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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July 15
U.S. labor productivity climbs at its fastest pace in decades; a federal judge grants a preliminary injunction to anti-abortion groups challenging Michigan’s civil rights law; and Jackson, Mississippi’s bus workers walk off the job.
July 14
DOJ opens investigation of UAW president; LIUNA protests Pfizer building collapse; national park workers unionize
July 13
New York Times files retaliation suit against the EEOC; US government pushes back TPS designation termination for Haiti; federal judge grants preliminary injunction to federal workers seeking reasonable telework accommodations.
July 12
Postal workers demand investigation into Atlanta distribution center conditions following deaths; University of Chicago Press Workers vote to unionize.
July 10
Brigham and Women’s Hospital locks out 4,000 nurses after one-day strike; appeal filed challenging agency-shop agreements.
July 9
The Second Circuit declines to vacate an arbitration award over a nursing union dispute; federal workers sue the Department of Defense for termination of union contracts; New York City announces settlement with companies for violating New York work laws.