Tuesday, March 29, 2016

Union Fair Share Fees Survive, by Equally Divided Court

An equally divided Supreme Court today affirmed the Ninth Circuit's ruling upholding public-sector union fair-share fees against a First Amendment challenge. The one-sentence per curiam ruling said nothing on the merits.

The case, Friedrichs v. California Teachers Association, almost surely represented the end of public-sector union fair-share fees. The Court had sent a couple signals in recent Terms that it was prepared to overturn Abood v. Detroit Board of Education, the 1977 case upholding fair-share fees, and oral arguments earlier this year suggested that this was the case to do it.

But with Justice Scalia's passing (after oral arguments in the case), the Court divided four to four, upholding the lower court, which upheld fair-share fees.

The ruling today leaves fair-share fees on the books--at least for now, unless and until Justice Scalia's replacement votes with the four traditional conservatives to overturn it in a future case. But the Court's more recent cases--the ones that teed up the challenge in Friedrichs--also stay on the books. So Abood and the Ninth Circuit ruling in Friedrichs still represent the law, but under Harris and Knox, Abood is still hanging by a thread.

The new justice will be the swing vote on this issue, and will say whether public-sector union fair-share fees stay, or go.

http://lawprofessors.typepad.com/conlaw/2016/03/union-fair-share-fees-survive-by-equally-divided-court.html

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