cert. denied sub nom. Kohler Co. v. Local
370 U.S. 911 (1962). But the great majority of
economic strikes do not last long enough for complete judicial
review of the controversies they engender. U.S. Dept. of Labor,
Bureau of Labor Statistics, Analysis of Work Stoppages 1971, Table
A-3, p. 16 (1973). A strike that lasts six weeks, as this one did,
may seem long, but its termination, like pregnancy at nine months
and elections spaced at year-long or biennial intervals, should not
preclude challenge to state policies that have had their impact and
that continue in force, unabated and unreviewed.
Page 416 U. S. 127
The judiciary must not close the door to the resolution of the
important questions these concrete disputes present.
The judgment of the Court of Appeals is reversed, and the case
is remanded for further proceedings on the merits of the
It is so ordered.
Super Tire Engineering Company is engaged in the business of
truck tire sales and service and the manufacture and sale of
industrial polyurethane tires and wheels. Supercap Corporation is
engaged in the business of truck tire recapping and repairing.
The named defendants were Lloyd W. McCorkle, Commissioner of the
Department of Institutions and Agencies of the State of New Jersey;
Irving J. Engelman, Director of the Division of Public Welfare of
the Department of Institutions and Agencies of the State of New
Jersey; Fred L. Streng, Director of the Camden County, New Jersey,
Welfare Board; and Juanita E. Dicks, Welfare Director of the
Municipal Welfare Department of the City of Camden, New Jersey.
The General Public Assistance Law, N.J.Stat.Ann. § 44:8-107
(Supp. 1973-1974), a state program, and the
Assistance for Dependent Children Law (ADC), N.J.Stat.Ann. §
44:10-1 et seq.
(Supp. 1973-1974), a federal-state program
created by § 402 of the Social Security Act, as amended, 42 U.S.C.
Effective June 30, 1971, New Jersey elected no longer to
participate in the unemployed parent segment of the AFDC program,
and enacted, in its place, the Assistance to Families of the
Working Poor program, N.J.Stat.Ann. § 44:13-1 et seq.
The Regulations (M.A. 1.006, revised Mar. 1957), issued by the
New Jersey Department of Institutions and Agencies under the
General Public Assistance Law, provided in pertinent part:
"A. Citation of Statute and Constitution"
"Chapter 156, p. L.1947 (R.S. 44:108) defines reimbursable
public assistance as 'assistance rendered to needy persons not
otherwise provided for under the laws of this State, where such
persons are willing to work but are unable to secure employment due
either to physical disability or inability to find
"The Constitution of New Jersey 1947, Article I, paragraph 19,
guarantees that 'Persons in private employment shall have the right
to organize and bargain collectively.'"
"B. Interpretation and Policy"
"It may be inferred from the quoted section of the statute that
persons unwilling to work are ineligible for public assistance.
However, for purposes of public administration, the phrase
'unwilling to work' must be defined as objectively as
"* * * *"
". . . The Constitutional guarantee of the 'right to organize
and bargain collectively' implies the right of the individual to
participate in a bona fide
labor dispute as between the
employer and the collective bargaining unit by which the individual
is represented. Moreover, a 'strike,' when lawfully authorized and
conducted, is recognized as an inherent and lawful element of the
process of bargaining collectively and of resolving labor disputes.
Accordingly, when an individual is participating in a lawful
'strike,' he may not be considered merely because of such
participation, as refusing to work without just cause."
"Based on the foregoing statement of interpretation and policy,
the following regulations are established:"
"* * * *"
"4. No individual shall be presumed to be unwilling to work, or
to be wrongfully refusing to accept suitable employment, merely
because he is participating in a lawful labor dispute."
"5. An individual who is participating in a lawful labor
dispute, and who is needy, has the same right to apply for public
assistance, for himself and his dependents, as any other individual
who is needy."
