Justice Scalia’s death may mean reprieve for public sector unions

It would be considered bad form for union leaders to publicly celebrate the death of conservative U.S. Supreme Court Justice Antonin Scalia, but privately, there’s a pervasive sense of having dodged a bullet. That bullet, aimed by union foes at the heart of organized labor, was a pending case called Friedrichs vs. California Teachers Association. Plaintiffs are asking the Supreme Court to impose so-called “right-to-work” status on all public employees in the United States, arguing that requiring public sector union members to pay dues — even though they benefit from union contracts — would violate the First Amendment.

Antonin Scalia
Antonin Scalia, 1936-2016

Based on questions justices asked when the Court heard oral argument in the case Jan. 11, it looked like there was a 5-4 majority in favor of overturning a previous court decision that declared it constitutional for public sector unions to require dues or some equivalent. Currently, under the 1977 Abood decision, the question is left up to the states.

Scalia’s Feb. 13 death means the Court is now more likely split 4-4 between conservative and liberal judges. But that’s not certain. The Court is supposed to issue a decision by June, but if it’s split, then the lower court decision upholding the status quo stands. It’s also possible the Court could order the case to be re-argued next year, after a new justice is appointed.

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