In January, the U.S. Supreme Court heard oral argument in Friedrichs v. California, a case in which non-union public school teachers in California contended that they should not be required to pay "agency fees" to a union for its bargaining activity. The Supreme Court is reviewing a decision by the U.S. Court of Appeals for the Ninth Circuit, which had upheld provisions in collective bargaining agreements that required payment of the fees and had rejected the teachers' arguments that the provisions violated their First Amendment rights by requiring them to support an organization that engaged in the political activity of dealing with the government. The Ninth Circuit agreed with the state and the unions, who 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. (The state and the unions contend that the mandatory agency fees are used only for bargaining and related union activity that is not directly political or ideological.)

Based on the questioning at the Supreme Court oral argument, and the reputations and prior rulings of the members of the Court, commentators speculated that the Ninth Circuit decision would be reversed 5-4, with Chief Justice Roberts, and Justices Alito, Kennedy, Scalia, and Thomas in the majority. Now, with the recent death of Justice Scalia, commentators predict a 4-4 split, which would leave the Ninth Circuit decision in place. If that happens, Friedrichs will be the rule in all Ninth Circuit states unless the Ninth Circuit itself overrules the decision or a majority of the Supreme Court rules to the contrary in another case involving the same issue.

Friedrichs may be the most important labor and employment case to be affected by the death of Justice Scalia. The Court could go forward with a decision of eight justices, or delay a decision until another justice can participate in the decision, a delay that may reach well into 2017 if the Republicans have their way. In the meantime, unions are expected to keep trying to require agency fees from employees of state and local governments, organized labor's biggest growth sector, while non-union employees are expected to continue challenging contract provisions that require them to pay union dues or agency fees. Given the publicity the case has generated and the widening political divisions across the country, we expect no shortage of plaintiffs ready to challenge forced agency fee payments.