This morning, the United States Supreme Court issued its long awaited decision in Friedrichs v. CTA. The current 8 Justices split evenly: 4 Justices voting to affirm the lower court’s decision in favor of the California Teachers Association and 4 Justices voting to overturn the lower court’s decision. Because it was a tie, the lower court’s decision upholding agency fee requirements in public sector bargaining units stands. The 4:4 vote signals that potential swing voter Justice Anthony Kennedy, voted to overrule Abood v. Detroit Board of Education and to invalidate agency fee requirements, as most certainly did Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. Justice Scalia, who died last month certainly would have also voted to invalidate public sector agency fees.
Another case raising this question could well reach the Supreme Court next term and the outcome will likely depend on who replaces Justice Scalia. That question will be answered by the political process -- either by the Senate’s decision about President Obama’s nomination of Judge Merrick Garland, or by the outcome of the Presidential election this fall, and who that President nominates to the Court.