A likely union defeat that's no longer likely

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John O'Connor
John O'Connor

There is probably never a good time to take a vacation. Or for a Supreme Court justice to pass away.

For Anton Scalia's recent death will certainly make things far less predictable when it comes to several major pending matters — including one that was all-but-certain to weaken unions.

Oral arguments were heard in January in the case of Friedrichs v. California Teachers Association. At issue is whether workers who choose not to join public unions can be required to pay for collective bargaining efforts.

At the time, it appeared the court was heading to a 5–4 vote against the provision. Scalia's dismissive comments showed he clearly was not buying the union's position.

But it's now looking more like a 4–4 split will occur, which would mark a major union victory.

Should the deadlock occur, the court automatically can affirm the decision under review (which favored the union). Or it can kick the case down for re-argument in the term that starts in October. Either option would be a victory for public unions, and unions in general.

For although this case pertains to public unions, the argument that would have overturned their ability to universally collect dues could be applied to non-public unions as well.

At the very least, public unions likely will be able to collect dues through the November election. That means public unions will not be required to divert dues away from political activity during what promises to be the most expensive campaign season ever seen.

The best-case scenario for those against the union's position is that two things happen: One is that the court sends the case down for review and it comes back later. And that when the case bounces back, Scalia has been replaced by another conservative justice.

Although the first development could take place, the second is much more of a long shot. Because that would mean that either President Obama nominates a conservative judge (which is probably not going to happen by design) or that a Republican candidate wins the presidential race and the ninth seat on the court is still open (a better bet, but still far from likely at this time).

What the odds actually favor right now are two other developments: One is that Obama will get a centrist but liberal-leaning justice approved before November, or that the next president will be a Democrat who will try to do the same. That is, unless the Democrats take control of the Senate as well. Should this happen, it will be quite easy for a Democrat president to nominate a make-no-mistakes-about-it lefty justice.

And if that scenario takes place, conservatives will have much more than one controversial case to be concerned about. Should be an interesting year.

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