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* LA Times…
The anti-union lawsuit known as Friedrichs vs. California Teachers Assn. is widely viewed as one of the leading casualties of Supreme Court Justice Antonin Scalia’s death.
What’s less well-known is how the anti-union plaintiffs connived to fast-track the case through the federal judiciary in order to get it before the court while it still harbored a conservative majority. Their method was to encourage the lower courts to rule against them, so they could file a quick appeal. But Scalia’s passing is likely to leave a 4-4 deadlock over the case, so the last ruling, in which the U.S. 9th Circuit Court of Appeals ruled for the teachers union, remains in force. […]
Abood as a precedent has withstood previous attacks, but the conservative Supreme Court majority had begun to signal that it was primed to overturn Abood, notably in cases in 2012 and 2014. Friedrichs was the stiffest test yet.
Plainly aware that Abood was hanging by a thread, the Center for Individual Rights strived to speed the Friedrichs case through the lower court after it was filed in 2013. It did so by conceding in both federal court in Santa Ana and at the 9th Circuit that both would be bound by the Abood precedent; therefore, it asked both courts to simply rule in the teacher union’s favor so it could promptly carry the appeal to the Supreme Court. Both lower courts did so. […]
The implications of Scalia’s death for Friedrichs are a bit uncertain. Some experts say the appellate ruling in favor of the union would be effectively affirmed by an evenly divided court. Others believe the court will ask for re-argument of the same case next term, presumably after it gets back up to full nine-member strength by the appointment and confirmation of successor to Scalia.
It would only be affirmed for the 9th Circuit “as if the Supreme Court had never heard the case.” And the losing side could probably come back next term either way, unless the President gets someone onto the court before the end of this term or a Democrat wins the White House.
* Unions appear to realize the temporary nature of their “victory”…
In a statement Sunday, Joshua Pechthalt, president of the California Federation of Teachers said that Scalia’s death “is likely to result in a delay of the Friedrichs case but it’s not certain and I think the public sector unions and the education unions have to continue the organizing we have been doing with the assumption nothing has changed.”
Last week, in a little-noticed case called D’Agostino v. Baker, the National Right to Work Legal Defense Foundation lost at the First Circuit in their attempt to argue that the First Amendment does not allow exclusive representation of home healthcare workers. This case sought to expand the Harris holding by arguing that the First Amendment prohibits home healthcare unions not only from collecting fees from workers who don’t want to pay, but also from bargaining on behalf of any worker who doesn’t opt to be a member.
Former Supreme Court Justice David Souter wrote the decision for the First Circuit in D’Agnostino, relying heavily on Abood and its progeny. If history is any indication, National Right to Work was planning on appealing this case to the Supreme Court. The case provided a glimpse of what the likely post-Friedrichs plan of attack would have been: After you win on the dues front, go after membership. […]
Therefore, unlike other cases on the Court’s docket, if Friedrichs goes away quietly, it will stay gone until there is another conservative majority.
And that could be next year or even further into the future if the GOP loses the presidential race.
* Riopell writes about the Rauner angle…
A U.S. Supreme Court case that could affect Gov. Bruce Rauner’s move to do away with union’s so-called “fair share” payments is among those thrown into question by the death of Justice Antonin Scalia.
Rauner signed an executive order last year saying state workers who don’t want to join their union don’t have to pay fees — typically less than union dues — to help with bargaining costs.
But while that move is tied up in court, the U.S. Supreme Court is reviewing a California case on the same issue that unions have characterized as a possible threat to their future. […]
Rauner and Illinois aren’t parties to the case, but the governor filed a brief on the plaintiff’s side, arguing the fees shouldn’t be required.
By the way, last Friday West Virginia became the 26th state to approve a so-called “right to work” law, in this case, over the governor’s veto.
posted by Rich Miller
Tuesday, Feb 16, 16 @ 10:58 am
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This was the first case that came to mind when I learned of his passing. Things are going to get interesting for sure. Hopefully it will slow down the union bashing by the current IL Governor but I’m not holding my breath. Something has to give at some point.
Comment by Wow Tuesday, Feb 16, 16 @ 11:13 am
The unions get a sure, but limited, win for now. The best outcome for the unions would have been a win at SCOTUS, but that was going to be iffy at best.
The national election this year was already going to have a big impact; this just upped the importance.
Comment by RNUG Tuesday, Feb 16, 16 @ 11:19 am
I am so thankful for even a brief reprieve from this case. It also I’m sure changes the calculus with the Governors assault on Labor. How it does I’m not sure. Either he might settle for Labor peace or he might double down and go for the Strike.
