Polman: Scalia dies, unions win

Dick Polman
Dick Polman

When Senate Republicans hatched their scheme to stonewall President Obama's Supreme Court nominee — whoever it might be, regardless of merit — they overlooked the ramifications of a year of 4-4 decisions.

Whenever the high court is stalemated, the lower-court rulings prevail. And it just so happens that the lower courts are predominantly blue. After seven years of Obama appointees, nine of the 13 federal appeals courts have Democratic majorities. As one legal analyst wrote, "Two-thirds of the people in the country live in blue-court America."

Last winter, when Antonin Scalia was alive and seemingly well, it appeared that organized labor was on the cusp of losing a major case. The five Republican appointees seemed poised to write a 5-4 decision that would threaten the financial survival of many unions.

But then Scalia died. So much for that 5-4 Republican majority.

A conservative legal group had argued in a Supreme Court hearing that public employees who choose not to join unions should not be required to pay union dues — or, as they're called in California, "agency fees." Lawyers for the union in question, the California Teachers Association, contended that these non-member employees should indeed be dunned for money, because they benefit from the same collective bargaining gains as their unionized colleagues. Which is why California law requires those agency fees; 19 other states agree that these non-member employees shouldn't get something for nothing.

It was clear from the hearing that the unions were going to lose the case. Scalia's questioning was particularly (and predictably) hostile. But then the grim reaper came along. And Tuesday, the court announced its decision: A 4-4 deadlock. Or, as the court tersely stated, "The judgment is affirmed by an equally divided court."

And whose judgment would that be? The judgment of the appeals court that ruled on the case. And it just so happens that the arbiters in Friedrichs v. California Teachers Association sit on the 9th Circuit Court of Appeals. Which is one of those blue majority courts that I referenced earlier. And this blue majority court ruled in favor of the unions.

Bingo! The unions' loss becomes a win.

This is precisely the power shift that Republicans are stuck with. If they were to confirm the eminently qualified Merrick Garland (at least one Republican senator met with him and didn't get cooties), they'd officially kiss their 5-4 majority goodbye. Short of confirmation, or even due consideration, their fallback is to obstruct the nomination process — no big stretch, since obstruction is what they do so well — and keep the seat vacant clear into 2017. But the result is that even the 4-4 deadlocks tilt against them, thanks to the blue dominance of most lower courts.

And so it went on Tuesday, in the first vivid manifestation of the new reality. The best Republicans can hope for is that the court will be rescued next year, and redirected to its rightful path in perpetuity, by a duly credentialed nominee tapped by President Trump. Insert joke here.

Dick Polman is the national political columnist at NewsWorks/WHYY in Philadelphia ( and a "Writer in Residence" at the University of Philadelphia.