Starkest Illustration of The Death of Scalia

By Brett Mittler 

The following piece is a follow up to my previous Review of Friedrichs v. California Teachers Association - Union Case Before Supreme Court.

The most significant labor union controversy that had reached our nation’s high court in recent years has come to a halt. The one sentence result (“The judgment is affirmed by an equally divided Court.”) in the case of Friedrichs v. California Teachers Association will permit the system of agency fees for non-union teachers in California. This split ruling leaves the legal foundation surrounding this issue in tumult with the unions coming out on top, at least until the Supreme Court has a ninth Justice at some point in the future.                                

The only effect this ruling had was to leave untouched the ruling by the U.S. Court of Appeals for the Ninth Circuit. The issue has come full circle without any additional legal reasoning; the Court of Appeals ruling was bound by a previous Supreme Court precedent that upheld fees against a previous constitutional challenge. This case, Friedrichs, was supposed to revisit and build upon the prior ruling. Due to the 4-4 Supreme Court, the possibility of a constructive outcome pervaded us.

Back in January when Court heard the Friedrichs case, it seems that this was a shoo-in, a five-to-four split, that it was unconstitutional for unions representing government employees to charge fees to workers that they bargained for but were not members. This would even apply to fees that covered the cost of normal union negotiations, not specifically lobby or political advocacy fees.  

The death of Justice Scalia left the Court with little option but ending it with an even split. Sadly, there is little evidence that the Court made an effort to mitigate the split and come to a more productive conclusion. The result of the case set no legal precedent and thus leaves the constitutional issue up in the air. The lawyers involved in the case are set to file a rehearing petition, requesting that the case be heard in the new term beginning October 3rd in hopes of having another Justice on the bench by then. 

If the Court decides that they will not rehear the Friedrichs case, the only other option to confront the issue of agency fees would be the consideration of an entirely different case. This case would have to work its way through the lower courts again until it reached the Supreme Court. Lower courts will have to rely on similarly unhelpful legal foundations. We simply will not have an answer for the litigants in these cases until a new Justice is confirmed. When we finally have a nine-person Court, what will the next step be for union dues? Only time will tell, I suppose.