When Supreme Court Justice Antonin Scalia died unexpectedly 11 months ago, it was a fatal blow to a landmark California case dealing with compulsory union dues.
Scalia, it was certain, would have made it a 5-4 majority to overturn laws in California and 23 other states requiring non-members of public employee unions to make “fair share” payments to those unions.
The outcome of Friedrichs v. California Teachers Association was so certain that public employee unions were openly strategizing on how to maintain their political power after losing.
Then Scalia died and the CTA won by default on a 4-4 tie among the remaining justices, dealing a big setback to the conservative “right-to-work” organizations that had backed the suit.
The issue remained alive, however, because the Republican-controlled U.S. Senate refused to take up President Barack Obama’s nomination of Merrick Garland to fill the Scalia vacancy. The seat is still vacant with Republican Donald Trump poised to succeed Obama.
Trump will name someone to the court, probably very early in his presidency, and while the Friedrichs case has been set aside, the organizations that backed it have another waiting in the wings when the seat is filled.
The case originally pitted Bruce Rauner, the Republican governor of Illinois, against AFSCME, the nation’s largest public employee union. Illinois requires non-members to pay fees to unions, and Rauner set the money aside in an escrow account while he sued to overturn the law.
However, the suit was thrown out because it was deemed that Rauner lacked standing, so it was taken up by a couple of public employees, and is now known as Janus vs. AFSCME.
The plaintiffs fast-tracked the revised case through lower courts by virtually inviting them to dismiss it, before petitioning the Supreme Court for review.
The Janus case was put on hold until the Friedrichs case was resolved, and with it out of the way, now occupies the center stage with virtually identical legal issues.
The question, of course, is whether the Janus case would have the same slam-dunk outcome that Friedrichs would have had with Scalia casting a vote.
The answer depends on not only whom Trump nominates but how effective Democratic senators would be in either blocking his nominee or forcing him to select someone they could stomach.
The Senate’s new minority leader, New York’s Charles Schumer, said this month, “If (Trump and his staff) don’t appoint someone who’s really good, we’re going to oppose them tooth and nail.”
However, Schumer’s play may depend on whether Republicans are willing to use the so-called “nuclear option” and set aside the 60-vote rule that has generally governed confirmations, but that Schumer’s predecessor, Harry Reid, had already eroded.
All of this means that the CTA and California’s other big public employee unions will be monitoring the situation closely and doing whatever they can to support Schumer.
As with the Friedrichs case, the unions’ almost total political power in California is at stake.