SCOTUS Ties: Republican Chickens Come Home to Roost

U.S. Supreme Court Building, Washington, D.C.

U.S. Supreme Court Building, Washington, D.C.

The Republicans in the U.S. Senate are mighty proud of themselves for stopping President Obama from appointing a successor to the late Justice Antonin Scalia. True, they had to make up fake history to explain their refusal to discharge their constitutional duties. And it has been amusing to see some of the Republican senators (cough-Lisa-Murkowski-cough) who are facing re-election troubling themselves to meet with the Antichrist Judge Merrick B. Garland, President Obama’s nominee to the court.

The problem for the Republicans, of course, is that the business of the U.S. Supreme Court doesn’t stop just because the court presently has eight members. Pending cases result in opinions; oral arguments in new cases continue to be heard. Important issues continue to be presented in petitions for certiorari.

And a court with eight justices is a different court than one with nine justices. And when the missing vote is the court’s arch-conservative, well, the chemistry is really different.

That’s why we’re getting decisions like the 4-4 affirmation of the 9th Circuit Court of Appeals in Friedrichs v. California Teachers Association. That was the case challenging the right of public sector labor unions to charge non-union members a fee to cover the costs of collective bargaining. A California teacher named Rebecca Friedrichs sued the California Teachers Association, claiming that having to pay any fees at all for union representation was a violation of the First Amendment. Friedrich wasn’t a member of the CTA, but she and other non-union teachers still had to pay a fee intended to cover the cost of collective bargaining. The idea is that since all workers benefit from collective bargaining, it’s only fair to have everybody pay for the costs of that collective bargaining, even workers who choose not to join the union. Otherwise the non-union teachers would be “free riders,” gaining the benefits of higher wages and job protections that come from a union’s collective bargaining, but not paying their share of the union’s costs in negotiating those benefits. Friedrichs argued that forcing non-union teachers to pay a fair share fee violated her First Amendment rights, since it compelled her to give money to an organization with which she disagreed, even if it resulted in their getting a raise or job security.

The Koch brothers, always the friend of someone with an irrational dislike of unions, subsidized Friedrichs’ legal fees for her challenge. Maybe the outcome would have been different if Justice Scalia were still on the court. But he’s gone, so the court split 4-4, and the 9th Circuit Court of Appeals’ decision finding no violation of Friedrich’s rights remains the law of the land. Or at least the land west of the Rockies.

Bummer. The Koch brothers wasted their money. But they have lots left. And they will doubtlessly spend a chunk of it keeping anyone reasonable from being confirmed to the SCOTUS.

You’re going to get to see this scenario play out over and over. Woody Hayes, the late Ohio State University coach – famous for punching an opposing team’s player who had intercepted a pass – used to say that a tie was like kissing your sister.1 WC supposes Coach Hayes would know. But if Coach Hayes is right, the right wing is going to have some mighty chapped lips. And ties do have consequences in the law.

Don’t you hate it when your agenda comes back and bites you in the butt?


  1. Also attributed to Texas Coach Darryl Royal and Alabama Coach Bear Bryant. 

One thought on “SCOTUS Ties: Republican Chickens Come Home to Roost

  1. I have read that some corporations that were planning to have cases heard by the SCOTUS have now decided to settle with plaintiffs because Scalia is no longer on the court. Their lawyers hinted that they were depending on Scalia to rule in their favor. Imagine that—a partisan on the SCOTUS who was a reliable vote in favor of right-wing plaintiffs.

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