March 29, 2016
By Ian Millhiser
When the Supreme Court met last January to hear an aggressive attempt to defund public sector unions, the news looked grim for organized workers. All five of the Court’s conservatives seemed ready to accept the plaintiffs’ legal arguments, a result that would have potentially had catastrophic financial consequences for many unions.
Then Justice Antonin Scalia died, and the anti-union litigants lost the fifth vote they needed to prevail.
On Tuesday, the Supreme Court announced the widely expected consequence of Scalia’s encounter with his own mortality. In a single-sentence order, the Supreme Court announced that the judgment of a lower court rejecting this effort to defund public sector unions “is affirmed by an equally divided court.” Friedrichs v. California Teachers Association is dead. A four-decade-old opinion protecting public sector unions shall live to see another day.
Friedrichs was an attack on what are alternatively called “agency fees” or “fair share fees.” As ThinkProgress previously explained,
Unions are required by law to bargain on behalf of every worker in a unionized shop, even if those workers opt not to join the union. As such, non-members receive the same higher wages (one study found that workers in unionized shops enjoy a wage premium of nearly 12 percent) and benefits enjoyed by their coworkers who belong to the union.The purpose of these fees is to ensure that non-members do not get something for nothing; they require those non-members to pay their share of the costs of obtaining the benefits of being in a union.
Absent something else, this arrangement would create a free-rider problem, because individual workers have little incentive to join the union if they know they will get all the benefits of unionizing regardless of whether they reimburse the union for its costs. Eventually, unions risk becoming starved for funds and collapsing, causing the workers once represented by a union to lose the benefits of collective bargaining.
To prevent this free-rider problem, union contracts often include a provision requiring non-members to pay agency fees.
Prior to Friedrichs, the Court took two incremental steps in the direction of an eventual decision abolishing agency fees. Friedrichs was widely expected to be that decision. Instead, with the Court split 4-4, Friedrichs will have no effect and the Court’s previous precedents permitting agency fees will remain good law, binding on all lower court judges.
Ultimately, however, Tuesdays’ non-decision in Friedrichs only heightens the stakes in the battle to replace Scalia. If Scalia is replaced by a relatively liberal justice, whether that new justice is Supreme Court nominee Merrick Garland or someone else, then it is exceedingly likely that agency fees will continue to be legal. Should Scalia be replaced by another conservative, however, then Tuesday’s order will likely provide to be only a brief stay of execution for public sector unions.