By Dahlia Lithwick
In a closely watched case that might have spelled the demise of public sector unions, an equally divided Supreme Court announced on Tuesday that it had reached no decision, meaning that the judgment of the court below was affirmed. The court below—the 9th Circuit Court of Appeals—had ruled in favor of the unions in Friedrichs v. California Teachers Association, No. 14-915, in an appeal filed by nonunion public sector workers who objected to paying fees to unions basically for collective bargaining efforts taken on their behalf. So what you just heard was the sound of public sector unions around the country dodging a bullet.
This is the first case the court has handed down in which Justice Antonin Scalia’s unexpected death last month has seriously impacted the legal landscape. When the case was argued earlier this year it seemed clear that the five conservative justices on the court were extremely receptive to an argument that would have effectively crippled unions across the land. California, along with 22 other states, requires all public employees represented by unions to pay a “fair-share” or “agency” fee, which is directed toward the union’s collective-bargaining activities, even if they do not belong to the unions. This has been approved by the Supreme Court for nearly 40 years and allows those who benefit from union activities to opt out of a union’s political efforts without being free riders. The arrangement was challenged by Rebecca Friedrichs and nine other California teachers as an unconstitutional form of compelled speech.
Despite the fact that the Supreme Court already upheld agency fees in a 1977 decision called Abood v. Detroit Board of Education, finding that asking nonmembers to contribute fees only for collective bargaining would discourage free riders and ensure “labor peace,” the conservatives of the old Roberts court were ready to junk that precedent. In 2014, in another labor case called Harris v. Quinn, Justice Samuel Alito wrote an opinion inviting a challenge that would allow them to do away with the fees rule once and for all. The conservative Center for Individual Rights hustled to create the lawsuit and put this appeal on the fast track to the Supreme Court with the support of some deep pockets, including the Koch brothers.
What Wednesday’s ruling means is that union agency shop fees in the public sector are still constitutional, for now. Petitioners’ counsel had already announced, though, that they intend to seek a rehearing next term by the full court. That probably wouldn’t matter so much as long as Majority Leader Mitch McConnell and Republican colleagues in the Senate seem hellbent on ensuring that the court remains short a justice next term as well as this one by refusing to take up the nomination of Merrick Garland to replace Scalia. So, yes this case will come back at some point, but finding a fifth justice who doesn’t believe in stare decisis or the idea of binding precedent here should make for fun confirmation hearings.