Supreme Court's Non-Decision Today in Friedrichs

The U.S. Supreme Court issued a one line, "per curiam" order, in which it noted a 4-4 deadlock in Friedrichs v. California Teachers Association.  You'll see a bunch of news about this, some of which will be...wrong.  So I thought I would explain what actually happened.

The issues before the court primarily focused on whether the Court should overrule a prior decision, Abood v. Detroit Bd. of Education, 431 U.S. 209 (1977).  The Court in Abood held that public sector employees may be required to pay certain fees to unions under the First Amendment, provided that the unions account for how much of the fees are used for bargaining and how much are used for extraneous activity, such as political lobbying.  Those employees who wish to "opt out" of the union's political activities are given the opportunity to pay a lower, "agency" fee, allegedly representing only the bargaining costs.  

In later cases, the Court has chipped away at Abood's First Amendment reasoning. So, the Court was considering whether to overrule Abood, and hold that government employees should not be required to join unions because compelled unionization, compelled financing of unions, etc. violate their right to freedom of association under the First Amendment.  Or the Court could have decided something else.  

We're not going to find out.  The lower courts (including the Ninth Circuit in a summary decision) followed Abood as they must.  This case came before the Court in January for argument. Then Justice Scalia passed away, leaving 8 justices to render a decision.  The Court often decides cases with 8 justices, such as when one justice is recused for conflicts of interest, or when one justice has retired and is being replaced. 

Here, though, the Court deadlocked 4-4.  When that happens, everything simply returns to the status quo as if no case had ever been accepted for review. Therefore, there is no new decision today.  No "victory" for unions or anyone else. And no "loss" for anyone either.   

One can argue that Justice Scalia would have voted to overrule Abood, but one cannot say what the vote would have been if he had been alive, or what the opinions would have said.  So, all the prognostications and news headlines on this issue frankly are silly.  The only thing that is certain is that Abood remains good law and so all remains as it was. 

Also, contrary to what I read this morning, the Senate's failure to confirm Judge Garland had no impact on the decision in this case.  He was just nominated a few days ago. So his confirmation would have had to have happened instantly and THEN, the Court would have had to agree to rehear this matter.  So, no.

Have a nice day.

Greg