When the US Supreme Court split 4-4 in Friedrichs v. California Teachers Association (03/29/2016), that left intact the 9th Circuit's decision affirming the current system under which public sector employees can be required to pay fees to the unions that represent them. Friedrichs filed a Petition for Rehearing on Friday. Petitions for rehearing are almost never granted. Nothing has changed since the Court made its decision two weeks ago. Every reason for kicking the can down the road to 2017 was already well known to the Court when the 4-4 decision was made. So why would the Court grant this petition?
Here's Friedrichs's main pitch:
"The Questions Presented in this case are too important to leave unsettled with an affirmance by an equally divided Court, and they are guaranteed to recur in the absence of a definitive ruling from this Court. Petitioners thus respectfully request that the Court rehear this case after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority."
Here's the not-so-exciting piece of history cited in the petition:
"Typically, the Court will grant rehearing in expectation of a new Justice being seated, rather than awaiting confirmation. For example, after Justice McReynolds retired on January 31, 1941, the Court affirmed several cases by an equally divided Court. The Court then granted rehearing petitions in all of these cases on April 28, 1941—before Justice Byrnes was confirmed to fill the vacancy. Kepner, 313 U.S. 597; Frank, 313 U.S. 596; Commercial Molasses, 313 U.S. 596; Toucey, 313 U.S. 596; Gray, 313 U.S. 596.
[For recent decisions and pending employment law cases, see Supreme Court Watch.]