"6. In the case of an applicant for public assistance who is
participating in a lawful labor dispute, there shall be an
investigation of need and other conditions of eligibility, and an
evaluation of income and resources, in the same way and to the same
extent as in all other cases. In such instances, 'strike benefits'
or other payments available to the individual from the labor union
or other source, shall be considered a resource and shall be
determined and accounted for."
The record is not clear as to the eligibility of strikers under
New Jersey's newly enacted program of Assistance to Families of the
Working Poor. Petitioners state that striking workers are eligible
for benefits under that program. Brief for Petitioners 4 n. 1. The
respondents concede this, as "a matter of administrative
application." Tr. of Oral Arg. 46.
The complaint also alleged that the inclusion of striking
workers in these programs was contrary to New Jersey law.
All the strikers returned to work by Monday, June 28, 1971, and
normal operations at the corporate petitioners' plants were then
Although the threat of seizure in Oil Workers
constituted a far more severe form of governmental action, going as
it did to cripple any strike, the features of that action were
inexorably contingent, serving to make it more remote and
It may not appropriately be argued that there is an element of
discretion present here in the making of the determination of
individual "need" for welfare benefits. That determination has no
measurable effect on the rights of the corporate petitioners.
Instead, it is the basic eligibility for assistance that allegedly
prejudices those petitioners' economic position.
MR. JUSTICE STEWART, with whom THE CHIEF JUSTICE, MR. JUSTICE
POWELL, and MR. JUSTICE REHNQUIST join, dissenting.
The Court today reverses the Court of Appeals and holds that
this case is not moot despite the fact that the underlying labor
dispute that gave rise to the petitioners' claims ended even before
the parties made their initial appearance in the District Court. I
think this holding ignores the limitations placed upon the federal
judiciary by Art. III of the Constitution and disregards the clear
teachings of prior cases. Accordingly, I dissent.
This Court has repeatedly recognized that the inability of the
"to review moot cases derives from the requirement of Art. III
of the Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy."
Liner v. Jafco, Inc., 375 U. S. 301
375 U. S. 306
n. 3. See also North Carolina v. Rice, 404 U.
, 404 U. S. 246
Powell v. McCormack, 395 U. S. 486
395 U. S. 496
n. 7; Sibron v. New York, 392 U. S.
, 392 U. S. 50
8. Since Art. III courts are precluded from issuing advisory
opinions, Hayburn's Case,
2 Dall. 409; Muskrat v. United States, 219 U.
, it necessarily follows that they are impotent
"to decide questions that cannot affect the rights of litigants in
the case before them." North Carolina v. Rice, supra,
404 U. S. 246
St. Pierre v. United States, 319 U. S.
, 319 U. S. 42
Page 416 U. S. 128
These broad constitutional principles, of course, provide no
more than the starting point, since the decision as to whether any
particular lawsuit is moot can be made only after analysis of the
precise factual situation of the parties involved. But, in my view,
our task in the present case is greatly simplified, for this Court
has had several occasions within the past 20 years to apply the
general principles of mootness to the specific facts of labor
disputes closely analogous to the one at hand.
The first of these cases was Harris v. Battle,
803, in which the issue was whether a Virginia statute that
permitted the state Governor to order that "possession" be taken of
a transit company whose employees were on strike was in conflict
with the National Labor Relations Act. The underlying labor dispute
was settled, and the seizure terminated before the case came to
trial, but the trial court nevertheless proceeded to decide the
merits of the controversy, finding the statute constitutional.
After the Virginia Supreme Court refused review, an appeal was
taken to this Court. In a brief per curiam opinion, this Court held
that the case was moot, and ordered the appeal dismissed.
In Oil Workers Unions v. Missouri, 361 U.
