The country was shocked to hear of the recent passing of Supreme Court Justice Antonin Scalia. Legal scholars and political commentators have since written extensively on Justice Scalia’s contributions to the legal world and his sometimes polarizing opinions. Justice Scalia’s passing will doubtlessly have a significant impact on the Supreme Court, as will the eventual appointment of his replacement.
Aside from the historical and political ramifications of Justice Scalia’s passing, there are also practical implications to consider on labor and employment issues. Several key labor and employment cases are scheduled to be heard this term, while others have been argued but the decisions have not yet been issued. What will happen to those cases?
The Supreme Court can operate with eight justices. Sometimes, a justice must recuse him or herself for various reasons. For example, Justice Elena Kagan had to recuse herself from certain cases that she participated in as Solicitor General to the United States before she was appointed to the Court. Eight justices voting in a case will not have a significant impact on most cases, as most are not 5-4 decisions. However, the most controversial cases often result in 5-4 split decisions, but with only eight justices on such controversial cases, a 4-4 tie means the ruling of the Court of Appeals will stand. There is also some precedent to hold cases and have them reargued after a new justice is appointed to the bench. This has happened in cases where a justice has retired in the middle of a term or in the rare case where a justice has passed away during a term.
One of the most-watched labor and employment cases this term, Friedrichs v. California Teachers Association, involves the ability of a public union to collect “fair share” dues from non-members to cover costs for collective bargaining. The Ninth Circuit Court of Appeals upheld the union’s right to collect such dues prior to the January 11, 2016 Supreme Court argument. Many analysts had predicted a 5-4 decision against the union, with Justice Scalia expected to be in that majority. Should the Court now issue a 4-4 decision, the ruling of the Ninth Circuit will stand and public unions will continue to require non-members to pay “fair share” dues. On the other hand, the Court could decide to have the case reargued once a new justice is appointed.
Several other labor and employment cases were argued earlier this term but have not yet been decided. They include Tyson Foods v. Bouaphakeo (a case involving class certification requirement under the Fair Labor Standards Act), and Green v. Brennan(involving the appropriate filing period for a constructive discharge claims under federal employment law). Another labor and employment case scheduled to be heard this term but not yet argued is CRST Van Expedited v. EEOC, where an employer was awarded $4 million dollars in attorneys’ fees based on the EEOC’s failure to meet its conciliation obligations, an award subsequently overturned by the Eighth Circuit Court of Appeals. It is not clear if any of these cases will result in a 4-4 tie or whether the Court might hold them over for reargument once a new justice is appointed.