With Justice Antonin Scalia’s unexpected passing, we can’t help but ask what will happen with the court’s pending cases like Friedrichs v. California Teachers Association, which appeared headed to a 5-4 split. After oral argument in Friedrichs, Scalia seemed set to be one of five justices voting to strike down agency fees and overturning Abood v. Detroit Board of Education.
As I see it, there are three possible outcomes in Friedrichs, all of which provide at least a temporary stay of execution for agency fees.
The first, and most likely, is a 4-4 decision, with the court issuing a one-sentence opinion saying “The judgment is affirmed by an equally divided Court.” When this happens, the lower court decision is upheld but it has no precedential value, almost as if the court had never granted cert or heard the case. Since justices occasionally recuse themselves, such ties are not unusual (see for instance “Free and Appropriate: Parents Wealth Muddies Special-Education Tuition Case“). One difference in Friedrichs, however, is that the 9th Circuit disposed of the case in name only. To accelerate their case, the plaintiffs asked the district court to enter a judgment without a trial, recognizing that under Abood they would lose their claims. They pointed out that the Supreme Court’s decisions in Knox v. Service Employees International Union and Harris v. Quinn had called Abood into question. But the only the Supreme Court could decide whether Abood should be overturned so they should be allowed to proceed as quickly as possible to the Supreme Court. The trial court agreed, followed by the 9th Circuit, making the lower court’s disposition of Friedrichs underdeveloped at best.
A second possibility would be for the Court to decide to rehear Friedrichs once Scalia’s replacement is confirmed. The obvious problem with this is that we likely won’t have a full complement of justices until at least this time next year and perhaps longer. President Obama has said that he will nominate someone to replace Scalia, but the Senate Republicans are unlikely to approve any Obama nominee. They will point to Senator Chuck Schumer’s declaration in 2007 that if any Supreme Court vacancies occurred before the 2008 election he would block anyone George Bush nominated. They will also point President Obama’s own attempts as a senator to filibuster Samuel Alito’s nomination. Turnabout, they will argue, is fair play and the party that turned Bork’s name into a verb has no room to complain.
A third, and perhaps least likely, outcome would be for the court to announce a compromise decision that would preserve agency fees but strike down the opt-out system currently in place as unduly burdensome on teachers who don’t support the union. This would require one of the liberal bloc, perhaps Breyer or Kagan, to join Roberts, Alito, Thomas, and Kennedy. For the liberals this would be a way to avoid rehearing the issue, to salvage most of what the unions want, and to create some comity with the four justices that were ready and had the votes to completely eliminate agency fees. Since justices have longer time horizons than presidents, senators, and representatives, institutional comity can be a greater consideration for the court. As well, a risk for the liberal bloc is that a Republican wins the presidency in November leading to a reconstituted 5-4 majority against agency fees. A compromise might let them take the issue off the table or take it off the table for a few years. And as I discussed in “Let My People Go,” the liberal bloc seemed uncomfortable defending Abood on constitutional grounds, indicating that they think there is some merit to the plaintiffs’ free speech claims.
As it stands, teachers, even ones not belonging to the union, must request a refund for the portion of their dues that go to explicitly political activity, and the unions make it difficult for the teachers to even know how to make that request. The court could declare that, instead of requiring teachers who are not union members to opt-out, that instead they must opt-in. Making it more difficult for unions to confiscate at least some portion of a teacher’s money might satisfy some First Amendment concerns. This option could also be attractive to the anti-Abood bloc. The risk for them is that a Democrat wins the presidency in November and replaces Scalia with a pro-Abood appointee, leaving them with nothing. Of course, the longer Trump continues to do well in the nomination contest, the better things look for Democrats in November. This last option is deeply speculative. But since we’re in unprecedented territory, that’s all we can do.
– Joshua Dunn