A well-planned legal assault on public unions collapsed Tuesday when the Supreme Court deadlocked over a California woman’s lawsuit to strike down mandatory fees, the strongest evidence yet that Justice Antonin Scalia’s death has stymied the court’s conservatives.

The 4-4 split keeps in place a 1970s-era rule that authorizes unions to require municipal employees, teachers, college instructors and transit workers to pay a “fair share fee” to help cover the cost of collective bargaining.

The tie vote, widely expected after Scalia’s death, nevertheless came as a relief to union officials who feared the conservative justices were on the brink of striking down the pro-union law as a violation of free speech.

In another sign Tuesday that the high court continues to grapple with the vacancy left by Scalia, justices asked for additional briefings in a pending dispute over the Obama administration’s contraceptive mandate under the Affordable Care Act.


The request looks to be an attempt by the justices to find a compromise in that case, which appeared evenly split during oral arguments earlier this month.

Tie votes could be a theme this year as justices vote on several major disputes that divide along ideological lines, including abortion, election districts and immigration.

The White House said the court’s deadlock in the union case underscores the need for the Senate to confirm the president’s nominee, Merrick Garland, chief judge of the U.S. Court of Appeals for the District of Columbia Circuit, to replace Scalia. The Republican-controlled Senate is refusing to act on Garland’s nomination, saying the next president should fill the seat.

“With a Supreme Court that’s not fully staffed, it makes it more likely that situations can arise across the country with different rulings in different courts that aren’t resolved by the Supreme Court,” White House Press Secretary Josh Earnest told reporters aboard Air Force One.


Earlier this month, the court split, 4-4, in a narrow case involving spousal liability and gender discrimination, the first such vote since Scalia’s death.

The deadlock in the union case leaves in place mandatory fees allowed by law in California and 22 other mostly Democratic states. Such fees are prohibited in “right to work” states across the South and in much of the Midwest.

Orange County teacher Rebecca Friedrichs and several others had sued to overturn the fees, saying they objected being forced to support the California Teachers Assn.

The U.S. 9th Circuit Court of Appeals rejected her suit, citing the 1977 Supreme Court ruling in Abood vs. Detroit Board of Education, which had authorized these fair share fees in the first place. That case held that workers could be required to share in the cost of collective bargaining, but they did not have pay for a union’s political activities.


Before Scalia’s death, the court’s five more conservative justices had served notice that they were ready to overturn Abood and declare such forced fees as unconstitutional. The same five justices who in the Citizens United case struck down campaign spending limits on free-speech grounds seemed to view the unions fees as a 1st Amendment violation because employees were forced to pay to support a union they opposed.

Instead Tuesday, the justices issued a one-line statement saying the 9th Circuit’s ruling is “affirmed by an equally divided court.”

Labor law scholars said unions would have been crippled if nonmembers had no longer been required to pay anything to support the union. “It would have been like a knife in the heart of the unions,” said Gary Chaison, professor of industrial relations at Clark University in Massachusetts.

The National Education Assn. -- the nation’s largest union with 3 million members -- hailed the outcome as a victory. Eric Heins, president of the California teachers group, said “wealthy corporate special interests” had brought the case to “make it harder for working families and the middle class to come together, speak up and get ahead. Now it’s time for senators to do their job and appoint a successor justice to the highest court in our land.”


Presidential hopeful Sen. Bernie Sanders agreed that the deadlock “underscores the need to a confirm a Supreme Court nominee who will protect the rights of American workers to collectively bargain for fair wages and safe working conditions. The extreme right wing is just one conservative Supreme Court justice away from dismantling the rights of public sector unions to organize and collectively bargain on behalf of all workers.”

Conservatives said they saw no incentive to allow Obama to appoint another left-leaning judge, which would give the court a liberal majority for the first time in generations.

Curt Levey, executive director of the FreedomWorks Foundation, said that the Supreme Court would shift “dramatically to the left with the appointment of Merrick Garland or any other liberal, [and] become a rubber stamp not just for the wishes of powerful labor unions, but also for virtually the entire progressive agenda.”

Terry Pell, president of the Center for Individual Rights, which helped launch Friedrichs’ lawsuit, said the group would try to raise the issue again. “We believe this case is too significant to let a split decision stand, and we will file a petition for rehearing with the Supreme Court,” he said.


A labor policy expert who supported Friedrichs said challengers should now to look to state legislatures to strike down the fees.

“With a divided court, thousands of public servants around the nation must still financially assist a government union that they disagree with,” said Trey Kovacs, a labor expert with the Competitive Enterprise Institute. “Now it is up to state legislatures to provide public employees with the freedom to choose whether or not to pay for union representation.”

In the Obamacare case, the justices said Tuesday that they wanted to hear further arguments on whether insurance companies may directly provide contraceptives to some women without the religious charities and nonprofit organizations that employ them and object to birth control playing any role.

Last week, the justices sounded evenly divided in a clash between the Obama administration and Roman Catholic archbishops over the contraceptive coverage that is now a required part of all health insurance plans under Obamacare.


The administration had previously said that the Catholic charities and other nonprofit religious groups need not pay for this coverage, but that they must formally notify the government of their religious objections so insurers can be ordered to provide the contraceptives.

But some Catholic leaders objected nonetheless and argued that notifying the government would trigger the coverage and make them “complicit in sin,” because they view some forms of the contraceptives as abortion.

On Tuesday, the justices asked lawyers on both sides to submit a new brief on whether insurance companies could be required by law to provide the contraceptive coverage on their own so that the church-based employer “would not required to submit any separate notice.”

The new briefs are due April 12. That suggests the justices still hope to decide the case this term.


On Twitter: @DavidGSavage

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