Comments on: "The judgment is affirmed by an equally divided Court."

"The judgment is affirmed by an equally divided Court."

cjelli — Tue, 29 Mar 2016 12:32:38 -0800

In only the second case decided since the recent death of Justice Scalia, the United States Supreme Court today reached a decision [PDF] in the case of Friedrichs v. California Teachers Association, deadlocking in a four-to-four tie that upholds an earlier circuit court ruling finding agency fees for non-union teachers to be constitutional, but that sets no precedent for future cases.

NYTimes - Victory for Unions as Supreme Court, Scalia Gone, Ties 4-4

WASHINGTON — The Supreme Court on Tuesday handed organized labor a major victory, deadlocking 4 to 4 in a case that had threatened to cripple the ability of public unions to collect fees from workers who chose not join and did not want to pay for the unions' collective bargaining activities. It was the starkest illustration yet of how the sudden death of Justice Antonin Scalia last month has blocked the power of the court's four remaining conservatives to move the law to the right. The case was brought by 10 California public schoolteachers. A ruling in their favor would have affected millions of government workers and weakened public-sector unions, which stood to lose fees both from workers who objected to the positions the unions take and from those who simply chose not to join while benefiting from the unions' efforts on their behalf. for When the case was argued in January, the court's conservative majority seemed ready to say that forcing public workers to support unions they had declined to join violates the First Amendment. Justice Scalia's questions were consistently hostile to the unions.

Forbes - Supreme Court Tables Friedrichs Case Challenging Public-Sector Union Dues

Locked in a 4-4 standoff after the death of Justice Antonin Scalia, the court left intact a Ninth Circuit Court of Appeals decision rejecting the challenge by teacher Rebecca Friedrichs. That doesn't necessarily end the case, however. The Center for Individual Rights, which represents Friedrichs, plans to file a petition for rehearing after the court receives its ninth justice, presumably after the November presidential elections. "The normal procedure in a situation like this is to hold the case over until next term," said Terence Pell, president of CIR, which pursues libertarian and conservative causes and recently helped convince the Supreme Court to overturn the Massachusetts conviction of a domestic-abuse victim for carrying a stun gun. Pell said CIR will soon file a petition for rehearing, which under Supreme Court rules requires a majority of justices to uphold. While that might be a challenge, he said, "it's in both sides' interest here to get a final, authoritative decision."

The Court's opinion was also notable in that it was a mere eleven words, making it one of the shortest opinions in the court's long history. Exactly how long are opinions, anyway? NYTimes, Adam Liptak (2010) --

The Roberts court set a record last term, issuing majority opinions with a median length of 4,751 words, according to data collected by two political scientists, James F. Spriggs II of Washington University in St. Louis and Ryan C. Black of Michigan State. The lengths of decisions, including the majority opinion and all separate opinions, also set a record, at 8,265 words. In the 1950s, the median length of decisions was around 2,000 words. The opinions in Citizens United v. Federal Election Commission...spanned 183 pages and more than 48,000 words, or about the length of "The Great Gatsby." [That] decision [was] ninth on the list of longest majority opinions.

Justice Marshall's six-word opinion in United States v. Barker (1817) remains, for now, the Court's shortest opinion. [Previously on Metafilter: Friedrichs v. California Teachers Association, Scalia's death]

By: notyou

notyou — Tue, 29 Mar 2016 12:35:18 -0800

Suckit, Mitch.

By: EmpressCallipygos

EmpressCallipygos — Tue, 29 Mar 2016 12:35:32 -0800

I linked to this on Facebook this morning with the following comment: "Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy."

By: Bromius

Bromius — Tue, 29 Mar 2016 12:40:42 -0800

Of course, given the de facto affirmation of the lower court's ruling on Whole Woman's Health v. Hellerstedt, the split cuts both ways.

By: jedicus

jedicus — Tue, 29 Mar 2016 12:40:49 -0800

"Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy." Argument for the case was heard before Scalia's death. Even if a replacement had been nominated and confirmed immediately, the replacement would not (normally) have participated in deciding the case.

