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Scalia’s Passing Likely Means Public-Sector Unions Survive to Fight Again

Prior to the death of Justice Antonin Scalia, the Supreme Court seemed poised to limit the rights of unions to charge non-union members "agency" or "fair share" fees covering the costs of collective bargaining. Friedrichs v. California Teachers Association, which came before the Court in January, was by all accounts headed for a 5-4 decision against the unions. Now, with Scalia's death, the vote will likely be split – and revert to the lower court's decision.

Prior to the death of Justice Antonin Scalia, the Supreme Court seemed poised to limit the rights of unions to charge non-union members “agency” or “fair share” fees covering the costs of collective bargaining. Friedrichs v. California Teachers Association, which came before the Court in January, was by all accounts headed for a 5-4 decision against the unions. Now, with Scalia’s death, the vote will likely be split – and revert to the lower court’s decision.

scalia

(Photo Credit: By United States Mission Geneva [CC BY 2.0], via Wikimedia Commons)

“If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four,” Tom Goldstein explains at SCOTUSblog. “In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is ‘affirmed by an equally divided Court.'”

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Union supporters feared that a decision against California Teachers Association would gut public-sector unions, which financially depend on fees collected in part from non-members. Although unions can’t charge non-members for their political activities, they have been able to do so to cover the costs of collective bargaining, which results in higher pay for both union and non-union employees.

A decision in favor of the plaintiff would potentially affect 10 million government workers including public school teachers, police officers, firefighters, and postal workers.

Jeffrey H. Keefe, a research associate at the Economic Policy Institute, tells The L.A. Times that anti-union groups could mount a new case, but that doing so would take a year or more. So, even if this case does revert to the lower court’s ruling, it may be less a victory for labor than a temporary reprieve.

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Jen Hubley Luckwaldt
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