Weekend News & Commentary — April 9–10, 2016

The petitioners in Friedrichs v. California Teachers Ass’n have formally submitted a request for reargument to the Supreme Court, reports Lyle Denniston of SCOTUSblog. Specifically, the petitioners ask the Court to “rehear [Friedrichs] after it obtains a full complement of Justices capable of reaching resolution by a five-Justice majority.” They argue that the case presents questions of “profound nation wide importance” and that “[t]here is a circuit split over certain aspects of [California’s public-sector agency-fee scheme], and similar schemes affect tens of thousands of public employees every year.” The petitioners also note that “there are multiple cases pending in the lower courts that implicate the Questions Presented,” and suggest that “[r]ather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this Court has already agreed to decide until it is capable of issuing a decision.”

However, Denniston observes that “[p]ersuading the Court to grant rehearing is a difficult proposition as a general matter,” and “is made more difficult by the specific requirements that the Court’s rules outline for action on such a request”:

Rehearing can only be granted, following such a request by lawyers in a case, if that request has the support of at least one Justice who had voted for the result for which a rehearing is being sought.  And rehearing can be granted only if a majority of the Court votes in favor of doing so.

With only an eight-Justice Court, however, it is not entirely clear which group of Justices on opposite sides of a four-to-four split would be the ones eligible to call for rehearing in response to a lawyer’s request.  Both blocs in such a tied situation may be said to have voted for the result — that is, disposing of the case because it could not assemble a majority.

As for the impact of the confirmation of a new Justice while the rehearing petition is under consideration, Denniston notes that “it has been the customary practice that the new member would not vote on whether to grant rehearing but — if rehearing were to be granted — could then take a full part in the process.”

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Today’s News & Commentary — March 29, 2016

The major story today is the Supreme Court’s ruling in Friedrichs v. California Teachers Association, upholding public-sector union agency fees.  The Atlantic and The New York Times have more on the decision.  Our complete coverage of the case can be found here.

California’s move to gradually raise the state minimum wage to $15 an hour has also garnered headlines.  Writing for The Washington Post, Jim Tankersley and Lydia DePillis note that it would give California the highest state minimum wage in the country and “would put the state in uncharted territory, carrying both hope and danger for workers in the nation’s largest economy.”  In The New York Times, Noam Scheiber and Ian Lovett report that “by moving toward a plan to raise the statewide minimum wage to $15 an hour by 2022, the state could raise living standards for millions of workers.  But it could also increase unemployment among some of the very same economically marginal workers the wage increase is intended to help.”

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Friedrichs Opinion

In case you missed it, the Supreme Court has handed down a 4-4 affirmance of the lower court’s opinion in Friedrichs v. California Teachers Association. The Court’s 1977 opinion in Abood v. Detroit Board of Education thus remains good law, and public-sector unions may continue to collect agency fees from nonmembers.

What Scalia’s Replacement Could Mean for Workers

If Justice Scalia’s replacement is progressive, the Supreme Court will have a five-Justice liberal majority for the first time in decades.  Given the significant number five-to-four decisions limiting the rights of and protections for workers, the importance of confirming a progressive is enormous.  Most of the attention has understandably focused on Friedrichs v. California Teachers Association, and for good reason.  Without Justice Scalia, the Court appears to lack the fifth vote necessary to eliminate fair share fees in public sector labor agreements.  And Scalia’s death should put the brakes on National Right to Work’s effort to speed a case to the Court asking it to eliminate exclusive representation for home care workers or, perhaps, even for all public sector workers.  Not only that, but a newly-constituted Court might decide that Harris v. Quinn was wrong to eliminate fair share fees for home care workers and that Knox v. SEIU Local 1000 was wrong to prohibit unions from charging nonmembers for mid-term assessments.

But an astonishingly large number of cases limiting rights and protections for workers were also decided five-to-four with Justice Scalia in the majority.  Here are some cases that warrant reconsideration by a Court with a liberal majority.

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Today’s News & Commentary — February 18, 2016

What should the Supreme Court do with Friedrichs now that only eight Justices remain on the bench? If it were up to the Center for Individual Rights — which, along with Michael Carvin of Jones Day, represents the Friedrichs petitioners — the Court would rehear the case next Term before a full complement of Justices rather than hand down a 4-4 affirmance this Term. The Daily Signal reports that Terry Pell, the organization’s president, is claiming that lead plaintiff Rebecca Friedrichs “believes the case needs to go before the justices again.” In the words of Pell: “[Friedrichs] is obviously sad about Justice Scalia’s passing and is concerned about the effect that has on the case, so I think she fully recognizes the need to press forward and get a full rehearing in order to get an authoritative decision from the court.” Accordingly, the organization “is pushing the high court to rehear the case after a new justice is confirmed to the bench.”

Changes are coming to the way that Walmart schedules its workers. But are the changes enough? Lydia DePillis of the Washington Post takes a closer look at the conglomerate’s recent announcement that it would offer new scheduling options to its employees by the end of the year. Currently, most Walmart stores use a system of “open shifts,” whereby “managers schedule workers within the times the employees said they’re available.”  However, in a purported effort to “improv[e] the daily experience for employees,” the company “plans to make two more options available: Fixed shifts, which guarantee the same weekly hours for as long as a year, and flex shifts, which allow associates to build their own schedules from the hours available, in roughly two-and-a-half-week increments.” Yet DePillis reports that OUR Walmart — which stands for Organization United for Respect at Walmart — “was critical of the new changes, which don’t explicitly guarantee more hours for part-time workers who want them.” In a statement, the group contended that “[f]or workers who have been speaking out, protesting, and fasting for $15 and full-time hours, [Walmart’s] announcement represents a hard-won victory, but without increased pay or additional hours, it falls short of what most associates need to support their families, and or what is needed to improve customer service.”

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Tie Votes in the Supreme Court

Relevant to our earlier discussion of how Justice Scalia’s passing affects Friedrichs, University of Denver Professor Justin Pidot recently posted a draft paper regarding tie votes in the Supreme Court. In his paper, Professor Pidot contends that ties not only “cause mischief because they leave legal issues undecided,” but also “pose a threat to the Court’s perceived legitimacy” insofar as they operate as “an admission that the justices have failed to fulfill their job responsibilities because they could find no manner of resolving a case that was acceptable to a majority of the court.”

Analyzing tie-vote cases from 1925 to 2015, Professor Pidot suggests that “there is no pressing need to create a tie-breaker where the Supreme Court is deadlocked” because “where a case ends in a tie, the issue involved is either presented to the Supreme Court again in relatively short order or turns out to be of little significance.”

Accordingly, Professor Pidot calls upon the Court to “abandon the practice of affirming by equal division and instead dismiss [tied] cases as improvidently granted”:

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Justice Scalia and Friedrichs

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.