By Charlotte Garden – Government Executive
For that reason, progressives were pinning their hopes on Scalia to play the role of unlikely savior in one of the term’s most contentious cases: Friedrichs v. California Teachers Association. (While often the swing vote, Justice Kennedy’s comments during oral argument in a similar case two years ago indicated he was likely to vote against the union.) A ruling against the state and union defendants would be a major blow, perhaps the most significant one in a decades-long conservative effort to defund America’s public-sector labor unions by reversing Abood v. Detroit Board of Education, a 1977 decision which held that public-sector employees could be required to pay a so-called fair-share fee to the union that represents them. While no one would call him a great friend of organized labor, Scalia was the most likely swing vote in Friedrichs; Court-watchers saw his prior opinions as an endorsement of the union’s position. But Scalia had also characterized mandatory union fees as an “undeniably unusual” “tax” levied on public employees by private unions in a 2007 case, so his vote was no sure thing.
But with news of Scalia’s passing on Saturday, a new question emerged: Assuming Justice Scalia was indeed part of a five-justice majority to hold mandatory union fees unconstitutional, what will become of Friedrichs? There are two possibilities. First, sometime between now and July, the Court could hand down a 4-4 decision. A tie goes to the victor in the lower court, and in this case the union won handily before the Ninth Circuit Court of Appeals, which simply applied Abood. Second, the Court could hold the case over for re-argument once a new justice is confirmed. But the Court may be unwilling to leave Friedrichs and other close cases undecided while a confirmation battle plays out—especially because that battle seems to be shaping up to last a year or more.
At minimum, then, Abood is nearly certain to remain good law through the 2016 election. That alone is a victory for public unions, which will not be forced to divert member dues away from political activity in the middle of a presidential-campaign season.