Death of Supreme Court Justice Antonin Scalia and Implications for Friedrichs v. CTA

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Post UPDATED on February 15, 2016. Click here to go directly to the update.

On January 11, 2016, the U.S. Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case with serious implications for public-sector unions. The court’s decision was expected in late spring or early summer 2016.

With the sudden passing of Justice Antonin Scalia on February 13, a question on many minds is what will happen to cases on the docket for the current SCOTUS term. For union members and supporters, Friedrichs v. CTA is among the most pressing.

The central elements of Friedrichs v. CTA are explained in the national AAUP’s amicus brief, filed before the Supreme Court in November 2015:

The Supreme Court accepted two questions for review:

(1) Whether Abood v. Detroit Board of Education should be overruled and public-sector “agency shop” arrangements invalidated under the First Amendment; and

(2) whether it violates the First Amendment to require that public employees affirmatively object to subsidizing nonchargeable speech by public-sector unions, rather than requiring that employees affirmatively consent to subsidizing such speech.

During the oral arguments in January, questions and reactions by the SCOTUS justices hinted strongly that a 5-4 decision against CTA (meaning answers of “yes” to both of the above questions) would be the likely outcome.

On SCOTUSblog, constitutional law expert Tom Goldstein writes that

Votes that the Justice cast in cases that have not been publicly decided are void. Of course, if Justice Scalia’s vote was not necessary to the outcome – for example, if he was in the dissent or if the majority included more than five Justices – then the case will still be decided, only by an eight-member Court.

However, noting that “The most immediate and important implications involve [the] union case” (i.e., Friedrichs v. CTA), Goldstein adds that

If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.

In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case. Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is ‘affirmed by an equally divided Court.’

He concludes that “A conservative ruling” in Friedrichs v. CTA “is now unlikely to issue.”

This means that at least for the time being, the lower court’s decision, in this case the U.S. Court of Appeals for the 9th Circuit, is likely to stand. In an expedited decision that the plaintiffs had sought in an effort to get the case before what they believed would be a sympathetic SCOTUS majority, the 9th Circuit affirmed in November 2014 a federal district court’s earlier ruling against the plaintiffs:

[T]he questions presented in this appeal are so insubstantial as not to require further argument, because they are governed by controlling Supreme Court and Ninth Circuit precedent. . . . Accordingly, we summarily affirm the district court’s judgment.

But now with an eight-member Supreme Court from which a 4-4 vote is likely, the 9th Circuit’s affirmation to uphold existing fair share rules and opt-out procedures will stand, at least for the time being.

UPDATE: Today (February 15, 2016), Tom Goldstein at SCOTUSblog writes:

Tie votes will lead to reargument, not affirmance

I previously wrote that cases in which the Supreme Court is divided four to four after Justice Scalia’s death would be “affirmed by an equally divided Court.”  I now believe that is wrong.  There is historical precedent for this circumstance that points to the Court ordering the cases reargued once a new Justice is confirmed.

Whether that precedent will be followed is not perfectly clear, because it is uncertain when a new Justice will replace Justice Scalia.  It could be as long as a year from now – well into the Court’s next Term.  But it is also possible there will be a new Justice when the Court returns from its upcoming summer recess.  Because the Court follows tradition when possible, I think the most likely outcome by far is that the Court will order the affected cases reargued next Term.


The practice of holding reargument is important for three kinds of cases that are now pending. First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court. It could well lose if Justice Scalia is succeeded by another conservative.

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