Public-sector unions live to fight another day

The Supreme Court disappointingly, but expectedly, split 4-4 in Friedrichs v. California Teachers Association.

With Justice Antonin Scalia’s untimely death, one of the likely blockbusters of the term turned into a terse, one-sentence opinion: “The judgment is affirmed by an equally divided Court.”

“The judgment” was the Ninth Circuit’s decision, which sided with the unions on the question of whether forced union dues for public-sector workers violate the First Amendment.

At stake in Friedrichs was whether public-sector unions would continue to be permitted, under a 1977 case called Abood v. Detroit Board of Education, to take forced dues from non-members in order to fund the day-to-day activities of the union. In an alternate universe, one in which Scalia is still alive and sitting on the Court, Friedrichs would have almost assuredly overruled or severely limited Abood, essentially converting public-sector unions into “right to work” unions.

The lack of a blockbuster decision in Friedrichs is one of the most significant immediate consequences of Scalia’s death. Few issues split the Court more starkly than unions, and there were clearly irreconcilable differences among the justices.

Friedrichs was argued only Jan. 11, so the justices didn’t take too long to conclude that there was no way to decide the case with five justices in the majority, thus the thoroughly unsatisfying opinion today.

Prior to Friedrichs, two 5-4 decisions had limited the power and scope of public-sector unions. Friedrichs was the culmination of those two cases, Knox v. SEIU and Harris v. Quinn. Now the future of forced dues for public-sector workers is uncertain, but they are certainly safe for now.

And, unless a Republican wins the presidency in November, the Republicans in the Senate continue to block the nomination of Merrick Garland through the election, and the new president makes a good nomination to the Court, then it will be hard to bring a successful challenge again.

Unfortunately, given the polls and the craziness of this election year, it’s likely the opportunity won’t come up again any time soon.

Going forward, lawyers for Friedrichs have announced that they will seek rehearing. It is unclear whether such an action will be successful (it takes five votes to get a rehearing) and, furthermore, if the justices are still irreconcilably split, then this issue cannot be resolved by this eight person court. That question, like so many others, rests on this election.

Trevor Burrus is a research fellow in the Cato Institute’s Center for Constitutional Studies and managing editor of the Cato Supreme Court Review. Send comments to