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Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4

WASHINGTON — The Supreme Court on Tuesday handed organized labor a major victory, deadlocking 4-4 in a case that had threatened to cripple the ability of public unions to collect fees from workers who chose not join and did not want to pay for the unions’ collective bargaining activities.

It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court’s four remaining conservatives to move the law to the right.

The case was brought by 10 California public schoolteachers. A ruling in their favor would have affected millions of government workers and weakened public-sector unions, which stood to lose fees both from workers who objected to the positions the unions take and from those who simply chose not to join while benefiting from the unions’ efforts on their behalf.


When the case was argued in January, the court’s conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Scalia’s questions were consistently hostile to the unions.

His death changed the balance of power in this case, and most likely in many others, although 4-4 decisions mean an issue remains open and could return to the court in short order. In the case of Tuesday’s ruling, which set no precedent, unions recognized that their victory was only provisional.

For now, the clout of the court’s four-member liberal wing has increased significantly. Its members — Justices Ruth Bader Ginsburg, Stephen G. Breyer, Sonia Sotomayor, and Elena Kagan — can create deadlocks, as they did Tuesday, and they can also sometimes attract the vote of Justice Anthony M. Kennedy to achieve a liberal result.

Should Senate Republicans relent and confirm Judge Merrick B. Garland to the Supreme Court, the power of the court’s liberals might only grow.


There have been two deadlocked cases since Scalia died, and there will almost certainly be more by the end of the term in June. But there is no reason to think that ties will dominate the docket.

In recent years, the court has split 5-4 about a quarter of the time. In the term that ended in June, there were 19 such cases, and Scalia was in the majority in just six of them.

“On eight-person courts the justices reach far fewer 4-4 decisions than we would expect,” said Lee Epstein, a law professor and political scientist at Washington University in St. Louis. “They seem to work hard to minimize them because they’re so inefficient. They can hold over cases, cast strategic votes to avoid a decision down the road that may be even worse ideologically, write narrowly, and dump cases on procedural grounds.”

Union officials said they were elated by Tuesday’s decision, but they remain wary of future efforts to diminish their effectiveness.

The case was brought by the Center for Individual Rights, a libertarian group that pursued an unusual litigation strategy. Responding to signals from the Supreme Court’s more conservative justices, the group asked the lower courts to rule against its clients, a Christian education group and the teachers, so they could file an appeal in the Supreme Court as soon as possible.

Terry Pell, the group’s president, said he was disappointed with Tuesday’s tie vote. “With the death of Justice Scalia, this outcome was not unexpected,” he said. “We believe this case is too significant to let a split decision stand.”


“Either compulsory dues are an acceptable exception to the First Amendment or they are not,” Pell said. “A full court needs to decide this question, and we expect this case will be reheard when a new justice is confirmed.”

Under California law, public employees who choose not to join unions must pay a “fair share service fee,” also known as an “agency fee,” typically equivalent to members’ dues. The fees, the law says, are meant to pay for collective bargaining activities, including “the cost of lobbying activities.” More than 20 states have similar laws.

Government workers who are not members of unions have long been able to obtain refunds for the political activities of unions, like campaign spending. The case, Friedrichs v. California Teachers Association, No. 14-915, asked whether such workers must continue to pay for any union activities, including negotiating for better wages and benefits. A majority of the justices seemed inclined to say no.

Relying on a 1977 Supreme Court precedent, the 9th U.S. Circuit Court of Appeals, in San Francisco, upheld the requirement that the objecting teachers pay fees. Tuesday’s announcement, saying only that “the judgment is affirmed by an equally divided court,” upheld that ruling and set no new precedent.