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

Image of Supreme Court of the United States

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.

Links to more information:



AAUP Response to Oral Arguments in Friedrichs v. California Teachers Association

The following is reposted from

AAUP Responds to Friedrichs Oral Arguments

Washington, DC — Today, the Supreme Court heard oral arguments in Friedrichs v. California Teachers Association, a case which threatens to reverse decades-old decisions allowing for the collection of fair share fees from public employees. The case has far-reaching consequences for American workers, students and the public. Fair share fees fund a range of activities that improve the quality of education and the wellbeing of students as well as educators.

Howard Bunsis, chair of the AAUP-Collective Bargaining Congress, said, “The Friedrichs case is an attack on workers’ rights to bargain collectively, an attack on workplace democracy, and an attack on the middle class. It is also a call to organize; attempts to divide us will not work.”

Rudy Fichtenbaum, AAUP president, said, “In higher education, strong unions not only promote quality education for students and economic security for educators, they protect academic freedom and shared governance. It is only fair for workers to pay their fair share.”

Risa Lieberwitz, AAUP general counsel, said, “As the AAUP/AFT joint amicus brief explains, collective bargaining, supported by the fair share agency fee system, significantly benefits the educational system.  Agency fee arrangements fairly balance the interests of nonmembers with the state’s and union’s interests in requiring them to pay their fair share of the costs of negotiating a collective bargaining agreement that benefits members and nonmembers alike.”

More information on the case and the amicus brief filed by the AAUP is available here.

The mission of the American Association of University Professors (AAUP) is to advance academic freedom and shared governance; to define fundamental professional values and standards for higher education; to promote the economic security of faculty, academic professionals, graduate students, post-doctoral fellows, and all those engaged in teaching and research in higher education; to help the higher education community organize to make our goals a reality; and to ensure higher education’s contribution to the common good. Founded in 1915, the AAUP has helped to shape American higher education by developing the standards and procedures that maintain the quality in education and academic freedom in this country’s colleges and universities.

Media Contact:
Risa Lieberwitz, AAUP General Counsel, (607) 592-5662,
Howard Bunsis, AAUP Collective Bargaining Congress Chair, (734) 487-1070,
Publication Date:
Monday, January 11, 2016

Click here to read an analysis of today’s oral arguments on SCOTUSblog.

Click here to read the transcript of today’s arguments.

Click here for our previous post on the WMU-AAUP blog re. Friedrichs v. CTA.

A decision on the case is expected in June.

SCOTUSblog preview: New threat to public-sector unions

An analysis posted today on SCOTUSblog previews arguments to be presented next week in Friedrichs v. California Teachers Association, a case that could have serious implications for public-sector unions:

Next Monday, January 11, when the Supreme Court returns from its holiday recess, it will devote an expanded argument to a case that has made unions which represent government workers deeply fearful for their financial future and their public stature.  A significant blow to their treasuries could come if non-union workers are able to turn broad hints by the Supreme Court into final victory in Friedrichs v. California Teachers Association.

Read the full SCOTUSblog post here.

This excerpt from the AAUP’s amicus brief explains the questions that the Supreme Court will take up:

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.

The AAUP amicus brief can be read in its entirety here.

A decision on the case is expected in late spring or early summer.

WMU-AAUP passes resolution opposing repeal of Michigan’s prevailing wage laws

The WMU-AAUP has passed the following resolution in an electronic vote by the faculty, concluded on June 25, 2015, with 94.5% voting to approve.

Click here to read more about the process leading up to the faculty vote.

Click here for more information about the repeal bills and links to additional information about prevailing wage laws, including scholarly studies on economic impacts that informed the language of the resolution.

APPROVED: WMU-AAUP Resolution Opposing Repeal of Prevailing Wage Law

WHEREAS our investigation into potential costs and benefits shows that there is strong evidence presented by labor and employment economists that repealing prevailing wage laws results in adverse economic impact to workers and families;

Whereas researchers have documented significant losses in earnings for workers in states that repeal prevailing wage laws and project similar losses in states considering repeal;

Whereas average total compensation for all workers is higher in states with prevailing wage laws than in states that have never had prevailing wage laws or have repealed them;

Whereas economists forecast significant job losses in states considering repeal of prevailing wage laws;

Whereas lost wages in the construction industry cause ripple effects throughout the state’s economy, including adverse economic effects for citizens in non-construction sectors;

Whereas states that repeal prevailing wage laws experience decreased income and sales tax revenues;

Whereas repeal of prevailing wage law would result in substantial direct and indirect costs to the citizens of Michigan that would far outpace any theoretical savings that repeal proponents claim would accrue;

Whereas occurrences of occupational injuries are significantly higher in states without prevailing wage laws, causing economic hardship to families and economic costs to the state in the form of increased worker compensation claims;

Whereas construction costs in states without prevailing wage laws are comparable to or higher than those in states with prevailing wage laws;

THEREFORE, BE IT RESOLVED that the Western Michigan University chapter of the American Association of University Professors opposes the repeal of Michigan’s prevailing wage laws.

