How Scalia’s Death May Grant Public-Sector Unions A Reprieve

A potentially devastating ruling for organized labor may no longer come to pass.

The unexpected death of Supreme Court Justice Antonin Scalia this weekend will scramble much more than just election-year politics. It could recast several decisions pending before the high court, including arguably the most important labor case in years.

With Friedrichs v. California Teachers Association, the court’s conservative majority had the opportunity to make the entire U.S. public sector akin to a right-to-work zone. That would have given hundreds of thousands of public-sector workers the prerogative to opt out of funding the unions that represent them -- delivering a substantial blow to both organized labor and the Democratic Party it pours money into.

But with a 4-4 split in the court along ideological lines, there’s now a good chance that the lower court’s ruling in favor of the union will stand.

It didn’t always seems so. During recent oral arguments, the conservative justices appeared eager to overturn long-standing legal precedent and ban so-called fair share fees. Unions must represent all workers in a bargaining unit -- even those who don’t want representation -- so where state law allows it, workers can be required to pay fair share fees to help cover the cost of collective bargaining. For unions, such an arrangement assures that no worker gets representation for free.

For years, conservative antiunion groups have sought to ban fair share fees, and Friedrichs provided perhaps their most sweeping opportunity yet. The group of California teachers named in the suit argued that public-sector unionism is inherently political and that being forced to pay fair share fees therefore violated their First Amendment rights. If the court agreed, no member of a public-sector union in the U.S. could be compelled to pay them.

Many legal observers expected that Scalia would serve as the swing vote. In a decision years ago, the conservative justice upheld the legal rationale undergirding fair share fees, seemingly agreeing with unions that the fees were necessary to prevent workers from free-riding. But during oral arguments last month, Scalia’s line of inquiry suggested the change of heart that organized labor had feared.

"The problem is that everything that is collectively bargained with the government is within the political sphere, almost by definition," Scalia told the lawyer who argued on behalf of public unions.

Until Saturday, organized labor was fearing the worst. But now, with the likelihood of the court’s four liberal justices backing fair share fees, Friedrichs may no longer be the looming disaster for public-sector unions that it seemed.

On Saturday, Randi Weingarten, the president of the 1.6-million-member American Federation of Teachers, tweeted her condolences over Scalia's death. She was quick to add that the passing "raises lots of issues for cases like #friedrichs."

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