In a simple, one-sentence decision handed down on March 29, 2016, in Friedrichs v. California Teachers Association, the U.S. Supreme Court preserved the ability of public employee unions across the country to collect fair share fees from non-union employees in their bargaining unit. The per curiam decision simply stated: “The judgment is affirmed by an equally divided Court.”
Although the per curiam decision did not state how the court was divided, one need only look at the 5-4 decision in Harris v. Quinn in 2014, in which justices Alito, Roberts, Scalia, Kennedy, and Thomas joined to rule that an Illinois fair share fee requirement for Medicaid service employees violated the First Amendment. Justices Kagan, Ginsburg, Breyer, and Sotomayor dissented and would have upheld the requirement. Please see our alert on that decision here. Ironically, it is the vacancy created by the death of Justice Antonin Scalia, the senior member of the conservative wing of the court, that left the Supreme Court just one vote shy of striking down the California fair share fee requirement and making all public sector employment a right-to-work environment.
As the Supreme Court was evenly divided, the ruling of the Ninth Circuit Court of Appeals in favor of the California Teachers Association will stand in California. Until another challenge reaches the Supreme Court, the 39-year-old ruling in Abood v. Detroit Board of Education, 431 U.S. 209 (1977), which is hanging by a thread, will continue to apply.
This decision should provide even more incentive for the powerful teacher and public sector unions to support pro-labor candidates for the presidency and the Senate to ensure that the next member of the Supreme Court will support the constitutionality of fair share fees.
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