Information about Michigan’s Prevailing Wage Laws

Information about efforts to repeal Michigan’s prevailing wage law
in support of the WMU-AAUP Draft Resolution Opposing Repeal
(June 2015)

Updated July 1, 2015: Resolution PASSED.

View the resolution here.


Status of bills in Michigan State Legislature

Three bills that would repeal Michigan’s prevailing-wage laws (Senate Bills 1, 2, and 3) passed the Michigan Senate on May 14, 2015. All 10 Democratic state senators voted against the repeal, along with five Republicans who broke ranks to oppose the measure, while 22 Republican senators voted in favor of repeal. Prevailing wage laws require that workers employed on state-funded construction projects be paid union-scale wages and benefits.

While Gov. Snyder has not announced unequivocally that he will veto the bills, he has expressed strong opposition to them. MLive reported in May that the governor believes that “repealing the prevailing wage law. . . could hurt his plan to build the state’s skilled trades workforce.” 

Despite the possibility of a veto, these bills could still become law. Anticipating a veto, organizations who are pushing for repeal have announced a petition drive that would end-run the governor. MLive reports:

Michigan’s Constitution provides a path for citizens to send bills to Lansing. Once there, the Legislature has 40 days to enact a measure into law by way of a majority vote in each chamber — or let it go to the statewide ballot.

But a ballot proposal isn’t in the cards. [House Speaker Kevin] Cotter and Senate Majority Leader Arlan Meekhof, R-West Olive, both want to complete the repeal process in the state Legislature by the end of the year.

Although the Detroit News reported on June 15 that “More than 59 percent of likely voters support maintaining Michigan’s prevailing wage, a more than 2-1 advantage over the 25 percent of voters who want the law scrapped, according to a statewide poll,” supporters of the repeal have deep pockets and powerful friends and could easily collect the required 250,000 signatures.

Links to news articles and other information about the repeal legislation

Poll: Voters want to keep prevailing wage law
Detroit News, June 16, 2015

In next strike against unions, GOP states go after wage laws
Associated Press, June 15, 2015

Debate rages on whether ‘prevailing wage” repeal would save state money
Bridge Magazine/Crain’s Detroit Business, June 15, 2015

Republican leaders ready to go around Gov. Rick Snyder on prevailing wage repeal
MLive, May 28, 2015

Prevailing wage supporters plan defense as repeal petitions are approved for circulation
MLive, May 27, 2015

Senate votes 22-15 to repeal prevailing wage laws
Detroit Free Press, May 14, 2015

Prevailing wage and repeal legislation language
(Source: Michigan Legislature, Michigan Compiled Laws)

Who is behind the effort to repeal prevailing wage laws?

Prevailing Wage Repeal Act
Model Legislation, American Legislative Exchange Council (ALEC)

ALEC, NFIB Push Prevailing Wage Repeal
PR Watch, March 24, 2015

Studies of economic impacts of repealing prevailing wage laws

Duncan, Kevin, and Alex Lantsberg (2015). “How Weakening Wisconsin’s Prevailing Wage Policy Would Affect Public Construction Costs and Economic Activity.” Smart Cities Prevail.

Kelsay, Michael P., James I. Sturgeon, and Kelly D. Pinkham (2011). “The Adverse Economic Impact from Repeal of the Prevailing Wage Law in Missouri.” Council for Promoting American Business.

Mahalia, Nooshin (2008). “Prevailing Wages and Government Contracting Costs: A Review of the Research.” Economic Policy Institute Briefing Paper #215.

Manzo IV, Frank, and LeNee Carroll (2014). “Self-Sufficient Construction Workers: Why Prevailing Wage Laws Are the Best Deal for Taxpayers.” Illinois Economic Policy Institute.

Manzo IV, Frank, and Robert Bruno (2014). “Labor Unions, Prevailing Wage Laws, and Right-to-Work Laws in the Construction Industry.” Illinois Economic Policy Institute.

O’Leary, Sean (2015). “West Virginia’s Prevailing Wage: Good for Business, Good for Workers.” West Virginia Center on Budget and Policy.

Philips, Peter (2006). “Quality Construction, Strong Communities: The Effect of Prevailing Wage Regulation on the Construction Industry in Iowa.” University of Utah.

Philips, Peter (1998). “Kansas and Prevailing Wage Legislation.” Kansas Senate Labor and Industries Committee.

Price, Mark, and Stephen Herzenberg (2011). “The Benefits of State Prevailing Wage Laws: Better Jobs and More Productive Competition in the Construction Industry.” Keystone Research: Policy Ideas for Pennsylvania in the New Economy.

Quesada, Alison Dickson; Frank Manzo IV, Dale Belman, and Robert Bruno (2013). “A Weakened State: The Economic and Social Impacts of Repeal of the Prevailing Wage Law in Illinois.” University of Illinois at Champaign-Urbana School of Labor and Employment Relations.

Vincent, Jeff (2005). “Analysis of School Construction Costs in Ohio and Indiana.” Institute for the Study of Labor in Society, Indiana University.