, we had occasion to explicate the holding of
Harris v. Battle
in the context of a challenge to
Missouri's King-Thompson Act, which allowed the Governor on behalf
of the State to take possession of and operate a privately owned
public utility affected by a work stoppage. n that case, the
underlying strike and seizure had terminated while the case was on
appeal to the Supreme Court of Missouri. Nonetheless, that court
considered the merits of the lawsuit,
Page 416 U. S. 129
holding the King-Thompson Act constitutional. We read Harris
as requiring that the case be held moot, since the
termination of both the strike and the seizure left "no actual
matters in controversy essential to the decision of the particular
case'" then before us. 361 U.S. at 361 U. S. 367,
quoting from United States v. Alaska S.S. Co.,
253 U. S. 113,
253 U. S.
The constitutionality of the King-Thompson Act was again at
issue in Bus Employees v. Missouri, 374 U. S.
. The strike and seizure in that case were still in
effect at the time of the decision of the Supreme Court of
Missouri, but, after the appellants' jurisdictional statement was
filed in this Court, the Governor of Missouri terminated the
outstanding seizure order. Consequently, the appellees argued that
the case had become moot, relying on Harris
We rejected the contention, noting that, in both
those cases, the underlying labor dispute had been settled by the
time the litigation reached this Court. In Bus Employees,
by contrast, the strike was still unresolved, and the appellants
were thus fully subject to the provisions of the King-Thompson Act.
Hence, we concluded that Harris
and Oil Workers
did not control, and we proceeded to decide the merits of the case,
holding the Missouri law to be in conflict with the National Labor
Relations Act, and thus invalid under the Supremacy Clause.
I think it is clear that the facts of the case before us serve
to bring it within the teaching of Harris
and outside the ambit of Bus Employees.
Here, as in Harris
and Oil Workers,
underlying work stoppage and the challenged governmental action --
the providing of welfare benefits to the petitioners' employees --
had ceased long before review was sought in this Court. Any view
that a federal court might express on the merits of the
petitioners' Supremacy Clause claims
Page 416 U. S. 130
would, therefore, amount to an advisory opinion, having no
effect on any "actual matters in controversy." As we noted in
such an undertaking would ignore a
"basic limitation upon the duty and function of the Court, and .
. . disregard principles of judicial administration long
established and repeatedly followed."
361 U.S. at 361 U. S.
The Court offers essentially two arguments aimed at
distinguishing this case from Harris
First, it says that the very existence of the New
Jersey welfare programs constitutes a continuing burden on the
petitioners' ability to engage in collective bargaining with the
respondent union. Secondly, the Court says that the underlying
controversy here is "capable of repetition, yet evading review,"
and thus comes within the rule of Southern Pac. Terminal Co. v.
ICC, 219 U. S. 498
219 U. S.
Similar arguments, however, were considered and rejected in both
and Oil Workers.
In each of those cases,
it was argued that the Southern Pacific
a finding of mootness, and it was also argued that the case was not
moot, because of the continuing threat of state seizure of public
utilities in future labor disputes. The Court's summary dismissal
of the Harris
appeal necessarily rejected both of these
contentions, and we explicitly adhered to that holding in Oil
], it was urged that the controversy was not
moot, because of the continuing threat of state seizure in future
labor disputes. It was argued that the State's abandonment of
alleged unconstitutional activity after its objective had been
accomplished should not be permitted to forestall decision as to
the validity of the statute under which the State had purported to
act. It was contended that the situation was akin to cases like
Southern Pac. Terminal Co. v. Interstate
Page 416 U. S. 131
U.S. 498, 219 U. S. 514
finding that the controversy was moot, the Court necessarily
rejected all these contentions. 348 U.S. 803. Upon the authority of
that decision, the same contentions must be rejected in the present
case. See also Barker Co. v. Painters Union, 281 U. S.
; Commercial Cable Co. v. Burleson,
250 U. S.
361 U.S. at 361 U. S.
-369 (footnotes omitted).
