Via email from Lyle Denniston at scotusblog.com:
Opinion analysis: Result but no guidance on public unions’ fees (FINAL UPDATE)
Posted Tue, March 29th, 2016 11:44 am by Lyle Denniston
Final update 11:44 a.m.
The most important labor union controversy to reach the Supreme Court in years sputtered to an end on Tuesday, with a four-to-four split, no explanation, and nothing settled definitely. The one-sentence result in Friedrichs v. California Teachers Association will leave intact, but on an uncertain legal foundation, a system of “agency fees” for non-union teachers in California — with the legal doubts for public workers’ unions across the nation probably lingering until a ninth Justice joins the Court at some point in the future.
The practical effect was to leave undisturbed a ruling by the U.S. Court of Appeals for the Ninth Circuit, which had simply found itself bound by a prior Supreme Court precedent upholding such fees against constitutional challenge. The Ninth Circuit had before it a case specifically filed as a test of that precedent, and only the Supreme Court could revisit that prior ruling, binding on all lower courts.
The Court had heard the Friedrichs case on January 11 and, from all appearances then, it seemed to be on its way toward a five-to-four decision to declare that it would be unconstitutional for unions representing government employees to charge fees to workers they represent but who are not among its members, even when the fees cover the costs of normal union bargaining over working conditions, not lobbying or outright political advocacy.
But the death of Justice Antonin Scalia last month left the Court to either find a way still to decide the case, or to end it with an even split. If it had actually tried since Scalia’s death to find a way around a split, that effort clearly came up short. The result set no precedent, and thus left the constitutional issue dangling.
Shortly after Justice Scalia died, the Center for Individual Rights, a conservative legal advocacy group involved in the Friedrichs case, announced that it would ask the Justices to schedule a rehearing on the case if it were to split four to four. The Center said at the time that it expected such a request would put the case off until the Court’s new Term, which is slated to begin on October 3. (UPDATE: Lawyers involved said Tuesday that a rehearing petition will, in fact, be filed.)
Under the Court’s rules, a rehearing request in the Friedrichs case would have to be filed within twenty-five days following Tuesday’s ruling. It would require the votes of five Justices to order such a reconsideration, and one of the five must have been one who had joined in the decision. It is unclear how that rule would work when the judgment had been reached by an evenly divided Court.
Tuesday’s result in this key case marked the second time that the Court, with its membership reduced by one, had divided evenly in a case it had reviewed. A week ago, it did so in a case about spouses’ responsibility for each others’ debts (Hawkins v. Community Bank of Raymore).
Although President Obama has nominated Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit to succeed Justice Scalia, Senate Republican leaders have vowed to take no formal action on that nomination until after the presidential election on November 8. It thus is unclear at this point when a ninth Justice might join the Court, and help it avoid further four-to-four splits in deciding cases.
If the GOP position does not change, a new Justice might be approved in a post-election Senate session, but otherwise would probably not be approved in time to join the Court before next March.
If the Court were to decide not to rehear the Friedrichs case, another option for confronting the same agency fee question would be in a different case that had worked its way through lower courts, and reached the Justices after there was a full bench.
[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief by the American Federation of Teachers and American Association of University Professors in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]
For more background, see Shamus Cooke’s ‘Have Unions Cheated Death With Scalia Gone?’
Well…no. In all likelihood the ninth justice appointed to the Court will break the tie. Don’t bet on Merrick Garland being pro-labor, nor any other potential Dem-appointee. For the Rs? Cass Sunstein?
From wsws.org: ‘Obama high court pick Merrick Garland: A record of support for police powers’ by Tom Carter
But here is ‘Friedrichs Plus:
From the Center for Individual Rights: March 29, 2016: CIR to Seek Rehearing in Friedrichs
“CIR is representing ten California teachers and the Christian Educators Association International in a landmark effort to re-establish the right of individual teachers and other public employees to decide for themselves whether to join and support a union. The suit claims state “agency shop” laws, which require public employees to pay union dues as a condition of employment, violate well-settled principles of freedom of speech and association. While many teachers support the union, others do not and the state cannot constitutionally compel an individual to join and financially support an organization with which he or she disagrees.
Collective Bargaining is Inherently political
Typically, California teacher union dues cost upwards of a $1,000 per year. Although California law allows teachers to opt-out of the thirty percent or so of their dues devoted to overt political lobbying, they may not opt out of the sixty to seventy percent of their dues the union determines is devoted to collective bargaining. Requiring teachers to pay these “agency fees” assumes that collective bargaining is non-political. But bargaining with local governments is inherently political. Whether the union is negotiating for specific class sizes or pressing a local government to spend tax dollars on teacher pensions rather than on building parks, the union’s negotiating positions embody political choices that are often controversial.
Political Opt-Out is Burdensome...yada, yada
To say that they stretch the truth would be an understatement, or at least Friedrichs herownself does.