A Scalia-less, Deadlocked Supreme Court Has Spared Unions...For Now

When Justice Antonin Scalia died, virtually every labor activist in the country thought one thing: “Friedrichs?” Now, the Supreme Court has announced its decision on the case in question—and all those labor activists are breathing a sigh of relief.


In January, the Supreme Court heard Friedrichs v. California Teachers Association, a case brought by anti-union groups to explicitly weaken public sector unions by allowing non-members to refuse to pay a fee for the representation they receive from the union. Longstanding precedent said that these workers did not have to pay for union political activity but did have to pay a fee for collective bargaining and other representation … but opponents of unions calculated that the time had come when the court would overturn that. Scalia himself was seen as a critical swing vote on this issue. He had stood by the precedent requiring fair share fees in the past, but in 2014, he had voted to chip away at the workers covered by that in Harris v. Quinn. The stakes were high:

One brief in the case indicates that in states where teachers are covered by collective bargaining but aren't forced to pay agency fees, about 34 percent are "free riders." Moreover, states that have the compulsory fees for workers have much higher union membership in the public sector—an average of nearly 50 percent—compared with states where such fees are banned (17 percent). 

Again, we’re talking about workers paying for things unions do that directly benefit them: Bargaining contracts with better pay and working conditions, and representing them in grievances. And where workers don’t have to pay a fee, they still get the same level of representation as their coworkers who are union members. Antonin Scalia seemed prepared to join in Justice Samuel Alito’s anti-worker crusade and dramatically weaken unions by forcing them to represent non-members for free. And then he died, and the decision we get is:

The judgment is affirmed by an equally divided Court.

That means the precedent stands and unions aren’t gutted. At least as long as Scalia isn’t replaced by another hardcore conservative, anti-union vote on the court. That’s our fight now.

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