Justice Antonin Scalia's sudden passing on February 12 will have profound effects on the Court and the nation for years to come, and will directly influence the outcome of the cases currently before the Court. Among them isFriedrichs v. California Teachers Association, a key case regarding whether public-sector employees can be required to pay a "fair share" fee in connection with a union's collective bargaining efforts on their behalf.

The Supreme Court in 1977 affirmed the constitutionality of mandatory fees for non-union members as a way of avoiding "free riders" who enjoy the benefits of the collective bargaining process without its associated costs. The issue before the court in Friedrichs was whether this "fair share" fee was a violation of public school teachers' free speech rights. During oral argument, the Court appeared split along ideological lines, with its 5-member conservative majority seemingly ready to invalidate such mandatory "fair share" fees.

However, as a ruling in Friedrichs has not yet been issued, Justice Scalia's vote will not factor into the decision. As a result, the decision will likely be a 4-4 split, which will have the effect of affirming the lower court's ruling (the lower court found in favor of the union and the "fair share" fee requirement). Thus, what appeared to be an expected triumph for public-sector employers will likely become a union victory upholding "fair share" fees for collective bargaining.