Republicans have made no secret of the fact that they fear the Supreme Court moving to the left, even a little, in the wake of Antonin Scalia’s death. But we were reminded this morning that in the late justice’s absence, the high court’s capacity for conservative change has already been curtailed.
CNBC reported on the release of a decision that wasn’t expected until June.
The U.S. Supreme Court on Tuesday split 4-4 on a conservative legal challenge to a vital source of funds for organized labor, affirming a lower-court ruling that allowed California to force non-union workers to pay fees to public-employee unions.The court, shorthanded after the Feb. 13 death of conservative Justice Antonin Scalia and evenly divided with four liberal and four conservative members, left intact a 1977 legal precedent that allowed such fees, which add up to millions of dollars a year for unions.
The case is called Friedrichs v. California Teachers Association, and the Supreme Court’s “decision,” such as it is, has been posted online here. It’s extraordinarily brief, however: it reads in its entirety, “Per Curium. The judgment is affirmed by an equally divided Court.”
This is no small development. At issue in this case was a seemingly obscure issue – public-sector unions’ “agency fees” – but while this may seem like a tangential dispute, the outcome had the potential to disrupt many labor unions nationwide.
Revisiting our previous coverage, The New Republic’s Elizabeth Bruenig summarized the issue this way:
Agency fees work like this: Public sector unions are required to cover all employees in a given bargaining unit, whether the employees opt into union membership or not. Public sector employees (which include EMTs, firefighters, public school teachers, social workers, and more) thus pay agency fees to their respective unions even if they are not union members, because public sector unions work on behalf of everyone in their bargaining unit, not just union members.Agency fees do not fund unions’ political activities, but rather strictly the costs of union grievance-handling, organizing, and collective bargaining. In the 1977 case Abood v. Detroit Board of Education, the Supreme Court upheld the right of public sector unions to extract agency fees from public sector workers, and found that agency fees do not violate employees’ freedom of speech, so long as they do not fund unions’ political activities.
The trouble, according to many on the right, is that literally everything unions do – even collective bargaining itself – is inherently political, even if it’s unrelated to campaign activities. As a result, the Friedrichs case offered the justices an opportunity to overturn the Abood precedent.
And if Scalia had lived, that’s almost certainly what the justices would have done in a 5-4 decision. Instead, the court was evenly split.
Make no mistake: this case represented a major threat to the existence of unions that rely on agency fees. Had the court sided with the right, public-sector unions would still bargain on behalf of public-sector workers – union members and non-members alike – but workers’ dues would have been voluntary.
This case will go back to the Supreme Court again in the not-too-distant future, but for now, a 4-4 split saved public-sector unions, leaving them to fight another day.