Scalia-less SCOTUS Gives Surprise Reprieve to Public-Sector Unions

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The Justices of the US Supreme Court sit
And then there were eight.Photo: TIM SLOAN/2010 AFP

We all heard that the Supreme Court might deadlock 4-4 on some cases while Antonin Scalia’s seat remains empty. The first such case came up last week, involving a housing-loan-discrimination dispute. But a much higher-profile 4-4 non-decision was announced today, as a Ninth Circuit Court of Appeals decision, which during oral arguments looked sure to be doomed, was upheld, and with it the ability of public-sector unions to collect dues from non-members they are required to represent in collective bargaining.  

The 5-4 decision everyone expected in Friedrichs v. California Teachers Association before Scalia’s death would have been a deadly blow to public-sector unions, adopting the once-exotic conservative argument that the working conditions of government employees is an inherently political subject matter, making mandatory representation fees an infringement on dissenting employees’ First Amendment rights, like fees used for explicitly political purposes. Allowing non-members to reap the advantages of union-negotiated wages and benefits without paying any dues or fees would obviously make union membership vastly less attractive, in part by making collective bargaining significantly more expensive for members. 

The plaintiff’s case won’t just go away; as part of a long-term corporate-and-libertarian-funded effort to undermine the labor movement, it could come back to SCOTUS if Scalia’s seat is filled by a conservative. So add another very particular stake to the 2016 presidential contest: Whoever has the power to break the deadlock at SCOTUS over this and other cases — and shift some pending decisions from one direction to another — will have an impact on broad areas of law and policy for many years to come. Perhaps Susan Sarandon should think about that before flirting with the idea of taking a walk or even supporting Donald Trump if Bernie Sanders does not win the Democratic presidential nominating contest.