The Impact of Scalia’s Death on Unions

With the death of Justice Scalia, questions are arising about what this means for pending cases, and for unions in particular, regarding the status of the Friedrichs v. CA Teachers Association agency fee case. Which, in short, is a blatant attack on the voice of working people by right wing, moneyed, special interests who want to take away workers’ freedom to come together and negotiate for a better life.

Based upon prior decisions of the Court and questions and comments made by the justices at the oral argument in Friedrichs, it was generally predicted and expected that the Court, by a 5 to 4 vote would conclude that agency fee as we know it would be declared unconstitutional as a violation of the First Amendment. It was expected that Justice Scalia would be in the five vote majority.

With Justice Scalia’s passing and only eight justices voting, a 4 to 4 split is expected (although not guaranteed) in Friedrichs and probably other significant cases. In the case of a tie vote, the decision appealed from remains in place. Here where the lower court approved the agency fee, a 4 to 4 vote would continue agency shop. Should one of the 8 remaining justices switch sides and a 5 to 4 vote occur, that majority would carry. This is not expected, however. For the time being, at least, agency shop looks safe.

For the future, it appears that President Obama will nominate a new Justice for Justice Scalia’s seat but the Republican Senate will attempt to block the required confirmation, perhaps even with a filibuster. Appointment of a new Justice may very well not happen until a new President is in office.

Depending on who the replacement is, once the Court has all nine justices, it could rehear Friedrichs or agree to hear another case on the same issue.

Either of those is a long way off but please be assured that AFSA is prepared and will work diligently to insure our union’s strength, as well as the strength and survival of your local, even if agency shop were to disappear.

Please be on the lookout for future AFSA webinars and trainings on this important case, as well as trainings for AFSA locals on how to improve communications with members.