Losers In Public Union Case Ask SCOTUS To Re-Hear It When It Has A 9th Justice

The challengers in a Supreme Court case that sought — and failed — to cripple public unions are asking the high court to rehear the case once it has a ninth justice, after the court’s 4-4 tie in March meant a lower court ruling against them would stand.

The lawyers representing teachers and the religious teachers’ organization in Friedrichs v. California Teacher’s Association filed the long-shot petition Friday.

“The current vacancy will inevitably be filled, and once it is, the tie will be broken. It makes sense to hold the case for resolution until the Court is capable of resolving it,” the petition said.

The lawsuit targeted the ability of public unions to collect fees from all workers, not just union members, to support the collective bargaining that benefits every employee. A number of states have already passed legislation prohibiting the fees, known as “agency fees.” But the challengers were hoping the Supreme Court would overturn a 40-year-old precedent that allowed unions to collect agency fees, which Justice Samuel Alito had hinted in previous union cases he would like to do. With Justice Antonin Scalia’s death in February, however, the challengers were deprived of the fifth vote they needed for a ruling in their favor. The tie decision deferred to the lower court upholding the fees, which the challengers ironically had asked for in order to rush the case up to the Supreme Court.

“Rather than defer this issue for resolution in some future case at some future time, the better and more efficient course would be to hold the case this
Court has already agreed to decide until it is capable of issuing a decision,” the petition said.

Since the Senate GOP has vowed to block any Supreme Court nominee until a new president is elected, the Friedrichs challengers are essentially asking the court to wait to take the case up again indefinitely, since there is no clear timeline for when the seat will be filled. The Supreme Court has occasionally sought to rehear cases in the past when there was a vacancy, but in the Friedrichs it has already handed down the 4-4 decision that had the effect of affirming the lower court’s ruling.