By Barbara Leonard

Without a ninth justice to break the tie, the equally divided Supreme Court upheld a big win for government-employee unions Tuesday.
The court did not issue any opinion on the case, but the outcome marks a stark contrast to the forecast from its hearing earlier this year.

With conservative justices outnumbering union-friendly liberals in January, the court seemed poised to pull the drain on millions of dollars of fees collected by public-sector unions.

California is one of 23 states, including the District of Columbia, that has a law requiring public employees to pay union agency fees even if they chose not to join the unions.

Rebecca Friedrichs led a group of 10 California teachers and the Christian Educators Association International in the case at hand, challenging the nearly $1,000-a-head in fees that the California Teachers Association collects from teachers each year, regardless of their union membership.

Saying the fees are meant to implore good-faith collective bargaining, the unions argued that they fund the negotiation of employment-contracts from which all government workers, whether union members or not, inherently benefit.

Friedrichs and her attorneys at Jones Day meanwhile likened government collective bargaining to taxpayer-funded lobbying, a way of forcing union-opposed teachers to subsidize actions with which they do not agree.

The case posed a referendum on both the powerful 325,000-member teachers union in California, and the way public employee unions operate across the country.

Justice Antonin Scalia put tough questions to the union’s attorney at the January hearing but died on Feb. 13 before the court had reached its decision.

His vote would likely have tipped the scales for the fee-opposed teachers, as the court split 4-4 without him Tuesday.

Such ties leave intact the last ruling on a case – here that ruling was a Ninth Circuit victory for the unions. The Friedrichs case is the second of the term that the court has affirmed by divided vote. Last week, discrimination claims in the case Hawkins v. Community Bank of Raymore met the same outcome. Scalia’s absence has also affected the court’s less visible votes, such as whether to block a burdensome ruling pending appeal or whether to take up a case.

The California Teachers Association derives its power to charge fees from the high court’s unanimous 1977 decision in Abood v. Detroit Board of Education.

At the January hearing, Jones Day’s Michael Carvin called upon the justices to overturn “Abood’s authorization of this clear First Amendment violation.”

The court must do so “both to end this ongoing deprivation of basic speech and association rights, and to restore consistency and predictability to the court’s First Amendment jurisprudence,” Carvin added.

The Supreme Court has moved away from the Abood ruling in recent years. In 2012, the court ruled 7-2 that another California union couldn’t compel additional fees. Two years later, it ruled 5-4 that certain Illinois health care workers do not have to pay dues to employee unions.

A reversal this term would have sent the nation’s teachers unions, a number tipping more than 4.5 million, scrambling to reinvent sources of funding.

In 2013, the California Teachers Association collected more than $170 million in fees.

California Solicitor General Edward Dumont argued at January’s hearing for the state.

The court’s liberal justices noted at the hearing that a reversal could also affect mandatory bar-association fees.

While pleased that the court affirmed, Constitutional Accountability Center president Elizabeth Wydra condemned Republican obstructionism in the Senate against the speedy appointment of a ninth Supreme Court justice.

“Today’s divided ruling from the Supreme Court establishes no national precedent while leaving open the possibility that the issue will come before the court once again,” Wydra said in a statement. “Such an outcome only emphasizes the importance of a Court that can operate with a full complement of nine justices that can resolve important legal questions from lower courts once and for all.”

Democratic presidential contender Bernie Sanders echoed the sentiment, saying American workers need a full court to protect their collective-bargaining rights.

“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 of the workers they are legally bound to represent,” the Vermont senator said in a statement. “We cannot allow that to happen.”

Noting the union-busting efforts that have spread from Wisconsin to California, Sanders said collective-bargaining rights need more force, not less.

“While Republican governors like Scott Walker and the Koch brothers may not like it, we are going to make it easier, not harder, for American workers to form a union,” Sanders said.

“When unions are strong, the middle class is strong,” he added.