Supreme court stalemate is vexing

Editorial by Burlington Times-News, March 31, 2016

This was bound to happen. Tuesday, the eight surviving justices of the U.S. Supreme Court supercharged an already white-hot issue in the 2016 presidential campaign. With their 4-4 split but no opinion or other explanation, the justices in effect gave a big but perhaps temporary win to public employees unions. The implications for personal freedom, though, are unfortunate.

At issue in the case, Friedrichs v. California Teachers Association, was whether it’s unconstitutional for public-sector unions to charge “agency fees” — essentially dues — to nonmembers whom they represent but who don’t want to support union activities.

When the justices heard the case in January, they appeared ready to vote 5-4 in favor of 10 public school teachers who contend that being forced to pay fees violates their First Amendment protections.

But the death last month of Justice Antonin Scalia leaves this important issue — and likely several others in the court’s present term — with no settled resolution. That whooshing sound you hear is the collective chorus of politicians nationwide, most of them eager to tip the court’s balance to the left or the right. This tie on a labor law case important to liberals and conservatives alike will have each camp yearning all the more for a president — and a ninth justice — who share their worldviews.

Unions make the case that someone who benefits from their contract negotiations should pay for collective bargaining activities, if not for political activities. California is one of several states that says public employees who don’t belong to unions must pay such fees.

The problem with the unions’ position is that it starts and stops with that argument against workers they denigrate as “free riders.” The unions are a lot less eager to talk about workers’ rights to free speech and free association. With Scalia still on the bench, the court might well have undone a 1977 precedent, Abood v. Detroit Board of Education, and said the employees’ First Amendment rights are paramount.

When public sector unions negotiate contracts with governments, they pursue goals with public policy impacts: how much money taxpayers will spend on employees rather than on other priorities, whether workers who incompetently provide services can be fired, what enforceable guarantees citizens have that union members will even show up for work. Why should employees who disagree with a union on those issues be required to help advance its positions? As Justice Anthony Kennedy put it during oral arguments on Jan. 11, “the union basically is making those teachers compelled riders for issues on which they strongly disagree.”

But with the 1977 precedent still intact, so is a more recent Ninth Circuit appellate court ruling that, in effect, the 10 teachers still must pay fees to the California union.

This is the first major case in which Scalia’s absence contributed to a 4-4 tie. But it’s bound to happen again as Democrats and Republicans seem entrenched in immovable positions over the next Supreme Court appointment.

For now, the Supreme Court is brushing off what ought to be those First Amendment freedoms of speech and association. For lack of a decisive outcome with a written opinion, the rest of us are left to wonder why.

http://www.thetimesnews.com/opinion/20160331/editorial-supreme-court-stalemate-is-vexing/?Start=1