March 29, 2016; Washington Post
In a vivid illustration of the effect Justice Antonin Scalia’s death will have on its decisions, the Supreme Court yesterday found itself in an even 4-4 split on Friedrichs v. California Teachers Association, a case that could have overturned the ability of public unions to charge nonunion public employees compulsory fees for collective bargaining. This leaves standing an original decision made in the lower court upholding compulsory public union dues for collective bargaining purposes and is at least a temporary defeat to conservative activists who have been campaigning hard to weaken the negotiating position of public unions.
The case, which had been brought by the libertarian Center for Individual Rights, took a considered risk based on the court as it was constituted with Scalia in place, asking the lower courts to rule against its clients so they could file an appeal in the Supreme Court.
If the court had ruled to overturn 1977’s Abood v. Detroit Board of Education, as might have happened were Antonin Scalia still on the bench, public unions and their supporters may well have been weakened at a point when Republican governors were seeking to break their negotiating strength on state workforce issues. When the case was heard in January, Scalia’s questions appeared hostile to the unions.
The court did not necessarily need to act on the case now and let the appeals court decision stand, since it could have deferred the case and called for a rehearing next year, but the refusal of Republicans to consider a nominee has left the timing too uncertain for the court to delay.
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Unions spun the stalemate as a win—which by default it was, however provisional. “The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators to work together to shape their profession,” said National Education Association President Lily Eskelsen García. “In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators and other public employees. This decision recognizes that stripping public employees of their voices in the workplace is not what our country needs.”
Advocates who were relieved by the outcome took the opportunity to call for Congress to move forward in the process for considering a nominee for the ninth position on the court. Neera Tanden, president and CEO of the Center for American Progress, released a statement that read in part:
Friedrichs was always simply a naked attempt to undermine American workers and unions, so today’s ruling provides some relief, even as conservatives plan new attacks. However, the Court’s 4-4 ruling is a fresh reminder of Senate Republicans’ obstruction around the Supreme Court vacancy. More than 100 million Americans—including women, students of color, and many in immigrant communities—will be affected by cases currently before the Court. More split decisions like today’s could lead to different laws impacting people in different parts of the country or, at best, with the Supreme Court never able to actually rule on key questions facing our country. Today, it is clearer than ever that the U.S. Senate must fulfill its constitutional duty and do its job of considering the president’s nominee to the Supreme Court.