Justice Antonin Scalia’s unexpected death Saturday at the age of 79 could reverse the expected outcome of several big cases on the court’s docket — including one dispute that was set to deal a severe blow to public unions in America.
That case, Friedrichs v. California Teachers Association, raised the question of whether public-sector workers should be forced to pay “agency fees” to the unions that negotiate their employment contracts.
A ruling against the teachers association could have drained public-sector unions of cash from any worker who didn’t want to pay, in a major victory for conservatives trying to crush collective bargaining.
Four of the five conservative-leaning justices — including Scalia and swing voter Anthony Kennedy — seemed hostile to the union’s argument last month when the court heard the case, as The New York Times pointed out. The court had yet to issue a decision, though, so Scalia’s opinion won’t count. (According to SCOTUSblog, votes Scalia cast that have not been publicly decided are void.)
“The Supreme Court has been aggressively curtailing unions. It was expected to overturn 5-4 longstanding precedents requiring public employees who aren’t members to pay their fair share of collective-bargaining costs,” UCLA law professor Adam Winkler told Business Insider in an email. “Now that decision is likely to be 4-4. That means the lower-court ruling, which sided with the union, will be upheld.”
The Obama administration had asked the high court not to overturn the lower-court ruling siding with the unions. That means this case could be the “biggest boon for the administration in terms of cases that have already been heard,” George Washington Law School professor Jonathan Turley told Business Insider in an email.
Here are other significant cases that could be affected by Scalia’s death:
Fisher v. University of Texas — In December, the high court heard a case that revolves around whether it’s legal for colleges to consider applicants’ race to ensure a diverse student body. This case is highly unusual because Justice Elena Kagan had already recused herself, so only seven justices will vote on it.
Before Scalia’s death, the best outcome affirmative action proponents could have hoped for was a tie. (In the event of a tie, the lower court decision stands and no Supreme Court precedent is set for future cases.) Now, if Kennedy sides with the liberals, they may have a decisive victory.
The United States v. Texas — In April, the Supreme Court is going to hear a challenge to President Barack Obama’s plan to allow millions of undocumented workers to keep working legally in the US. A federal appeals court in New Orleans has already struck down that plan, so the possibility of a tie would not be good for the Obama administration because that opinion would stand.
“The president’s immigration order has been struck down and I have little confidence that there are more than four votes to reverse,” Carter Phillips, who’s argued 73 cases before the Supreme Court, told Business Insider, “but that one is a little harder to predict until we see how the briefing and argument play out.”
Whole Women’s Health v. Cole — Next month, the Supreme Court will hear its first big abortion case since 2007 — and it will do so without Scalia, who almost certainly would have sided with abortion opponents. The case challenges a Texas law that would put such strict limits on abortion clinics that it would leave only 10 abortion clinics in the entire state of Texas (down from 40), as The New York Times’ Adam Liptak has noted.
When the high court took up the case, Liptak wrote that it had the “potential to affect millions of women and to revise the constitutional principles governing abortion rights.”
Of course, Liptak made that comment before Scalia’s death — and before it was possible for there to be a tie. A federal appeals court in New Orleans has upheld most of the law, so a tie would leave that decision in place but would not create precedent for future appeals courts to rule on.
The high court may end up taking the case again in the event of a tie, and if Obama is able to put someone on the bench, a liberal justice could have the decisive vote.
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