Public employee unions dodge a Supreme Court bullet in tie vote

It was the second time in two weeks that the justices had deadlocked in the wake of Scalia's death, but the first major case to emerge in a tie. And it's an indication that without Scalia, the justices may be equally divided in several other cases before the term ends in June.

Although the court's one-sentence opinion did not break down the vote, oral arguments on the hotly contested labor case made clear that the court's four liberal and four conservative justices were on opposite sides.

The justices could have rescheduled the case for when the court is back to full strength. But that could take a year or more, because Senate Republicans have refused to consider President Obama's nomination of federal appeals court Judge Merrick Garland to replace Scalia.

The case, Friedrichs v. California Teachers Association, signified a major threat to public employee unions that represent nearly 36% of government workers — far more than the plummeting average for unions overall. Only 11% of Americans belonged to unions in 2014.

If the justices had ruled that the free speech rights of non-members entitled them to contribute nothing to the costs of representation — they already could opt out of financing unions' political activities — more workers likely would have become "free riders." That would have led to a drop in membership and revenue.

The 325,000-member teachers union, which spends more on politics than any special interest group in the state, warned in its high court brief that tens of thousands of contracts governing millions of workers nationally could be thrown "into disarray." More than 4.5 million teachers are union members.

The lawsuit was brought by the conservative Center for Individual Rights, which along with the National Right to Work Legal Defense Foundation has sought to overturn a 1977 Supreme Court decision that allowed public employee unions to collect "fair share" fees from non-members for the costs of collective bargaining.

Rebecca Friedrichs, an elementary school teacher who was the lead plaintiff, had spent several years as a union officer and found its leadership unwilling to consider her suggestions. She opposed tenure laws that make it harder to fire bad teachers, seniority rules that ignore merit — even salary increases that lead to larger class sizes.

The battle had divided the nation almost equally between states where laws govern collective bargaining for public workers and those where workers can't be forced to join unions or contribute to them.

Defenders of the current system contended that so-called "right to work" laws, in states mostly led by Republicans, lead to inferior education and public services. Average test scores are lower for students in those states on fourth- and eighth-grade math and reading proficiency tests. A brief filed by 21 states led by Democrats said fair-share fees lead to improved government efficiency and labor peace, because states can negotiate with just one union and strikes are more easily averted.

Moreover, a brief submitted on behalf of public safety unions said a defeat "risks setting in motion a union 'death spiral' — as membership drops, the union will have to increase dues to cover its expenses, which will create further incentives for additional workers to quit the union."

The challengers didn't buy any of those arguments. Mark Mix, president of the National Right to Work Legal Defense Foundation, had said those who oppose their local unions but are forced to pay many hundreds of dollars annually to support them "are not free riders. They're captive passengers."

Michigan and 17 other Republican-led states told the court that all collective bargaining at the government level amounts to lobbying, with taxpayers paying for the results. They blamed union contracts for municipal bankruptcies from Detroit to Stockton, Calif.

The high court's 1977 ruling in Abood v. Detroit Board of Education upholding union payments by non-members was unanimous, but the current court had moved away from it in two recent cases.

In 2012, the justices ruled 7-2 that a California public employee union could not impose an additional fee on workers without their assent. In 2014, they ruled 5-4 that Medicaid-funded home-care workers in Illinois did not have to pay dues to public employee unions because they were not typical state workers.

While neither case overruled Abood, the trend appeared clear. Justice Samuel Alito wrote in 2014 for the court's conservative majority that except in rare circumstances, "No person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support."

In the end, however, Alito needed Scalia's fifth vote, and the leader of the court's conservative bloc died before he could provide it.