Scalia’s Death Saves Public Labor Unions


Few Supreme Court observers disagreed that former Justice Scalia was a vote against labor unions in Friedrichs v. California Teachers Association.  When the U.S. Supreme Court announced its decision last week it was no surprise that the lower court’s ruling would be affirmed due to a 4-4 split.

The split vote brought a very anti-climactic end to one of the most significant labor cases to reach the Court in several years. More importantly, it highlighted the impact of Justice Antonin Scalia’s death and the reason it matters who is appointed to fill his spot.

In Friedrichs, the Supreme Court was asked to address the constitutionality of public-sector union agency fees. Under laws in California and many other states, public employees who decline to join unions are still required to subsidize certain collective bargaining activities by paying a “fair share service fee,” more commonly known as an “agency fee.” Critics of the regimes maintain that they compel public employees to subsidize political speech with which they disagree in violation of the First Amendment.

The specific questions before the Supreme Court were: (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.

In Abood, the Court held that public employees could be compelled to pay an agency service fee to cover their fair share of the costs of collective bargaining, contract administration, and grievance adjustment without running afoul of the First Amendment. The Ninth Circuit Court of Appeals relied on the decision in upholding the validity of the agency fees in Friedrichs, acknowledging that it was up to the U.S. Supreme Court to determine whether Abood was still good law.

During oral arguments, the Court seemed poised to deem agency fees unconstitutional. However, the passing of Justice Scalia took away the fifth and deciding vote. While the justices likely looked for a way to avoid a 4-4 split, they were unsuccessful.

Going forward, the Supreme Court decision does not create any new precedent and provides little guidance to the lower courts. Opponents of the agency fees have already indicated that they plan to petition for a rehearing. Even if it is not granted, the Court is sure to encounter the issue again, with the newest justice likely casting the deciding vote.

While President Barak Obama has nominated Judge Merrick B. Garland of the U.S. Court of Appeals for the District of Columbia Circuit to fill the vacancy, Senate Republican leaders have pledged to delay any formal action on that nomination until after the presidential election in November. For unions, the decision is reason enough to make sure that a Democrat wins the White House and gets to replace Scalia.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Scalia’s Death Saves Public Labor Unions