By: Etrigan

Etrigan — Tue, 29 Mar 2016 12:42:44 -0800

PER CURIAM. The judgment is affirmed by an equally divided Court. Dibs on Scalia's chair. You can't call dibs in a judgment. Suck it, can too. Says who? Says the precedent of My Ass vs. Already In Scalia's Chair. CUT IT OUT, YOU TWO. Ooh, look at big bad Chief Justice with his all caps. I SWEAR TO GOD I WILL TURN THIS JUDGMENT RIGHT AROUND.

By: sparklemotion

sparklemotion — Tue, 29 Mar 2016 12:44:16 -0800

Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy I wouldn't gloat too much, there are some cases coming down the pike where the 4-4 split will affirm some unfortunate results for people with Metafilter-aligned politics. I mean, for the most part, Scalia's vote wouldn't have been helpful, but he had a good record on 4th amendment issues.

By: imnotasquirrel

imnotasquirrel — Tue, 29 Mar 2016 12:45:32 -0800

Argument for the case was heard before Scalia's death. Even if a replacement had been nominated and confirmed immediately, the replacement would not (normally) have participated in deciding the case. And even if the replacement did participate, isn't it most likely that the GOP would have lost* regardless? Only this time they would have lost 5-4. At least this way, no major precedent has been set. So I can't imagine conservatives regretting their choices now. * I mean, I admittedly don't know much about Merrick Garland's stance on unions...

By: parliboy

parliboy — Tue, 29 Mar 2016 12:53:20 -0800

* I mean, I admittedly don't know much about Merrick Garland's stance on unions... Garland rulings consistently side with labor unions

By: Talez

Talez — Tue, 29 Mar 2016 12:55:11 -0800

If Scalia could have held out another six weeks they would have crushed public service unions once and for all. Right to ~~starve~~ work for all!

By: tittergrrl

tittergrrl — Tue, 29 Mar 2016 12:59:57 -0800

They may also be deadlocked on Zubik v. Burwell as well, which is the Affordable Care Act birth control case

By: graymouser

graymouser — Tue, 29 Mar 2016 13:01:56 -0800

What is astonishing is that public sector unions were in pants-shitting terror (and expecting to immediately enact severe cutbacks) on Friedrichs but had no plan for action based on it other than some mild lobbying. They dodged a major bullet but the conversation should've been completely different.

By: Holy Zarquon's Singing Fish

Holy Zarquon's Singing Fish — Tue, 29 Mar 2016 13:11:34 -0800

The Court's opinion was also notable in that it was a mere eleven words, making it one of the shortest opinions in the court's long history. Technically true but that's a many-way tie -- every deadlocked vote is reported with exactly those words.

By: Postroad

Postroad — Tue, 29 Mar 2016 13:12:09 -0800

By: Holy Zarquon's Singing Fish

Holy Zarquon's Singing Fish — Tue, 29 Mar 2016 13:15:55 -0800

That doesn't work for public-sector unions, though. They're required by law (at least in some states? I can't remember if it applies everywhere, but it definitely applies in CA where this suit originated) to negotiate contracts that cover all employees, union or not.

By: Rangi

Rangi — Tue, 29 Mar 2016 13:16:00 -0800

Serious question: if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not?

By: Capt. Renault

Capt. Renault — Tue, 29 Mar 2016 13:23:27 -0800

In Canada, this was decided in the 40s by the 'Rand Formula', where (roughly speaking) you are free not to join a union, but you pay union dues regardless, as they have performed work for you by negotiating, and you gain a benefit through that union work.

By: Mooski

Mooski — Tue, 29 Mar 2016 13:26:31 -0800

Serious question: if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not? I'd imagine it would be having a vote. Sort of like you pay taxes and you get access to whatever infrastructure the government puts in place, but unless you participate (i.e., vote), you pretty much get whatever a majority of everybody else wants. Could be argued that for very large samples, the outcome is the same, but...

By: DGStieber

DGStieber — Tue, 29 Mar 2016 13:27:56 -0800

It's about the non-wage negotiation part of fees. Unions also do things like advocate for better workplace conditions, or other political things that aren't contained within the "wage negotiation" label. There is some share of union dues that go to those parts of the union, and those are the parts at issue in these cases.