Comment by Honeybear Tuesday, Feb 16, 16 @ 11:23 am
Look for Roberts to hold case in abeyance pending a rehearing . It is entirely his call which cases get held or proceed to disposition
Comment by Sue Tuesday, Feb 16, 16 @ 11:30 am
It’s a reprieve for unions–for now. It gives them a new opportunity to one day uphold Abood and get favorable rulings in the future.
Scalia supported fair share fees in other cases. He did not seem to support them for public unions in Friedrichs, so the court appeared poised to strike fair share fees down.
Until something changes, such as SCOTUS’ make-up, this appears to be a stunning defeat for Rauner and victory for AFSCME.
Comment by Grandson of Man Tuesday, Feb 16, 16 @ 11:39 am
From a practical standpoint, this puts a crimp in the push to bust unions, but it’s doubtful the superstars will be able to see beyond their ideological blinders in the short term to recognize it. Eventually, the weakening of their position will become apparent even to them, but it’ll probably be a few months.
The bigger issue is the future composition of the court, which could mean a big shift away from the anti-labor, anti-little guy outlook of the recent years. (There’s an interesting article on Bloomberg.com today about Scalia’s assiduous efforts to limit access.)
One interesting development: the national GOP’s unforced error re SC appointments, plus the shambles that is the GOP nominating race so far, could help increase the likelihood of a Dem WH victory=more liberal appointment to fill the vacancy. The unions are right not to count their chickens, etc., but Friederichs might well be kaput for the long term.
Comment by Crispy Tuesday, Feb 16, 16 @ 11:44 am
All I know is when I heard about the impact on this particular case, in my mind I heard Honeybear say, “thank a loving God” sounding exactly like Nadia Bolz-Weber for some reason.
Comment by AC Tuesday, Feb 16, 16 @ 11:45 am
If the significance of the case drives the Eight Survivors, the case will be held for rehearing. If the consensus is they as a group didn’t really want to deal with this anyway, it’ll go out as a 4-4 split that leaves the 9th Circuit ruling as the law of the case. My guess is the former. Execution is stayed…
Comment by Independent retired lawyer, journalist Tuesday, Feb 16, 16 @ 11:48 am
Just wait until Scalia’s position is filled by ……
Michael J. Madigan!
Comment by Jess Courbusier Tuesday, Feb 16, 16 @ 12:00 pm
This isn’t great news for Senator Mark Kirk, either.
The public sector unions have two doors now. The most important one is to help elect either Hillary or Sanders to the White House and to flip the Court. But Door #2 is to flip the Senate. Now with the New World in Supreme Court politicking, who knows what happens if a Republican sends a nominee to a newly-christened Dem majority there.
Probably President Rubio sends a union buster to the Court regardless, but AFSCME is fighting for its life here. They’ll pursue every angle. Why not spend the money while you still have it?
Comment by ZC Tuesday, Feb 16, 16 @ 12:15 pm
The case that came to mind for me is Evenwel. Still more important than Friedrichs because it attacks the fundamental balance of our democracy, the constitutional basis of one-person-one-vote.
Comment by Angry Chicagoan Tuesday, Feb 16, 16 @ 12:15 pm
The GOP strategy of stonewalling a new appointment is very good for unions…especially if a D wins the White House this year.
Comment by Chicago Cynic Tuesday, Feb 16, 16 @ 12:20 pm
Mike Madigan, and the US Supreme Court justices that he controls.
Comment by AlabamaShake Tuesday, Feb 16, 16 @ 12:31 pm
on a side note, the last 4 presidents who made election year supreme court appointments were all in the GOP…. should be interesting to see if they stick by the whole we wony let you appoint thing…. historically no party has really done that. If Lorretta Lynch gets the appointment, it could make things very interesting.
Comment by Ghost Tuesday, Feb 16, 16 @ 12:33 pm
–Look for Roberts to hold case in abeyance pending a rehearing . It is entirely his call which cases get held or proceed to disposition–
No, it is not. Not if there is a majority decision.
Comment by wordslinger Tuesday, Feb 16, 16 @ 12:39 pm
When I heard over the weekend of Scalia’s passing the Friedrichs case came to mind and I thought it should be a topic of discussion on this board. Rich was right on top of things as usual.
