Scalia and Friedrichs

Supreme Court Justice Antonin Scalia died this past Saturday at the age of 79. The bulk of recent reports give the impression that his death means the end of the Friedrich’s case, but the full story is a bit more complicated.

The death of a sitting Supreme Court Justice is, of course, huge news, and this one in particular will have tremendous reverberations. It would be nice if we lived in a world where politics could be put aside for a short period following the passing of a public figure, but statements from Ted Cruz, Mitch McConnell, and others within hours of the Scalia’s death remind us that we don’t. And while it seems crass (regardless of one’s political views) to so quickly ask “how will this affect us?,” that horse is out of the barn and miles down the road. There’s been a lot written already about how Justice Scalia’s death will impact pending cases, so here’s a quick summary on what it means for public sector unions in particular.

It’s pretty much a given that, without Justice Scalia, the court will split 4 to 4 on the Friedrichs case. It has been largely reported that, in the event of a tie vote, the lower court ruling stands, which, in this case was the Ninth Circuit Court decision in favor of the California Teachers Association. In other words, if conventional wisdom is correct, the right of unions to collect agency (or “fair share”) fees will remain intact.

HOWEVER, as a number of articles have pointed out, rather than letting the lower court ruling stand, the Court could elect to re-hear arguments the following year. Tom Goldstein, publisher of the SCOTUSblog, thinks this is the most likely scenario for the close cases the court is hearing this session. If he is correct, then the selection of the next Supreme Court Justice will be crucial as Friedrichs and other close cases would be heard again once the court is back to nine justices.

Further, even if a tie vote does revert the case back to the Ninth Circuit Court decision, that isn’t the end of the story. It would be the end of the Friedrichs case itself, but at a meeting last fall one of NYSUT’s attorneys mentioned that there are a number of other similar cases working their way through the system. A reverted decision would mean that “the Supreme Court’s consideration of the case has no precedential value,” so once those other cases reach the Supreme Court, we will be back in exactly the same boat – depending on who is eventually confirmed as the ninth justice.

Republicans have vowed to block any nominee that Obama puts up so that Justice Scalia’s replacement will be selected by the next President. And although Democrats have argued that it is unprecedented and an abdication of Constitutional responsibilities for Republicans to obstruct in this manner, they can probably succeed.

Bottom line: Justice Antonin Scalia’s death almost certainly means a reprieve for public sector unions, but there is still a great deal of uncertainty about what will happen in the near future. 

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