By: Frowner

Frowner — Tue, 29 Mar 2016 13:28:24 -0800

Serious question: if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not? You pay reduced fees if you don't join, but you get all the benefits of the contract. My union has this option - it's called "fair share" and I don't really understand why people take it except out of sheer hatred of unions. Which is bizarre in this particular occupation, as when the union came in here it won some mighty and extremely obvious victories.

By: Talez

Talez — Tue, 29 Mar 2016 13:29:38 -0800

Serious question: if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not? The sticking point isn't so much that. Unions do a lot of things besides contract negotiations and agency representation. Things like political causes to elect officials favourable to unions (i.e. won't enact right to work, strengthen labour laws) and defeat citizen initiated referendums hostile to unions. Part of your agency fee goes towards those activities. Currently if you are a non-member you pay your agency fee and then, if the union's politics don't align with your own, you can seek a refund on part of your agency fee as part of something called Beck rights. You can be forced to pay for representation but you can't be forced to pay to elect a democrat if you're a republican. This case would seek to flip it, that unions would have to provide a bare bones fee that covers only representation and agency and require non-members to opt-in to providing additional fees that finance union political causes. A lot of people don't exercise their Beck rights either through ignorance or apathy. This gives the unions a lot more breathing space for fighting politically. Every time the president flips from D to R union workplaces get a new poster explaining their Beck rights and when it flips back the posters go down. To flip it around and require non-members to opt-in would drain a union's warchest somewhat making it much easier to "finish the job". No money, no political clout, no opposition.

By: JackFlash

JackFlash — Tue, 29 Mar 2016 13:33:49 -0800

if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not? Agency fees cover only the costs of bargaining, contract administration and grievance handling. They do not cover political activities such as candidate canvassing or advertising for ballot measures. It can pay for some lobbying activities directly related to contracts. For example annual union dues for members might be $600 per year but an agency fee for non-members will be only $400 per year.

By: DGStieber

DGStieber — Tue, 29 Mar 2016 13:40:43 -0800

>Of course, given the de facto affirmation of the lower court's ruling on Whole Woman's Health v. Hellerstedt, the split cuts both ways >I wouldn't gloat too much, there are some cases coming down the pike where the 4-4 split will affirm some unfortunate results for people with Metafilter-aligned politics Kinda. a 4-4 split affirms the lower court's decision, but does not make "law" in the same way that a 5-4 affirmation would. It's totally (theoretically) possible for another circuit to decide this same question the opposite way, and for that one to also be affirmed by a 4-4 vote. Simultaneously. Like, when Obergefell was decided, it became the law of the land that states must recognize marriages (same- and opposite-sex) performed in any other state. But this case doesn't make any "law of the land" like that. 4-4 splits are kinda like a "game called due to weather" or something- the issue can come up again for final decision, and the standings of the teams aren't really changed. They're just...delayed. And this applies in reverse, too. If there's a 4-4 split upholding TX's horrible laws, that's NOT the same thing as saying that TX's horrible abortion access laws are constitutional. It's saying that the lower court's ruling is not yet overturned. It's pretty much the same as if the court denied cert. To go back to the Same Sex Marriage cases, it's like when SCOTUS denied cert on several circuit's decisions re: SSM. The issue wasn't settled 'till Obergefell, even though, by denying cert, SCOTUS was allowing SSM to continue in multiple circuits. It's still a good thing that Scalia's not here to decide on these cases.

By: Joe in Australia

Joe in Australia — Tue, 29 Mar 2016 13:46:33 -0800

Brevity points for putting the entire SC decision in the title.

By: GuyZero

GuyZero — Tue, 29 Mar 2016 13:49:44 -0800

I've never understood why they don't just give each Justice two chopsticks.

By: JackFlash

JackFlash — Tue, 29 Mar 2016 13:55:54 -0800

When I read comments about this case elsewhere on the net, I find that many people believe that workers should not have to become union members if they choose not to; but they should not get the benefits that might be forthcoming for union members. Two systems for the same place. My guess is that non-union members would quickly join the union if it meant better conditions and salaries. Two systems for the same place is what is know as strikebreakers or scabs. There are always people more desperate for a job that they will take a lower wage than a union worker. Companies can exploit this in a race to the bottom to break a union. A union only works if it is exclusive -- everyone hangs together or hangs separately.

