- The long-shot petition marks the latest sign of the impact of Justice Antonin Scalia's death on the court's docket
- Scalia's absence in the case produced an unexpected victory for progressives
The long shot petition marks the latest sign of the impact of Justice Antonin Scalia's death on the court's docket -- and hits at one of the Obama administration's arguments for confirming Judge Merrick Garland to the bench -- that 4-4 decisions offer don't set binding precedents.
The teachers brought a First Amendment challenge, arguing that as non-members of a public sector union, they should not be compelled to pay fees germane to collective bargaining.
At arguments before Scalia's death, the court seemed poised to overturn 40-year-old precedent and deal a blow to unions. After his death, however, the court announced it was deadlocked in the case and automatically affirmed the lower court opinion that had gone in favor of the unions.
Scalia's absence in the case produced an unexpected victory for progressives, although the opinion produced no national precedent.
In Friday's petition for rehearing, Michael A. Carvin, a lawyer for the teachers, said that the issue is "too important to leave unsettled" and noted that there are similar cases percolating in the lower courts. Carvin said that to leave the issue unresolved "would needlessly prolong the prevailing uncertainty on issues that recur constantly and that affect millions of public employees in the more than 20 states" that allow such fees.
To prevail on the petition, the teachers would need five justices to vote in their favor.
The White House, pushing against Republican Senate opposition to hold hearings or vote on Garland's nomination, has brought up the issue of a divided court, saying that nine justices are needed to create decisive, national rulings on controversial issues such as race discrimination, separation of church and state, abortion and police searches.
"The framers designed our system to give one Supreme Court the responsibility of resolving conflicts in the lower courts," Vice President Joe Biden said at a speech at Georgetown University
last month, adding that if those conflicts are allowed to stand, "we end up with a patchwork Constitution."