The Center for Individual Rights plans to ensure the full Supreme Court – including a newly confirmed Justice – can render an authoritative decision in Friedrichs v. CTA.
The recent, untimely death of Justice Scalia has raised numerous questions how the Court will proceed with cases where Justice Scalia participated in arguments but had not issued a final opinion. Many Court reporters assumed that Friedrichs would be a 5-4 decision in favor of Rebecca Friedrichs and teacher’s rights.
If these predictions are correct, then the current panel of eight Justices would result in a 4-4 decision which would not settle the question of whether compulsory dues are constitutional. If the Court were to issue such a decision, the lawyers for Rebecca Friedrichs and the nine other plaintiffs will file a motion for rehearing, asking that a full Court settle the vitally important First Amendment questions affecting Rebecca Friedrichs and thousands of teachers across the country.
In such a closely contested matter involving fundamental individual rights, both the parties and the country deserve an authoritative and final decision by the full Supreme Court. A divided opinion will only undermine labor peace by leaving the compulsory collection of sues subject to ongoing doubt, controversy, and further litigation.
The decision to grant a rehearing is fully within the discretion of the court, and there is established precedent for such an action. In 1985, Justice Powell took a leave of absence for surgery. While he was away the Court ordered several cases with a close vote to be reargued upon his return. Several cases were also reargued after the appointments of Justice Thomas and Justice Kennedy.
Within hours of Justice Scalia’s death, union supporters gleefully proclaimed the case done and over with as the result of the tragic death of one Justice. This hasty conclusion overlooks the crucial need for our Supreme Court to settle controversial questions of individual rights authoritatively after full deliberation. Rebecca Friedrichs, the nine other plaintiffs in this case, and the thousands of public employees across the country deserve to have constitutionality of compelled dues settled by the full court.