by Charlotte Garden, associate professor at Seattle University School of Law, litigation director of the Korematsu Center for Law & Equality, and faculty advisor to the ACS student chapter at Seattle Law. Follow her on Twitter @CharlotteGarden.
On Tuesday, the Supreme Court affirmed the Ninth Circuit’s decision in Friedrichs v. California Teachers Association by equally divided vote. This result—a win for public sector unions—has been anticipated by Court watchers since Justice Scalia’s death made a tie vote among the remaining eight justices nearly inevitable. Still, a tie vote did not require the Court to affirm the judgment below—instead, the Court could have held the case over for reargument once it was back to the full compliment. That the Court did not go that route could reflect the Justices’ own recognition of the political reality that Senate Republicans’ intransigence makes confirmation of a ninth justice before the presidential election in November unlikely. More important, though, Friedrichs is a sign of things to come—the 4-4 affirmances that are all but certain to arrive later this Term will cause far more disruption and uncertainty.
What Does Affirmance in Friedrichs Mean for Public Sector Unions?
As I previously described for ACSblog, January’s argument in Friedrichs left public sector unions—as well as states that have chosen to manage their workforces through collective bargaining with unions supported by agency fees—little reason for hope. The Court seemed poised to hold that public sector employees have a First Amendment right not to contribute financially to the unions that represent them, even as they benefit from that representation. A ruling against the union and state defendants would have reversed a nearly 40-year-old Supreme Court precedent, Abood v. Detroit Board of Education, and handed a long-sought victory to the right.
Thus, Tuesday’s decision was a reversal of fortunes for public sector unions and employers. It means that in the nearly half of states in which public sector agency fees are required or authorized, unions will not be left scrambling to cover the gap that would have inevitably resulted when represented workers made the economically rational decision to free ride on their co-workers. And the timing of that reversal—which would have left unions to cover their shortfall using dues paid by members on a voluntary basis—is also critically important. Unions would have had to divert member dues that could otherwise have gone to election-related advocacy (among other things). And that reallocation would have dampened union members’ ability to engage in political speech through their unions during the upcoming presidential election season—a fact not lost on the plaintiffs’ lawyer, Michael Carvin.
A Sign of (Non)Decisions to Come
While Friedrichs was among the most high-profile cases in an exceedingly high-profile Term, its outcome is also far more straightforward than will be the other cases that are likely to deadlock later this year. That is because the Friedrichs plaintiffs sought to overturn settled Supreme Court precedent, meaning there is necessarily no circuit split to resolve. (That fact was underscored by the Friedrichs plaintiffs’ litigation position in the lower courts; they conceded that their position was foreclosed by Abood, and sought a speedy judgment in favor of the defendants.) In other words, Friedrichs is not precedential, but Abood still is.
Yet, even in this relative best-case scenario, uncertainty is inevitable because the advocacy groups responsible for Friedrichs will continue to mount challenges to public sector unions based on recent decisions calling Abood into question. Friedrichs could have put that uncertainty to rest one way or the other; instead, the 4-4 affirmance leaves unions, workers, and employers in a holding pattern, awaiting another test case once the Court has returned to full strength.
Still, the uncertainty regarding public sector agency fees pales in comparison to the disruption that may result from 4-4 splits in other cases. Some of those cases involve issues such as abortion rights and contraceptive access on which the circuits are split; if the Court cannot resolve those cases, fundamental rights will take on different contours in different parts of the country. And then there is Texas’s challenge to President Obama’s immigration enforcement policy, which was upheld by the Fifth Circuit; that decision will be left standing if the Court is equally divided, creating havoc for the government and the families caught up in the immigration system.
That this is a remarkably high-profile year in the Supreme Court both underscores the need for a ninth justice and makes it less likely that one will be confirmed before next year. But the consequences of using the appointment and confirmation process as a political cudgel are real, and Friedrichs is just the beginning.