I find no reason to depart from this holding in the case before
us. While it is not inconceivable that the petitioners' employees
will once again strike and perhaps once again become eligible for
future New Jersey welfare benefits, I find little to distinguish
that hypothetical situation from the "speculative possibility of
invocation of the King-Thompson Act in some future labor dispute"
] that was present in
And, even if it could be assumed that the
present controversy is "capable of repetition" within the meaning
of the Southern Pacific
test, I am less than confident
that the issues presented can truly be characterized as "evading
review." If nothing else, the Bus Employees
that even the most confident predictions about the future
unreviewability of specific legal controversies are often proved
inaccurate. Indeed, several courts of appeals have had the
opportunity to consider the precise Supremacy Clause issues now
raised by the petitioners in the context of ongoing labor disputes.
] Given that
Page 416 U. S. 132
cannot conclude that it is permissible to resolve these
important questions in a case where their resolution will have no
direct effect on the parties to the litigation.
The argument that eligibility of strikers for future New Jersey
welfare benefits might affect the "ongoing" process of collective
bargaining fares no better in the light of the Oil Workers
decision. The continued existence of the King-Thompson Act in
arguably had a most significant effect on the
employees' collective bargaining ability, since it threatened to
deprive them of their principal economic weapon, the capacity to
strike. Yet the Court found the continuing threat of seizure in
future labor disputes to be insufficient to save the Oil
case from mootness. No different weight should be
accorded to the petitioners' argument that the possibility of
strikers receiving welfare benefits will make future work stoppages
less onerous for their employees. [Footnote 2/4
Page 416 U. S. 133
In short, I,think that this case is completely controlled by
and Oil Workers.
The doctrine of mootness
is already a difficult and complex one, and I think that the Court
today muddies the waters further by straining unnecessarily to
distinguish and limit some of the few clear precedents available to
For these reasons, I would affirm the judgment of the Court of
Diamond, Federal Jurisdiction to Decide
Moot Cases, 94 U.Pa.L.Rev. 125; Note, Mootness on Appeal in the
Supreme Court, 83 Harv.L.Rev. 1672; Note, Mootness and Ripeness:
The Postman Always Rings Twice, 65 Col.L.Rev. 867; Note, Cases Moot
on Appeal: A Limit on the Judicial Power, 103 U.Pa.L.Rev. 772.
Bus Employees v. Missouri, 374 U. S.
, 374 U. S.
In ITT Lamp Division v. Minter,
435 F.2d 989 (CA1), two
cases were consolidated on appeal; one of them involved an ongoing
strike. Similarly, the underlying labor dispute in Russo v.
453 F.2d 548 (CA2), was still in effect at the time of
the Court of Appeals' decision, although the appellate court did
not reach the employers' Supremacy Clause arguments, since it found
that the District Court lacked jurisdiction to hear the suit, which
had been brought by strikers to compel the payment of welfare
The Court characterizes the governmental action challenged in
as more "remote" and
"contingent" than the New Jersey policy at hand. For mootness
purposes, I think that this is a distinction without a difference.
For one thing, New Jersey does not automatically extend welfare
benefits to striking workers; it merely makes them eligible to
receive such benefits, provided that they meet all other
appropriate criteria. Thus, for the challenged governmental action
here to recur, at least two things must happen: the respondent
union must again call a strike, and the workers must satisfy the
standards of need that may then be set forth in the New Jersey
welfare statutes. If the threat of seizure in Oil Workers
was viewed as "contingent" in nature, no different conclusion can
be reached here.
Moreover, as the Court concedes, ante
at 416 U. S. 123
n. 7, the threat of seizure in Oil Workers
involved "a far
more severe form" of governmental interference in the collective
bargaining process than does the New Jersey policy of making
strikers eligible for welfare benefits, since invocation of the
Missouri statute served to cripple any strike completely. Thus,
even if the governmental action involved in Oil Workers
viewed as more "contingent" than in the present case, I cannot
understand how its effect on the collective bargaining process can
be characterized as less serious.