By: Holy Zarquon's Singing Fish

Holy Zarquon's Singing Fish — Tue, 29 Mar 2016 13:56:10 -0800

The big hazard with a 4-4 decision is when there are conflicting circuit court rulings, as in the Obamacare contraception case that they're considering now, because a divided vote there means that the conflict continues indefinitely -- meaning the religious-employers exemption would be perfectly okay in some states but illegal in others. Which is probably why the court just asked for a new round of briefing to try and get some kind of consensus.

By: Frowner

Frowner — Tue, 29 Mar 2016 14:01:25 -0800

To elaborate on the strikebreakers thing - if some people could work at a place for less than the prevailing wage paid at that place as long as they didn't join the union, don't you think that the bosses would figure out a way to convey to people that they'd be more likely to be hired if they gave evidence of anti-union sentiment? Don't you think that the bosses would try to suss out who might be a union symp during the hiring process? I was once accused of having "liberal glasses" by someone in a semi-work setting. People do scrutinize your appearance and demeanor for political cues already and I'd rather not have that amped up by having bosses try to guess who will work for below the prevailing wage.

By: Postroad

Postroad — Tue, 29 Mar 2016 14:16:01 -0800

Law suits such as these are specifically made to destroy organized labor. A true story: During the Great Depression my father,who never finished high school, lost his job. A very wealthy relative hired him to work at an aluminum smelting factory. Management had my dad's last name, but he could be part of management because he never finished high school. The union said he could be in the union because he had management's name! So he was neither here nor there but for every holiday, it was cheaper to keep the furnaces going by stoking them than shutting down and reopening. Guess who got to work every holiday? Lesson: you are either on one side or the other. In the middle you are screwed.

By: homunculus

homunculus — Tue, 29 Mar 2016 14:50:33 -0800

This Election Will Determine Constitutional Law for the Next 30 Years: Pay attention to today's Supreme Court decision on labor rights.

By: jpe

jpe — Tue, 29 Mar 2016 14:51:28 -0800

Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy." You think he would've been happier with a 5-4 loss that created binding precedent?

By: Greg Nog

Greg Nog — Tue, 29 Mar 2016 15:30:39 -0800

Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy ... I wouldn't gloat too much, Well, we can at least all agree on the one universal: it's extremely good that Scalia died.

By: drezdn

drezdn — Tue, 29 Mar 2016 15:38:43 -0800

If you ever need evidence that the right is good at playing a long-con, look at Citizen's United. When groups were pushing for it, they brought some normally considered left wing groups on board by saying it would give the unions more say too. Then, after C.U., Republicans have done everything they can to defund or destroy unions, the one left wing group that could really take advantage of the CU ruling.

By: zombieflanders

zombieflanders — Tue, 29 Mar 2016 16:01:48 -0800

Well, this is an interesting turn of events: SCOTUS Asks Objectors To Contraceptive Opt-Out: Show Us Better Alternatives

At last week's oral arguments, the court, and particularly the male justices in its conservative bloc, struggled when grappling with the question of how female employees of religious nonprofits would receive contraceptive coverage if the accommodation was not allowed to stand. Now the court has requested the challengers provide briefs outlining other options. The briefs, due April 12, should address "whether and how contraceptive coverage may be obtained by petitioners' employees through petitioners' insurance companies, but in a way that does not require any involvement of petitioners beyond their own decision to provide health insurance without contraceptive coverage to their employees," the court said. The order offered one example alternative, in which the nonprofits would tell their insurance companies right off the bat that they did not wish to cover contraceptives. From there, it would be up to the insurance company to tell employees that cost-free contraceptive coverage would be provided to them outside of the employer plan.

By: T.D. Strange

T.D. Strange — Tue, 29 Mar 2016 16:03:17 -0800

Republicans are always playing the long con. This case, all of the ACA cases, the entire line of binding arbitration cases, the case which killed the Voting Right Act, the upcoming case to kill proportaional redistricting and 1-person-1-vote, the cases killing class actions, every last give and inch they take a mile abortion case sailing a container ship through Kennedy's no-burden-is-ever-too-undue test, all of these were ginned up specifically by Republican funded activist groups seeking to capitalize on the Republican controlled Roberts Court and achieve through SCOTUS what they haven't been able to achieve legislatively. But again, it's only "activist" when its liberal judges. John Roberts himself will swear he only calls the balls and strikes.

