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Supreme Court Justice Antonin Scalia Dies and Labor Gets a Stay

Bill Raden

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Even as Saturday’s death of Supreme Court Justice Antonin Scalia was setting the stage for what promises to be an incendiary battle of wills between Republican leaders in Congress and President Obama over naming a replacement for a man considered a cornerstone of the court’s conservative majority, California teachers and public-sector unions across the country were breathing a sigh of relief.

That’s because the 79-year-old Scalia, who died in his sleep on Saturday at a remote resort in West Texas, appeared to hint during last month’s oral arguments that he would vote along ideological lines with his fellow conservative justices in affirming the plaintiffs’ side in Friedrichs v. California Teachers Association, in what most court observers were anticipating to be a 5-4 vote. That case, whose decision was expected by the end of June, seemed all but guaranteed to overturn the High Court’s 1977 Abood v. Detroit Board of Education ruling — along with California’s agency shop law that requires all teachers in a union bargaining unit to pay “fair share” fees for collective bargaining, whether or not they are members of the union and disagree with the union’s policies.

Teachers were bracing for the worst. By allowing all members of a collective bargaining unit to stop paying dues altogether, Friedrichs threatened to cripple the union’s ability to fund its lobbying and efforts to advocate for public school children while effectively stifling the collective political voice of all public-sector workers.

But in one of the most dramatic political reprieves in recent memory, Scalia’s death effectively puts that fate on hold and perhaps even turns the tide back on the side of employees.

For the immediate future, according to University of California, Irvine law school professor Catherine Fisk, California’s agency shop law seems safe.

“The general rule,” Fisk told Capital & Main, “is that when there [are] only eight justices voting – for example, because of a recusal — if they split 4-4 it’s an affirmance by an equally divided court. Which would mean that Abood would stand. But when a justice dies during the term, there’s also a long tradition of setting the case for reargument once the court is back to full steam.”

In other words, while for the time being the state’s agency shop law will stay unchanged, whether Friedrichs gets a second day in court  or a dismissal during the current term will have much to do with whether President Obama can fill the Scalia vacancy in the next year.

Friedrichs is hardly the only case before the court whose outcome is affected by the new deadlock between liberal and conservative justices. Scalia’s vote would have also been decisive in settling issues dealing with reproductive freedom and whether the president can exercise his prosecutorial discretion not to deport immigrant families, just as in the past his vote was crucial in Citizens United and aggravating the huge impact that unlimited campaign spending is having on American elections.

But labor’s stake in replacing Scalia — as well the two vacancies expected during the term of the next president — couldn’t be higher. In what has been described as a 50-year “grand scheme” by libertarian extremists to use the court to destroy the nation’s unions, Friedrichs was only the beginning, a follow-up to 2014’s Harris v. Quinnwhich targeted home health-care unions, and which successfully argued that the First Amendment does not allow the collection of fair share fees from home health-care workers.

Both Harris and Friedrichs were part of a series of cases that the National Right to Work Committee had brought to the court to chip away at collective bargaining by using First Amendment arguments.

“There are cases now in the lower courts,” Fisk warned, “arguing that the whole regime of collective bargaining based on majority rule violates the First Amendment rights of employees who do not want to be represented by a union — the minority. And so everybody thought that if Friedrichs won in the Supreme Court, there was going to be a next case arguing that public-sector collective bargaining was unconstitutional. And there was also going to be a next case arguing that the whole regime of collective bargaining based on majority rule was unconstitutional.”

For now, that danger is on hold while the fight shifts to Capitol Hill over the presumptive liberal nominee expected from Obama and whoever the president will be that follows him.

“If there is another conservative justice to replace Scalia,” Fisk said, “I think we’re back on that trajectory. If there is a more liberal justice to replace Scalia, then I think there are [only] going to be three votes — or four at most — to dramatically change labor law.”


(Scalia photo: Stephen Masker)

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