Female genital mutilation case tossed following years long fight

Scalia’s death could help unions win fee case

Mark Sherman
Associated Press

Washington — Justice Antonin Scalia’s death deprives conservatives of a key vote that could change the outcome in some major Supreme Court cases, including one in which labor unions appeared headed for a big defeat.

Next month’s Supreme Court arguments in a clash over contraceptives, religious liberty and President Barack Obama’s health care law also now seem more likely to favor the Obama administration.

Those are the most immediate effects on the court after the loss of its longest-serving justice.

It’s a firm Supreme Court rule that decisions are not final until they are handed down. So nothing Scalia did or said in pending cases matters to the outcome.

“The vote of a deceased justice does not count,” veteran Supreme Court lawyer Roy Englert said Sunday.

Subtracting Scalia’s vote from cases in which he was in the majority in a 5-4 split leaves the result tied, four a side.

The remaining eight justices have two options in that situation: They can vote to hear the case a second time when a new colleague joins them or they can hand down a one-sentence opinion that upholds the result reached in the lower court without setting a nationwide rule.

A second round of arguments seems less likely at the moment because a new justice may not be confirmed until the next president is in office.

A tie vote, by contrast, resolves the case at hand and allows the legal issue to return to the court at a later date when there is a ninth justice.

Public sector labor unions had been bracing for a stinging defeat in a lawsuit over whether they can collect fees from government workers who choose not to join the union.

The case affects more than 5 million workers in 23 states and Washington, D.C., and seeks to overturn a nearly 40-year-old Supreme Court decision.

Now, what seemed like a certain 5-4 split, with the conservatives in the majority and the liberals in dissent, instead looks like a tie that would be resolved in favor of the unions, because they won in the lower courts.

“That’s a big loss. It was all teed up and it looks like it’s not going to go anywhere now,” said Brian Fitzpatrick, a Vanderbilt University law professor who once served as a law clerk to Scalia.

In Michigan, thousands of public school teachers stopped contributing to the union after the state’s new right-to-work law took effect in 2013. Membership in the Michigan Education Association has since dropped by 19 percent.

Unions fear the potential loss of tens of millions of dollars in fees could reduce their power to bargain for higher wages and benefits for teachers, firefighters, sanitation workers and other government employees.

Other big cases before the justices include affirmative action, abortion and immigration.

With Justice Elena Kagan out of the affirmative action case, the court still is more likely to rule, 4-3, in favor of a challenge to the consideration of race in admissions to the University of Texas.

On abortion and immigration, a 4-4 tie would sustain lower court rulings in favor of Texas’ regulation of abortion clinics and a Republican-led challenge to an Obama administration plan to allow millions of immigrants who are in the country illegally to avoid deportation and acquire work permits.