Missing Scalia: 4-4 SCOTUS decision leaves mandatory union fees in place

posted at 12:01 pm on March 29, 2016 by Ed Morrissey

A years-long process by California teachers to free themselves of the yoke of mandatory dues fees even when the teachers refused to join the unions came up one justice short at the Supreme Court. That justice, of course, was the late Antonin Scalia, who would have almost certainly chosen to affirm the First Amendment and property rights of the plaintiffs. Instead, a 4-4 split at the Supreme Court on Friedrichs v California Teachers Association has the impact of affirming the lower court ruling that kept the requirement to make those payments in place:

The U.S. Supreme Court on Tuesday split 4-4 on a conservative legal challenge to a vital source of funds for organized labor, affirming a lower-court ruling that allowed California to force non-union workers to pay fees to public-employee unions.

The court, shorthanded after the Feb. 13 death of conservative Justice Antonin Scalia and evenly divided with four liberal and four conservative members, left intact a 1977 legal precedent that allowed such fees, which add up to millions of dollars a year for unions.

A little over a month ago, Carolyn Phenicie predicted this outcome, and reported that the plaintiffs in Friedrichs would have a plan in place if the court split 4-4:

Following oral arguments in early January (read The 74’s coverage from inside the court), many thought Scalia, the potential swing vote in the case, had come down on the side of those arguing against the dues, all but ensuring a 5-4 victory for the plaintiffs. (Read our analysis of how the unions lost three key SCOTUS swing votes)

However, no decision at the court is final until it is announced, so Scalia’s death is likely to lead to a 4-4 tie verdict. The end result of a tied ruling: The high court affirms the lower court’s ruling. In the case of Friedrichs, that would mean the Ninth Circuit’s ruling upholding the mandatory dues, based on a ruling precedent from the 1970s, would stand. Friedrichs and the other plaintiffs would lose.

Court observers have been debating what happens next with the Friedrichs case, following a likely 4-4 ruling. Late last week, they got their answer. The Center for Individual Rights, the group representing Friedrichs and her fellow teachers, announced Wednesday in the event of a tie, they would officially ask the Supreme Court to reevaluate the case, and re-hear arguments, once a ninth justice has been appointed.

That depends on who appoints the next Supreme Court justice, though. It’s not going to do much good if Michael Garland ends up as Scalia’s successor, for instance. The man appointed by Barack Obama and currently blocked by the Republican-controlled Senate has a history with rulings on unions — and let’s just say he’s no Antonin Scalia:

A former top labor arbiter warned that President Obama’s Supreme Court nominee, Judge Merrick Garland, will “push the envelope” on constitutional interpretation to advance liberalism.

Garland ruled in favor of the National Labor Relations Board (NLRB), the nation’s highest federal labor arbiter, on 18 of 22 cases and even when he sided with employers he demonstrated “an outlook that is generally favorable to union activity,” according to an analysis from OnLabor.

Peter Schaumber served as an NLRB board member from 2002 to 2010 and witnessed several of his agency’s decisions appear before Garland, the chief justice of the D.C. Circuit Court of Appeals. He said that the nominee’s jurisprudence in those cases indicates that he will “significantly tilt the balance of the court” in favor of the regulatory state and ideological liberalism.

“Garland certainly on NLRB issues will defer to the agency even in circumstances that push the envelope,” Schaumber told the Washington Free Beacon. “In some respects [the NLRB] seems like a narrow issue but it says lot. He came down on the wrong side.”

If Hillary Clinton wins the presidency, you can bet we’ll either see her renominate Garland, or that Senate Republicans will rush to confirm him to prevent her from appointing someone worse, especially if the GOP loses control of the Senate on November 8th. If Ted Cruz wins the GOP nomination and manages to beat Hillary in the general, then the CIR might breathe a little easier with the re-hearing strategy. What about Donald Trump? Will a man who appeals to blue-collar workers on the basis of protectionism be eager to appoint justices who will end up sapping unions of their strength?

Let’s just say that CIR’s strategy looks a little like a Hail Mary at this point. Justice Scalia’s wit and wisdom have been missed since the moment of his death, but today the latter is missed in particular.

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