How Will Justice Scalia's Death Impact the Friedrichs v. California Teachers Association Case?

February 25, 2016

By: Jacqueline A. Giordano

As we reported in a prior blog post, there is a case currently in front of the U.S. Supreme Court (Friedrichs v. California Teachers Association) in which the mandatory payment of union agency shop fees by public sector employees is being challenged as unconstitutional.  Oral argument in the case was heard by the Supreme Court on January 11, 2016.  On February 13, 2016, Supreme Court Justice Antonin Scalia passed away.  What is the likely impact of Justice Scalia's death on the outcome of this case? It was anticipated that based upon the questions posed during oral argument that the justices would likely find in favor of the petitioners by a ruling of 5-4, with Justice Scalia being one of the five justices holding that union agency shop fees in the public sector are unconstitutional.  Justice Scalia’s predicted opinion on the issue was evidenced by the following discussion with the petitioners' counsel during the oral argument regarding whether it would even be permissible to require someone to contribute to a cause that he or she does believe in, let alone a cause that he or she does not wish to support: Justice Scalia:  Mr. Carvin, is -- is it okay to force somebody to contribute to a cause that he does believe in? Mr. Carvin:  I wouldn’t think, Your Honor, that you could force Republicans to give contributions. Justice Scalia:  Yes.  That’s -- that's what I’m thinking.  Could you enact a law?  Let’s say the national political parties are in trouble so they enact a law that says all -- all members of the Republican party, if you want to be a member you have to contribute so much money. Mr. Carvin:  No. Justice Scalia:  Is that okay? Mr. Carvin:  No, it’s not, and that’s because the bedrock principle, as Harris made clear, is not whether or not you vividly oppose what they’re saying -- Justice Scalia:  Right. Mr. Carvin:  -- it's because you don't wish to subsidize it. Justice Scalia:  Exactly.  So I don't know why you're putting so much emphasis on the fact that your -- your clients oppose.  It really wouldn't matter, would it? Mr. Carvin:  No. The death of Justice Scalia leaves eight Supreme Court justices, which could result in a 4-4 tie in one of the closest cases of this term.  Many political commentators believe it is unlikely that another Supreme Court justice will be appointed before June decisions are published by the Court.  In the event that there is a 4-4 tie, the lower court decision stands.  In Friedrichs, the lower court decision of the Ninth Circuit affirmed the district court’s finding in favor of the union.  Therefore, a 4-4 tie would mean that union agency shop fees in the public sector would remain constitutional, at least for now.  If this occurs, the petitioners' counsel has already announced that they intend to seek a rehearing next term by the full Court.