With yesterday’s news of Justice Scalia’s unexpected passing, the consensus seems to be that the Supreme Court will reach a split 4-4 decision in Friedrichs v. California Teachers Association. In such an occurrence, the Ninth Circuit’s decision below — which upheld California’s fair-share fee requirement pursuant to the principles announced in Abood v. Detroit Board of Education — would stand.
Although a 4-4 affirmation may be the most likely outcome, it is not the only plausible result. As some commentators have noted, the Court might decide to hold over Friedrichs (and potentially other deadlocked cases) for reargument next Term. Such a move would not be unprecedented. Although the Court has been notoriously tight-lipped about its reasons for ordering reargument, one reason seems to be where the Justices are deadlocked and the vote of an as-yet-unconfirmed Justice would break the tie. Per Stephen Wermiel of SCOTUSblog, this appears to have happened with two cases that were reargued after Justice Kennedy replaced Justice Powell, as well as with two cases that were reargued after Justice Alito replaced Justice O’Connor. In all four instances, the case was initially argued before the preceding Justice, the case was subsequently argued before the succeeding Justice, and the case was ultimately decided by a 5-4 vote.
If Friedrichs is reargued next Term, then the outcome will of course depend on who the new Justice is.
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September 16
In today’s news and commentary, the NLRB sues New York, a flight attendant sues United, and the Third Circuit considers the employment status of Uber drivers The NLRB sued New York to block a new law that would grant the state authority over private-sector labor disputes. As reported on recently by Finlay, the law, which […]
September 15
Unemployment claims rise; a federal court hands victory to government employees union; and employers fire workers over social media posts.
September 14
Workers at Boeing reject the company’s third contract proposal; NLRB Acting General Counsel William Cohen plans to sue New York over the state’s trigger bill; Air Canada flight attendants reject a tentative contract.
September 12
Zohran Mamdani calls on FIFA to end dynamic pricing for the World Cup; the San Francisco Office of Labor Standards Enforcement opens a probe into Scale AI’s labor practices; and union members organize immigration defense trainings.
September 11
California rideshare deal advances; Boeing reaches tentative agreement with union; FTC scrutinizes healthcare noncompetes.
September 10
A federal judge denies a motion by the Trump Administration to dismiss a lawsuit led by the American Federation of Government Employees against President Trump for his mass layoffs of federal workers; the Supreme Court grants a stay on a federal district court order that originally barred ICE agents from questioning and detaining individuals based on their presence at a particular location, the type of work they do, their race or ethnicity, and their accent while speaking English or Spanish; and a hospital seeks to limit OSHA's ability to cite employers for failing to halt workplace violence without a specific regulation in place.