February 14, 2016

Scalia’s Passing A Big Break For Teachers Unions

By Bellwether

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It looks like the death of Antonin Scalia is breathing new life into the teachers unions.

You really couldn’t find anyone on any side of the issue who thought the unions were going to win the Friedrichs case over mandatory union dues. Close court watchers and experts agreed after the arguments last month that this was about a close to a slam dunk as you’re going to see at the high court.

Yet with Scalia’s sudden passing a 4-4 tie is now the safe bet because Friedrichs seemed likely to be 5-4 not 6-3. What does this mean? 4-4 cases like this are not precedent setting, so it doesn’t settle the issue. But a 4-4 will uphold the lower court decision in favor of the unions (which, ironically, the Friedrich’s team wanted and facilitated in order to hurry the case to the Supreme Court to have that decision overturned). And then, like a lot of issues, what the court does in the future will turn on who replaces Scalia on the court – not surprisingly a lot of political pushing and shoving over that already. This is also probably* true of the affirmative action case the court was considering and other controversial cases.

For the teachers unions, like we just saw with the Denver Broncos, you don’t have to win with style, you just have to win. And it appears they have for now.

Here’s President Obama’s statement on Scalia’s passing. The President talks about his education but there is another education angle: a 1953 graduate of Xavier High School in New York City, Scalia never forgot what he learned there about grammar and writing. His decisions were well-written and often entertaining to read whether you agreed with them or not.

*Or probably not. Justice Kagan recused herself from this case so some sort of majority could emerge depending on Justice Kennedy.

Update: More on Friedrichs implications via LAT’s Blume including the revealingly quirky situation where, prior to the oral arguments, the unions were pinning their hopes on Scalia(!) as a possible ally. Dmitri Mehlhorn on the Friedrichs fallout and next steps. Related: Current and former Supreme Court justices on Scalia. Stephen Carter on our corrosive discourse. Cass Sunstein on Scalia.  Flashback: John McWhorter defending Scalia during the furor after the recent affirmative action oral arguments.

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