The Supreme Court reached a decision in the case Friedrichs v. California Teachers Association On Tuesday. The first major case, presumably of many, to be affected by Justice Scalia’s abrupt death. The case involved 10 nonunion public school teachers who argued their free speech rights were violated by having to pay the equivalent of union dues. Prior to Justice Scalia’s passing many commentators viewed the court’s conservative wing (Roberts, Alito, Thomas, Scalia, and Kennedy) as very amenable to the arguments made by Friedrichs and postulated the Court would overturn Abood v. Detroit Board of Education and hold that forcing public sector workers to pay union dues or their equivalent violated the First Amendment. Instead the Court split in a 4-4 decision leaving the 9th Circuit’s ruling, that teachers must pay fees associated with collective bargaining despite the fact they are not union members.

Specifically, the case presented two issues: (1) whether Abood v. Detroit Board of Education should be overruled, and (2) does it violate the First Amendment to require that employees affirmatively object to fees subsidizing activities unrelated to collective bargaining.

In Abood the Supreme Court held that public employees may be required to pay union dues, or their equivalent, to their local union affiliate even if they have opted to not join the union. This has become colloquially known as a “fair share” fee. The argument is that since public sector unions negotiate on behalf of all public sector employees, even if they are not part of the union, the union should be compensated for those negotiations by all employees (preventing what unions call a “free rider” problem).

In 2014 the Supreme Court took on a similar case, Harris v. Quinn. In that case the Court declined to extend the Abood precedent to Illinois home-health workers. However the Court stopped short of blocking unions from collecting such fees from other public employees. In his opinion Justice Alito hinted that the Court would be responsive to a case with a more generally applicable set of facts that challenged Abood head-on.

At oral argument, the conservative Justices downplayed the free rider problem, which was the California Teachers Association’s, and Abood’s, main justification for compelled dues. Justice Kennedy instead stated that, under the current arrangement, there is a “compelled rider” problem where employees who do not agree with the union’s political positions are forced to pay. Justice Scalia stated that he believed bargaining by public sector unions was inherently political. This echoed Friedrichs’s argument, that because collective bargaining by public sector unions affects government budgets, that bargaining involves political decisions.

Friedrichs’s second argument was that the First Amendment prohibits unions from forcing employees to affirmatively opt-out of fees that subsidize activities unrelated to collective bargaining. Under California law public sector employees must affirmatively opt-out of such fees by providing the union with a written notice after the fee has been deducted from the employee’s paycheck. The fee will then be refunded. Friedrichs argued this opt-out procedure is a large enough burden to violate the First Amendment and instead unions should only be allowed to charge fees to those who affirmatively opt-in. The Justices did not dwell on this issue during oral argument.

When the Court splits evenly on a case, the decision of the court below (in this case the 9th Circuit Court of Appeals) is automatically affirmed without published opinions.