On the day Friedrichs was argued, those hoping for signs of a union-friendly Scalia left the Court severely disappointed. With his trademark gusto, Scalia tore into core arguments made by the union and government attorneys. Conservative pundits could barely contain their joy, while liberals began editing their obituaries for the American labor movement.

But with news of Scalia’s passing on Saturday, a new question emerged: Assuming Justice Scalia was indeed part of a five-justice majority to hold mandatory union fees unconstitutional, what will become of Friedrichs? There are two possibilities. First, sometime between now and July, the Court could hand down a 4-4 decision. A tie goes to the victor in the lower court, and in this case the union won handily before the Ninth Circuit Court of Appeals, which simply applied Abood. Second, the Court could hold the case over for re-argument once a new justice is confirmed. But the Court may be unwilling to leave Friedrichs and other close cases undecided while a confirmation battle plays out—especially because that battle seems to be shaping up to last a year or more.

At minimum, then, Abood is nearly certain to remain good law through the 2016 election. That alone is a victory for public unions, which will not be forced to divert member dues away from political activity in the middle of a presidential-campaign season.

If the Court does set Friedrichs for re-argument—or if the issue reaches the Court again in another case, as it is likely to do—then the outcome will all be down to the new Justice. A Justice appointed by a Democrat is much more likely to vote to uphold Abood than one appointed by a Republican, though there are no guarantees. For example, Judge Sri Srinivasan, a likely President Obama nominee, has decided several First Amendment cases during his two and a half years on D.C. Circuit, but none addressing union fees. Still, Srinivasan voted to reject free-speech challenges to commercial-disclosure requirements, as well as against First Amendment protection for a public-school teacher who sent an email criticizing school conditions to Chancellor Michelle Rhee. These votes bode well for public-sector unions, though extrapolating from cases in which appellate judges are bound to apply Supreme Court precedent can be perilous. Conversely, potential Republican nominees, such as former Solicitor General Paul Clement, are more likely to follow in the steps of Justice Samuel Alito, who has been remarkably hostile to public unions.

If Abood stands—either because of a 4-4 decision or because a new Justice provides the fifth vote to affirm it—it will not spell the end of challenges to public-sector unions. Cases with the potential to chip away at organized labor will continue to reach the courts in significant numbers no matter what, and they will proliferate if the next justice is a Republican appointee. More important, states may still adopt “right-to-work” laws banning mandatory union fees, as the West Virginia legislature voted to do last week, or to eliminate collective bargaining for public employees altogether. Thus, a favorable decision in Friedrichs will not eliminate contentious fights over union rights—it will just move them to state governments, which increasingly lean Republican.