The recent death of U.S. Supreme Court Justice Antonin Scalia may have saved a challenge to a California Teacher’s Association “fair share” agreement under which California public school teachers were required to contribute to the union even though they were not union members. By a 4-4 vote in Friedrichs v. California Teacher’s Association, the Court affirmed a lower court ruling that had approved such “fair share” agreements. Under Supreme Court rules, an “equally divided” vote by the Court results in approval of the lower court decision but does not establish nationwide precedent as do other Supreme Court decisions.
The issue in the case, an important and closely watched one, was whether the First Amendment to the U.S. Constitution permits public employers to enter into “fair share” agreements with unions where non-union members are required to make financial contributions in support of the union. The teachers, who were not members of the teachers’ union, argued that requiring them to make financial contributions to the union violated their First Amendment rights to free speech and association. There are a number of other cases currently making their way through the lower courts which raise similar issues and on which the Supreme Court eventually may be asked to rule.
As you know, the Supreme Court normally consists of nine Justices. Because of ideological differences among the Justices of the Court, it is not uncommon for cases to be decided by a 5-4 vote. The absence of one Justice raises the specter, at least, that other cases could be decided by an equally divided Court. Although President Obama has nominated Chief Judge Merrick Garland from the U.S. Court of Appeals for the District of Columbia Circuit to replace Justice Scalia, it is unclear when, if ever, hearings on the nomination will be held.
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Thomas R. Bagby
Labor and Employment Group