As previously reported, the post-Scalia Supreme Court tied, leaving in place a lower-court decision that rejected the claim of several public school teachers in California that they should not be forced by the state – under penalty of discharge – to pay "agency fees" to a teachers’ union. In Friedrichs v. California, the teachers’ union had a collective bargaining agreement with the state school district that included a union security clause.

The U.S. Court of Appeals for the Ninth Circuit had rejected the teachers' arguments that the union security provision violated their rights under the First and Fourteenth amendments to the U.S. Constitution by requiring their support of an organization engaged in political activity, dealing with the state. The Ninth Circuit agreed with the State of California and the unions, which argued that allowing the teachers to escape fees would let them be "free riders" and gain the benefits of the union bargaining activity without bearing any of the costs, a line of reasoning adopted by the Supreme Court in 1977.

The state and the unions contended that the mandatory agency fees were used only for bargaining and related union activity, not for any political activity. The plaintiffs argued that union activity dealing with a government is inherently political.

Commentators had speculated that the Supreme Court would reverse the Ninth Circuit decision by a 5-4 vote with conservative justices in the majority. However, Justice Antonin Scalia died after arguments but before a decision was rendered. Without Justice Scalia, the Court split 4-4, leaving the Ninth Circuit decision in place.

But is this case really over? On April 8, the teachers petitioned for rehearing when the Court is back to a full complement of nine justices. A rehearing can be granted only by a majority vote of the Court. The Court could reject the petition, go forward with a decision of eight justices, or delay a decision until another justice is confirmed and can participate in the decision. Although President Obama has nominated Judge Merrick Garland from the District of Columbia Circuit to fill Justice Scalia’s seat, some Senate Republicans have taken the position that any new justice should be appointed by the next President, and President Obama has indicated he will not make a recess appointment. So it may be months before another justice joins the Court. (Judge Garland has a pro-labor record, so if he becomes the ninth Supreme Court Justice, the teachers’ efforts may be for naught.)

The case has significant political implications because organized labor, including public employee unions, is a key constituency of the Democrats and opponent of Republicans. Whether they’re called “union dues” or “agency fees,” the forced payments at issue in Friedrichs are funds on which the unions and Democrats depend. We expect to see public school teachers in other circuits, which are not bound by the Ninth Circuit decision, file lawsuits challenging similar provisions in their own collective bargaining agreements.