For conservative activists hoping to reshape U.S. labor law, Tuesday’s Supreme Court 4-4 ruling in Friedrichs v. California Teachers Association was a confirmation of their fears that they no longer have a sympathetic majority on the nation’s highest court. The unexpected death last month of Justice Antonin Scalia, the court’s most outspoken constitutionalist, has created a void that may not be filled in the foreseeable future.
“The death of Justice Scalia has proved a disaster for public-sector workers who have their paychecks raided by unions,” said Iain Murray, vice president for strategy at the free-market Competitive Enterprise Institute. “With the court gridlocked, government unions will continue to take dues from non-members, whether they like it or not. Four justices have voted against the free speech rights of workers to prop up labor union power.”
The bench may not regain a majority open to conservative labor reforms for some time. President Obama’s pick to replace Scalia, Judge Merrick Garland, has a long history of siding with unions. Senate Republicans have vowed not to hold a confirmation vote this year, arguing that the next president should pick the new justice. Democratic presidential front-runner Hillary Clinton currently leads Republican front-runner Donald Trump by double digits in most head-to-head polling. Clinton is extensively backed by organized labor.
The Friedrichs case involved whether government entities could sign contracts with public-sector labor unions that forced workers to join the union or at least support it financially. During January’s oral arguments, there appeared to be a narrow 5-4 majority on the court to overturn the precedent, a 1977 case called Abood v. Detroit Board of Education, that allowed such contracts. That would have been a major blow to organized labor, since forced union dues account for a major part of their revenue.
Overturning Abood would have been the third major victory for conservative activists on the high court in the last four years. In 2012’s Knox v. Service Employees International Union, the court ruled 7-2 that unions could not force workers to pay a “special assessment” — additional money on top of regular union dues or fees — to cover unexpected political expenses without first giving the workers the opportunity to opt out of making the payment.
Two years later, the court ruled 5-4 in Harris v. Quinn that state-subsidized Illinois home healthcare workers were not state employees and therefore not eligible to unionize, a blow to public-sector labor leaders, most notably the Service Employees International Union, that had been working extensively with governors across the country to force those workers to have to join unions to keep their subsidies. Initially, many legal observers though the court would use Harris v. Quinn to overturn Abood, but the justices instead delivered a narrower ruling.
Abood was again at issue in Friedrichs, and during January’s oral arguments there appeared to be a majority to overturn it. That majority was lost the following month with Scalia’s death. On Tuesday, the court issued a one-sentence statement that the remaining eight justices were evenly divided on the matter, meaning an earlier appeals court ruling affirming Abood will stand.
Terry Pell, president of the Center for Individual Rights, the libertarian nonprofit legal foundation that represented the plaintiffs in Friedrichs, said the ruling was “not unexpected” in light of Scalia’s death and said he remained optimistic. “We will petition for a re-hearing. The court will hold the petition until a new justice is confirmed and then vote on it. The case could be reheard in the 2017 term. So, no surprise today — it just triggers the next step in getting the case held and re-heard once the court is back up to full strength,” he said.
Others expressed greater disappointment. Karen Harned, executive director of the National Federation of Independent Business’ legal center, said she “laments” the case’s outcome, saying it effectively upholds a system rigged against taxpayers. “It underscores how important the next Supreme Court appointee would be. People on both sides agree on that.”
