Without Justice Scalia, the union wins in Friedrichs

The five-Justice majority that had been expected to reverse Friedrichs v. California Teachers Association has just been reduced to four, due to the death of Justice Antonin Scalia on February 13. This undoubtedly leaves the Supreme Court divided four-to-four.

When that happens, the Court typically issues a one-line order saying that the case is “affirmed by an equally divided Court.” No commentary. No complex opinion. Actually, no opinion at all.

In the Friedrichs case, a group of non-union teachers is asking the US Supreme Court to overrule Abood v. Detroit Bd. of Ed. (US Supreme Court 1977) and hold that public-sector “agency shop” arrangements violate the 1st Amendment.

The case comes up from the Ninth Circuit, where the union won. So “affirmed by an equally divided Court” would mean that the Ninth Circuit's decision remains intact as if the case had never got to the Supreme Court in the first place.

There are other possible scenarios, but these seem highly unlikely. A new Justice could be appointed and confirmed relatively soon, but the current political climate makes that a million-to-one shot. The Court could hold the case over until next year when the appointment and confirmation of a new Justice will be more likely. But why would the Court do that? As important as the Friedrichs case is to those of us who pay attention to labor law issues, it really lacks enough importance on the grander scale.