By: T.D. Strange

T.D. Strange — Tue, 29 Mar 2016 16:27:02 -0800

The Republican attack on public sector unions, in both state legislatures and the courts, is in large measure an attack on a major Democratic constituency.

By: workerunit

workerunit — Tue, 29 Mar 2016 16:30:15 -0800

This case would seek to flip it, that unions would have to provide a bare bones fee that covers only representation and agency and require non-members to opt-in to providing additional fees that finance union political causes. First off, you could stop all member-dues funding of political causes by seating a Supreme who'll overturn Citizen's United, which gave unions (and businesses) the right to donate to political causes from their corporate treasury; before that decision only voluntary contributions to the union's (and business') private Political Action Committee could be used. But, without overturning CU, if you're willing to support the same restrictions on business -- no funds contributed unless we stockholders opt in -- I've got no problem with that part of the case. No, the really objectionable part is the first section, which seeks to have this allegedly "non-activist" Court overturn Supreme Court precedent and declare that the acts of negotiating and enforcing a collective bargaining agreement (aka "union contract") are, in themselves, political acts and, as such, speech that can not be compelled. Which is poppycock. Union representation to negotiate wages, hours and working conditions is not political campaigning, even if Management sitting on the other side of the table is The State.

By: Justinian

Justinian — Tue, 29 Mar 2016 17:11:40 -0800

Well, we can at least all agree on the one universal: it's extremely good that Scalia died. It is good that Scalia is no longer on the Court. But dying sucks. Even for people I dislike. I wish he were off the Court... sipping Mai Tais in a hammock and hanging out with the Notorious RBG in her spare time. Having a grand old time. Not on the Court.

By: T.D. Strange

T.D. Strange — Tue, 29 Mar 2016 17:16:50 -0800

That argument doesn't really work for political institutions with lifetime appointment. Necessarily change only happens through the deaths of the despicable people in power, unless they honorably resign, which has never happened across the aisle in our modern polarized Court, and never would. Maybe that's an argument for ending lifetime appointment, but not against celebration when a roadblock to change is removed.

By: 922257033c4a0f3cecdbd819a46d626999d1af4a

922257033c4a0f3cecdbd819a46d626999d1af4a — Tue, 29 Mar 2016 19:01:18 -0800

"Well well well. Look what happened because the Senate didn't want to fill the SCOTUS vacancy." So if they had filled it, and this case was decided it would have gone 5-4 in favor of the unions AND set precedent. So I think this is exactly what Mitch and his ilk wanted.

By: asra

asra — Tue, 29 Mar 2016 19:14:10 -0800

tis a shame that peoples lives are decided based on who currently occupies the court seats.

By: klangklangston

klangklangston — Tue, 29 Mar 2016 22:49:48 -0800

"It is good that Scalia is no longer on the Court. But dying sucks. Even for people I dislike. I wish he were off the Court... sipping Mai Tais in a hammock and hanging out with the Notorious RBG in her spare time. Having a grand old time. Not on the Court." Dying sucks, even for people I dislike, but given that contraception reduces both maternal and infant mortality, is it better that they die so that Scalia can dream of a Republican president and drinking Mai Tais? It's a dark calculus, but one more death on the conservative side would probably save millions of lives over the next decade if all issues are considered (e.g. global warming). Dying sucks, but a pretzel was inches away from saving millions of Iraqis.

