Richard Wolf

USA TODAY

WASHINGTON — Conservatives bent on crippling the power of public employee unions lost their best opportunity in years Tuesday when the Supreme Court deadlocked over a challenge to the fees those unions collect from non-members.

Rather than seeking to reschedule the case for their next term, the justices simply announced they were tied 4-4 — a verdict which leaves intact the decision of the U.S. Court of Appeals for the 9th Circuit upholding the fee collections.

That was a major victory for the unions and the court's four liberal justices following Justice Antonin Scalia's death last month. During oral argument in January, it had appeared almost certain that the court would strike down the requirement in 23 states that teachers and government workers contribute to the cost of collective bargaining, even if they disagree with their unions' demands.

The result would have been the demise of a nearly 40-year-old Supreme Court precedent that allows unions to impose such requirements on non-members. It would have made it harder for unions representing teachers, police and firefighters, and other government workers to maintain their power by affecting their pocketbooks.

The judicial deadlock allows the California Teachers Association to keep collecting the fees, but it does not have nationwide impact. The 9th Circuit standard applies only to states within its jurisdiction, including Alaska, Arizona, Idaho, Montana, Nevada, Oregon and Washington as well as California.

The challengers in the case immediately promised to file a petition asking for a rehearing when the court returns to full strength. But five votes are required to win that effort. The court also could accept a similar case in the future; the National Right to Work Foundation has five cases in lower courts now that seek to strike down mandatory union dues and fees.

“With the death of Justice Scalia, this outcome was not unexpected,” Terry Pell, president of the Center for Individual Rights, said. “We believe this case is too significant to let a split decision stand.”

It was the second time in two weeks that the justices had deadlocked in the wake of Scalia's death, but the first major case to emerge in a tie. And it's an indication that without Scalia, the justices may be equally divided in several other cases before the term ends in June.

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Although the court's one-sentence opinion did not break down the vote, oral arguments on the hotly contested labor case made clear that the court's four liberal and four conservative justices were on opposite sides.

The justices could have rescheduled the case for when the court is back to full strength. But that could take a year or more, because Senate Republicans have refused to consider President Obama's nomination of federal appeals court Judge Merrick Garland to replace Scalia.

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The case, Friedrichs v. California Teachers Association, signified a major threat to public employee unions that represent nearly 36% of government workers — far more than the plummeting average for unions overall. Only 11% of Americans belonged to unions in 2014.

If the justices had ruled that the free speech rights of non-members entitled them to contribute nothing to the costs of representation — they already can opt out of financing unions' political activities — more workers likely would have become "free riders." That would have led to a drop in membership and revenue.

“The U.S. Supreme Court today rejected a political ploy to silence public employees like teachers, school bus drivers, cafeteria workers, higher education faculty and other educators,” said Lily Eskelsen Garcia, president of the National Education Association. “In Friedrichs, the court saw through the political attacks on the workplace rights of teachers, educators and other public employees. This decision recognizes that stripping public employees of their voices in the workplace is not what our country needs.”

The 325,000-member teachers union, which spends more on politics than any special interest group in the state, warned in its high court brief that tens of thousands of contracts governing millions of workers nationally could be thrown "into disarray." More than 4.5 million teachers are union members.

The lawsuit was brought by the conservative Center for Individual Rights, which along with the National Right to Work Legal Defense Foundation has sought to overturn a 1977 Supreme Court decision that allowed public employee unions to collect "fair share" fees from non-members for the costs of collective bargaining.

Rebecca Friedrichs, an elementary school teacher who was the lead plaintiff, had spent several years as a union officer and found its leadership unwilling to consider her suggestions. She opposed tenure laws that make it harder to fire bad teachers, seniority rules that ignore merit — even salary increases that lead to larger class sizes.

The battle had divided the nation almost equally between states where laws govern collective bargaining for public workers and those where workers can't be forced to join unions or contribute to them.

Defenders of the current system contended that so-called "right to work" laws, in states mostly led by Republicans, lead to inferior education and public services. Average test scores are lower for students in those states on fourth- and eighth-grade math and reading proficiency tests.

A brief filed by 21 states led by Democrats said fair-share fees lead to improved government efficiency and labor peace, because states can negotiate with just one union and strikes are more easily averted.

Moreover, a brief submitted on behalf of public safety unions said a defeat "risks setting in motion a union 'death spiral' — as membership drops, the union will have to increase dues to cover its expenses, which will create further incentives for additional workers to quit the union."

The challengers didn't buy any of those arguments. Mark Mix, president of the National Right to Work Legal Defense Foundation, had said those who oppose their local unions but are forced to pay many hundreds of dollars annually to support them "are not free riders. They're captive passengers."

Michigan and 17 other Republican-led states told the court that all collective bargaining at the government level amounts to lobbying, with taxpayers paying for the results. They blamed union contracts for municipal bankruptcies from Detroit to Stockton, Calif.

The high court's 1977 ruling in Abood v. Detroit Board of Education upholding union payments by non-members was unanimous, but the current court had moved away from it in two recent cases.

In 2012, the justices ruled 7-2 that a California public employees union could not impose an additional fee on workers without their assent. In 2014, they ruled 5-4 that Medicaid-funded home-care workers in Illinois did not have to pay dues to public employees unions because they were not typical state workers.

While neither case overruled Abood, the trend appeared clear. Justice Samuel Alito wrote in 2014 for the court's conservative majority that except in rare circumstances, "no person in this country may be compelled to subsidize speech by a third party that he or she does not wish to support."

In the end, however, Alito needed Scalia's fifth vote, and the leader of the court's conservative bloc died before he could provide it.