Public sector union officials and their allies will breathe easier as a challenge to the collection of “agency fees” from non-members was rejected by a deadlocked United States Supreme Court earlier this week. In a per curiam ruling issued on March 29, the Court affirmed the ruling of the Ninth Circuit Court of Appeals in the matter of Friedrichs v. California Teachers Association on the basis of a 4–4 vote.1 The ruling comes as a disappointing – if expected – blow to proponents of public employees’ free association rights in the wake of the death of Justice Antonin Scalia in February.

Friedrichs concerned a challenge by a group of California teachers to the union’s practice of collecting agency fees for its activities related to collective bargaining from teachers who did not wish to be union members. As we previously reported, the Friedrichs plaintiffs asked the Court to reverse its decision in Abood v. Detroit Board of Education,2 arguing that collective bargaining activity by public sector unions is inherently political, making compulsory union fees an impermissible encroachment on employees’ rights of free association. Justice Samuel Alito’s ruling in a 2014 case was widely read to invite such an argument.3

The 4–4 ruling leaves the underlying Ninth Circuit decision in favor of the union in place but sets no new national precedent. The Center for Individual Rights, the nonprofit organization representing the Friedrichs plaintiffs, announced it will petition the Court to rehear the case.4 If granted, the Court would likely hear the case during the October 2016 term, presumably with the vacancy created by Scalia’s death filled. As has been widely reported, Senate leadership has pledged not to act on President Obama’s recent nomination of D.C. Circuit Chief Judge Merrick Garland to fill that vacancy. Justice Scalia’s eventual replacement may impact the continuing viability of the Abood decision endorsing public sector union agency fees. Accordingly, the ability of public sector unions to collect compulsory fees from employees who may or may not support the unions’ views appears to be safe for the time being in the more than 20 states that do not have right-to-work laws.