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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January 16
The NLRB publishes its first decision since regaining a quorum; Minneapolis labor unions call for a general strike in response to the ICE killing of Renee Good; federal workers rally in DC to show support for the Protecting America’s Workforce Act.
January 15
New investigation into the Secretary of Labor; New Jersey bill to protect child content creators; NIOSH reinstates hundreds of employees.
January 14
The Supreme Court will not review its opt-in test in ADEA cases in an age discrimination and federal wage law violation case; the Fifth Circuit rules that a jury will determine whether Enterprise Products unfairly terminated a Black truck driver; and an employee at Berry Global Inc. will receive a trial after being fired for requesting medical leave for a disability-related injury.
January 13
15,000 New York City nurses go on strike; First Circuit rules against ferry employees challenging a COVID-19 vaccine mandate; New York lawmakers propose amendments to Trapped at Work Act.
January 12
Changes to EEOC voting procedures; workers tell SCOTUS to pass on collective action cases; Mamdani's plans for NYC wages.
January 11
Colorado unions revive push for pro-organizing bill, December’s jobs report shows an economic slowdown, and the NLRB begins handing down new decisions