Justice Scalia’s death results in win for labor unions

The case most feared by labor unions this term was Friedrichs v. California Teachers Association, a case brought by California teachers who want to be free-riders, i.e., who want all the benefits of collective bargaining, but who do not want to pay union dues, pitting their alleged  “free speech” rights under the First Amendment against  the “association” rights of unions under the First Amendment.

Two years ago, in the Court’s decision in Harris v. Quinn, the five conservative activist Justices suggested that they might be willing to reconsider the Supreme Court precedent of Abood v. Detroit Board of Education, holding that non-union employees can be required to pay a “fair share” or “agency” fee to cover the union’s costs to negotiate a contract that covers all the public employees, even those who are not union members.

It was widely believed that Friedrichs would be yet another controversial overturning of Supreme Court precedent in the Roberts Court. Then Justice Antonin Scalia unexpectedly died, creating a 4-4 ideological split on the court before a final opinion was issued in Friedrichs. Justice Scalia finally did organized labor a favor.

Today the U.S. Supreme court issued a one-sentence per curiam opinion in Friedrichs, affirming the Ninth Circuit Court decision below due to the 4-4 tie vote. The opinion is here.

Lyle Denniston writes at SCOTUSblog, Opinion analysis: Result but no guidance on public unions’ fees:

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.

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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.

The Plutocrats of the corporatocracy will never give up trying to destroy labor unions to remove the only effective political opposition to their complete domination of our political system. Today is not that day.