Of most interest to public sector labor unions after Justice Antonin Scalia’s recent death is its impact on Friedrichs v. California Teachers’ Association, where the plaintiffs seek to prohibit the collection of agency fees and overturn Abood v. City of Detroit. Friedrichs was argued on January 11, and experts predicted a 5-4 ruling to ban agency fees. Justice Scalia’s death means he cannot be part of the ruling in the case, regardless of his intended vote. That leaves the case seemingly at a 4-4 tie.

So what happens next?

Two main schools of thought are emerging about Friedrichs:

1. A non-majority (4-4) decision will issue, meaning that the 9th Circuit Court of Appeals decision to reject Friedrichs’ challenge will stand. (Some have speculated that Justice Roberts might rule against Friedrichs based on stare decisis, i.e., the doctrine of precedent.)

2. The Court, through the Chief Justice, John Roberts, will order the case reargued once a new Justice is confirmed. With the near-universal expectation being that no new justice will be confirmed until after the next president is sworn in, it is conceivable that the case may not be reargued until late 2017.

Many commentators opined initially that scenario #1 was likeliest. But commentators are now increasingly projecting that, given the importance of the case, scenario #2 is likelier. That means the case will turn on who wins the presidential race. A Republican win will probably produce a conservative justice and a vote to overturn Abood; a Democratic win a liberal justice and a vote to affirm it.

While President Obama said he will name a replacement in due time, Republican congressmen and women have already pledged to block any Obama nominee. Within an hour after Scalia’s death was announced, Majority Leader Mitch McConnell pledged the vacancy will not be filled until a new president is in office, saying that “the American people should have a voice in the selection of their next Supreme Court Justice.” But Democratic commentators have pointed out that the American people have spoken, when they elected Obama – twice – and that as president, he has a job to do, which includes filling vacancies on the Supreme Court. Senate Minority Leader Harry Reid countered that "the President can and should send the Senate a nominee right away. With so many important issues pending before the Supreme Court, the Senate has a responsibility to fill vacancies as soon as possible. It would be unprecedented in recent history for the Supreme Court to go a year with a vacant seat. Failing to fill this vacancy would be a shameful abdication of one of the Senate's most essential Constitutional responsibilities." But Republicans may be coming around and willing to consider nominees President Obama proposes, if only not to appear obstructionist in an election year.

Scalia’s untimely death creates great uncertainty as to when his seat will be filled, how Friedrichs will be decided, and whether or not the question of the validity of agency fees will be decided any time soon.

If you have any questions about this blog, please contact Gary Messing (916.446.5297 or gary@majlabor.com) or Gregg Adam (415.266.1801 or gregg@majlabor.com).