Without Scalia, high court gives unions reprieve

Today the U.S. Supreme Court gave a reprieve to public sector unions, which before the death of Justice Antonin Scalia faced their own imminent mortality. In a one-line per curiam opinion in a case challenging the California teachers’ union, the high court acknowledged it was divided 4-4—a result that affirms the lower court ruling in favor of the union without resolving the question nationwide.

The case came from 10 California public school teachers and the Christian Educators Association International (CEAI), an organization for Christian teachers in public schools, who argued their payments to the union were supporting speech they disagreed with. Six of the 10 teachers in the case were members of CEAI.

The California Teachers Association (CTA) spends union money on political activities, including more than $1 million for campaigning against Proposition 8, the state’s traditional marriage law. But public school teachers can opt out of those overt political payments, instead paying an agency fee that covers basic operations like collective bargaining. The Christian teachers in this case argued the agency fee still pays for speech they disagree with, including public relations campaigns against merit pay or union arguments for pay raises when the state budget is a mess.

Before Scalia’s death, the court likely had five votes to strike down the required agency fee as an infringement of free speech. Scalia had previously supported unions in a limited way, but at the January arguments he was on the Christian teachers’ side. So was Justice Anthony Kennedy.

“The union basically is making these teachers compelled riders for issues on which they strongly disagree,” Kennedy said. He described the teachers as “a whole class of persons whose speech has been silenced.”

This the likely the beginning of a number of tied decisions for which Scalia would have been the deciding vote. The Little Sisters of the Poor cases, in which religious nonprofits are challenging the contraceptive and abortifacient mandate, also seems headed for a tie—another case religious groups likely would have won with Scalia’s vote.

But another case challenging public sector unions could come before the court after it returns to a full nine justices. And SCOTUSblog reports some of the lawyers involved in the Christian teachers’ case plan to ask for a rehearing when the court returns to its full justice quota.

Some conservatives responded to the ruling Tuesday by urging Senate Republicans to continue to hold off confirmation hearings for Supreme Court nominee Merrick Garland.

“The court’s 4-4 decision demonstrates just how much rides on the next justice confirmed to the Supreme Court,” said Judicial Crisis Network’s Carrie Severino in a statement. “If the Senate confirms Merrick Garland to the Supreme Court, it will be creating a new liberal majority that will dominate the court’s decisions for a generation.”