I heard some crazy talk from the GOP over the weekend, in particular from Majority leader McConnell, who suggested that Obama hold off on nominating a new Justice and let the next administration do it so that the voters could have a roll. Huh? Didn’t Obama win the Presidency by fairly comfortable majorities twice? He’s going to be President for 11 more months. We need to fill that vacancy by the end of Summer as there are a number of big cases before the court. The confirmation fight figures to be very heated. If Obama nominates a well qualified candidate that is close to the political center he should get his nominee but you’d have to be naïve to believe that the GOP will see it that way.
Comment by The Dude Abides Tuesday, Feb 16, 16 @ 12:52 pm
Does anyone here know what the law is on the president appointing a Supreme Court Judge? Is there a time-line for the appointment, etc.?
Comment by Mama Tuesday, Feb 16, 16 @ 1:03 pm
== We need to fill that vacancy by the end of Summer as there are a number of big cases before the court. ==
You might WANT to in order to try to ensure a (assumed) given outcome but you don’t HAVE to.
In the past, there have been Supreme Court vacancies for over a year.
== Does anyone here know what the law is on the president appointing a Supreme Court Judge? Is there a time-line for the appointment, etc.? ==
Lots of little ins and outs that could affect this, including a “recess appointment”, but in general it is up to the President to nominate someone to fill the vacancy and the Senate to then advise by either voting up or down.
In the past, there have been Supreme Court vacancies for over a year and that could well happen here. Sometimes it was a delay in making a nomination; sometimes just a straight delay on holding the vote; sometimes it was a straight rejection by the Senate and then going through the entire hearing / voting process a second time (or more).
The key thing is the Senate does have the FINAL word regardless. I’ll also note that, once you wade through the partisan charges, that BOTH parties have been guilty of delay and obstruction in approving a justice when they controlled the Senate.
Comment by RNUG Tuesday, Feb 16, 16 @ 1:15 pm
we Union folk have lost membership during both the Clnton and Obama administrations. Friedrich may have sped up our extinction, but collectively, if we don’t change our ways, I hold out little hope.
Comment by Blue dog dem Tuesday, Feb 16, 16 @ 1:20 pm
Not sure Roberts can hold since the case has been argued, voted and probably in final edit of opinion stage.
BTW is it time to ask the $uper$tars for a current count on the growth of union members since their “fair share” brain storm
Comment by Annonn'' Tuesday, Feb 16, 16 @ 1:48 pm
FYI, Obama has said he won’t do a recess appointment.
Comment by Crispy Tuesday, Feb 16, 16 @ 1:52 pm
Word- there would have been a 5 to 4. Presumably it is now 4 to 4. Roberts decides to affirm with the 4/4 or hold it over for a rehearing. It’s what I used to do
Comment by Anonymous Tuesday, Feb 16, 16 @ 2:18 pm
–Word- there would have been a 5 to 4. Presumably it is now 4 to 4. Roberts decides to affirm with the 4/4 or hold it over for a rehearing. It’s what I used to do–
You “used to do” what? Be Chief Justice of the United States?
I was referencing this statement:
–It is entirely his (Robert’s) call which cases get held or proceed to disposition––
That’s a universal statement, not conditional on a 4-4 tie.
Comment by wordslinger Tuesday, Feb 16, 16 @ 2:37 pm
In my estimation, AFSCME might be able to survive the remainder of Rauner’s one term.
It may be able to withstand a damaging Friedrichs decision.
But not both.
Comment by Stumpy's bunker Tuesday, Feb 16, 16 @ 3:30 pm
- Stumpy’s bunker @ 3:30PM - So… you think the unions need to start planning their funeral? I’m not giving up on the unions yet.
Comment by Mama Tuesday, Feb 16, 16 @ 4:39 pm
I love Nadia Bolz-Weber! I’m totally cool with having my usual expression heard in her voice! I once had a clinical pastoral care (chaplain supervisor in a hospital) supervisor say that how you open a prayer is how you typically see God. I always start my prayers with “Loving and Gracious God”. Anyway, I think it’s an interesting observation.
Comment by Honeybear Tuesday, Feb 16, 16 @ 4:55 pm
I still say that predicting what the Court will rule may be fun, but you have just as good a chance at predicting the winner of the 2016 World Series. My own take is that I don’t see a Court holding that “fair share” is unconstitutional, while continuing to require the union to represent nonmembers. They either keep both or throw both out - no free riders. If they throw both out, we’ll find out how sincere the plaintiffs in this case are when the next union contract says, “And union members get preference over nonunion for promotions and job retention at layoffs, and must be paid at least x% over any nonunion employee doing the same job.”
Comment by Whatever Tuesday, Feb 16, 16 @ 7:56 pm