By: pwnguin

pwnguin — Tue, 29 Mar 2016 23:23:48 -0800

You pay reduced fees if you don't join, but you get all the benefits of the contract. My union has this option - it's called "fair share" and I don't really understand why people take it except out of sheer hatred of unions. As a member of SEIU, I have to point out that's not true. Fair share is exactly the same price as union membership. On top of the 1.7 percent of salary paid for dues, there's technically a 33 dollar annual 'Issues' fee, but while you can opt out of it, it merely goes to a scholarship program instead. And yea, unions are under attack from Repubs because we vote Dem more than any ideological vitriol against unions. You're technically required to opt in to the union by signing a piece of paper or something. Membership stats are likely used as sort of a show of strength. If everyone who can be a member is, it demonstrates some level of organization, and commitment behind the negotiating team. Of course, if your union leadership ballot is practically empty for want of volunteers, it's not a great sign for things to come. At least personally, I'm ambivalent to the union. Mostly because the union negotiated starting wage for my role was pretty low. Like the student employees I "supervise" make more than that a month at their internships low, and my role is the most senior / skilled classification in tech. So I'm saddled with the union dues but had to negotiate an exception to my pay band. On the plus side, it's nice to get things like back pay for years of managerial failures to perform what you and I would consider the most basic functions of salary administration, like annual goals and performance reviews. And official compensation time for overtime, which is quite rare in IT.

By: VTX

VTX — Wed, 30 Mar 2016 05:56:23 -0800

When I read comments about this case elsewhere on the net, I find that many people believe that workers should not have to become union members if they choose not to; but they should not get the benefits that might be forthcoming for union members. Two systems for the same place. My guess is that non-union members would quickly join the union if it meant better conditions and salaries. Sometimes they don't, in my (well, really my mom's in the Postal Workers Union) experience, it's often out of loyalty to their ideology. But why they do or don't join the union is irrelevant. The fact remains that whether they join the union or not, they benefit from it. So it makes sense that they would have to pay union dues. It's just like taxes (at least taxes in theory); everyone benefits so everyone pays.

By: chrominance

chrominance — Wed, 30 Mar 2016 06:10:44 -0800

Serious question: if all workers have to pay union fees, and they all get whatever deal the union has negotiated for them, then what's the difference between joining or not? Besides the political angle, there are specific cases where people opt out. Acting unions, for example, often require its members to work only on union-affiliated productions in order to improve its bargaining position. Some actors want the freedom to work on any project, including low-budget ones that likely can't afford union actors, and so opt out of the union while continuing to pay dues.

By: Frowner

Frowner — Wed, 30 Mar 2016 06:20:50 -0800

As a member of SEIU, I have to point out that's not true. Fair share is exactly the same price as union membership. Not for my local! (I'm AFSCME.) That's so weird. Fair share is cheaper here, or it was when I signed up for the union eleven years ago this June.

By: Mitheral

Mitheral — Wed, 30 Mar 2016 08:28:16 -0800

Frowner: "it's called "fair share" and I don't really understand why people take it except out of sheer hatred of unions." So you do understand.

By: graventy

graventy — Wed, 30 Mar 2016 09:35:39 -0800

I think sometimes people choose fair share because they need the money. Union or no, a lot of these jobs still don't pay that well.

By: mostly vowels

mostly vowels — Wed, 30 Mar 2016 17:17:31 -0800

As an Ohio public sector union member, I am seriously sighing a huge sigh of relief on this, especially given Kasich's past shenanigans with state public unions. Ironic thing is, I was literally explaining to a non-union-but-pro-labor friend (who works in a small retail chain) about the Friedrichs case and the concept of fair share the same day Scalia died. Re: fair share -- in my union, to be a member is something like $5 more a month than fair share fees. Since I wanted to be able to vote in our union elections, I became a member almost as soon as I started. Not to mention, you get some serious progressive activist street cred by getting to literally show people pictures of your union card (sadly mine was printed on a janky ink jet printer).

By: John Cohen

John Cohen — Wed, 30 Mar 2016 19:12:42 -0800

Well, we can at least all agree on the one universal: it's extremely good that Scalia died. I assume your top priority isn't strengthening 4th Amendment rights against unreasonable searches and seizures.

By: Holy Zarquon's Singing Fish

Holy Zarquon's Singing Fish — Wed, 30 Mar 2016 19:37:38 -0800

Or it is, but you think the exclusionary rule is important.

By: dis_integration

dis_integration — Thu, 31 Mar 2016 05:46:10 -0800

Not for my local! (I'm AFSCME.) AFSCME, Da fukkin' union dat works fa you! (NSFW).