After the passing of Justice Antonin Scalia, we
predicted: "Justice Scalia's passing will immediately
impact several employment-related cases pending before the
Court." Specifically, cases in which Scalia was expected to
provide the needed fifth vote were at risk of ending in a tie.
After two recent rulings from the Court, this prediction appears to
have come true.
The noticeable repercussions of a Court composed of an even
number of justices were first displayed in Friedrichs v.
California Teachers Association et al. When the Court granted
certiorari in Friedrichs, some commentators believed the case signaled the death of
mandatory union fees for public employees. These commentators'
beliefs were based on their observation that some members of the
court, particularly Justice Alito, questioned the Court's
decision in Abood v. Detroit Board of Education
upholding mandatory union fees. For instance, the Court's
Harris v. Quinn opinion, which was joined by
