In this week’s Convergence File, a Scalia-less Supreme Court deadlock has left the door open for a pro-union ballot measure in South Dakota.
Back in January, when the fair-share union dues proposal made the ballot as Initiated Measure 23, I noted that the Supreme Court’s conservatives were likely to prevail and reverse a four-decade-old precedent allowing unions to require non-members to pay some portion of dues to cover collective bargaining and other services from which non-members benefit. But a couple weeks later, Justice Scalia died, and yesterday, the remaining eight justices split on Friedrichs v. California Teachers Association. That 4–4 split means we get no Supreme Court explanation, no new binding precedent, and thus, in this case, a victory for labor unions in the Ninth District who get to stick with the favorable ruling they got in the lower courts.
Elsewhere in the country, prior case law stands. Thus, Initiated Measure 23 can move forward, and unions can try to score a victory on the South Dakota ballot this November.
So go ahead, Senators Thune and Rounds. Leave that ninth seat on the Supreme Court unfilled. Your unwillingness to do your job leaves the door open for liberal victories.