Scalia’s death, the Labor Movement, and Fredrichs v. CTA

Justice Scalia’s death came as a complete surprise and raises many questions as to the disposition of Supreme Court cases this term, Friedrichs v. CTA chief among them and the future of the labor movement. While lengthy discussions on the implications will continue here is our first take:

We remain fully committed to our organizing mobilization efforts. That is paramount regardless of what happens in Friedrichs v. CTA

The impact of Justice Scalia’s death on pending Supreme Court cases where rulings have not been issued is not yet known. The possible outcomes are outlined below:

Such cases may be decided by the remaining eight justices.

If the remaining justices are split evenly, there are three choices available to them:

1) They could issue a 4-4 decision, which would have the impact of upholding the ruling of the Court of Appeals; in Friedrichs v. CTA that means leaving Abood (and fair-share dues) intact. CTA would win the case.

2) They could decide to have the case reargued in the next term of the Supreme Court once a new justice has been confirmed. (Even though Sen. McConnell has already said he would not confirm a new justice, it is conceivable that a justice could be confirmed before the end of the term. However, in order for that justice to vote on the decision, oral argument would have to be rescheduled for the benefit of that justice, which seems quite unlikely.)

3) The remaining justices might decide to resolve the case on procedural non-substantive grounds, meaning, for example, addressing the failure to establish a record in the courts below, thus keeping intact the Abood precedent.

Additionally, we have been asked if an opinion or vote can be rendered posthumously. Every scholar consulted said no. (For example, see the SCOTUS blog at

We may not know the impact on Friedrichs v. CTA until later in this term, perhaps as late as June. While we wait, remember that no single court case will determine the fate of the labor movement or impede the collective will of our members and our movement to improve the lives of our families and our communities.

What we do know is that this development underlines the importance of the upcoming election—and the power of the president to nominate members to vacancies on the Supreme Court.

The bottom line is that we need to stay the course on our organizing efforts and our preparation for a post-Friedrichs world.

Thanks to AFT National for providing us with the core information for this communication.

In Unity,

Tim Killikelly
President, AFT 2121

Posted in E-news Archives, President's message

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