The recent death of conservative Justice Antonin Scalia will give public sector unions a short respite in Friedrichs v. California Teachers Association et al., a case that was likely to limit public sector unions’ ability to require mandatory fees from public workers. Following last month’s oral arguments before the High Court, many legal analysts expected a 5-4 opinion in Friedrichs, striking down mandatory union fees for public workersNow, it is possible that the lower court ruling upholding the fees will remain in place.

Friedrichs seeks to overrule, on First Amendment grounds, Abood v. Detroit Board of Education, a 1977 case requiring public sector nonunion and union members to pay union fees, as long as workers are not forced to pay a portion of the fees that covers political or ideological activities.

Scalia was expected to vote against union fees, but without him, the justices likely would be evenly divided. In that case, the Supreme Court would issue a short ruling affirming the Ninth Circuit’s judgment in favor of the unions, thereby allowing the continuation of mandatory union fees for public workers.

However, the Supreme Court has the option of staying the case pending the appointment of a new justice, a position which teachers’ advocates favor. Given the political climate, staying the case could lead to a delay of a year or more while a new justice is confirmed.

In either event, union advocates have received a temporary grace period to continue to enforce mandatory union fees for public employees. While Scalia’s death implicates all of the cases before the Court, the outcome of Friedrichs may very well change, as all indications previously had pointed to a loss for the unions.