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Supreme Court Deadlock on Union Dues Case Means IM 23 Can Proceed

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.


  1. leslie 2016-03-30 21:48


  2. leslie 2016-03-31 01:30

    MetLife, the largest U.S. insurance company, took the government to appeal its labeling by the Financial Stability Oversight Council as so big and entwined with the financial system that it could threaten the economy if it collapsed.The Treasury Department said it strongly disagrees with the federal judge’s ruling that it was not. “We are confident that FSOC’s determination was lawful and will continue to defend the council’s designations process vigorously,” it said.

    “FSOC conducted a rigorous analysis of MetLife, including extensive engagement with the company, and determined that material financial distress at MetLife could pose such a threat to the financial system,” the Treasury Department said. “We firmly believe that FSOC acted well within its legal authority to protect *the entire global economy*.”

    MetLife was the fourth nonbank financial firm to be given the label by the council. The others were

    American International Group Inc.,

    General Electric Capital Corp. — the finance arm of General Electric Co. —

    and Prudential Financial Inc.

    They did not appeal the designation. pretty important cases, mr. thune.

  3. jerry 2016-03-31 04:38

    There you go again leslie, finding stuff that is relevant to the whole shebang of why there are 9 Supremes in the first place. Thune and his little sidekick Rounds, do not understand that the laws of the land are not just to punish women and minorities, but actually entail many other important issues. While giving them face time to defend Trump and his ways, there is also a requirement to do the people’s work and that is to serve and protect us from all that is possible. Instead of taking matters of the wallet seriously, they pander off to the far right wing fox robots that shriek at their teevees but show up at their cracker barrels demanding notice. The earplugs these two wear are made of lobbyists moolah that have a time lapse on them so that after their arse kissing, they can then well afford mouthwash and move on. In the meantime, to big to fail has proven once again that it will fail indeed. Do you think we will remember Thune and Rounds as a part of the giant wheel that crushes us? Even if we did, they have such a cushion of cash, their fall from grace would be soft and easy.
    Civics classes should be mandatory in all schools. This would help prevent the ideologues from continuing to have a strong voice in our government.

  4. caheidelberger Post author | 2016-03-31 09:12

    I’m with you, Jerry. It’s simple civics: we need a fully functioning Supreme Court. I may cheer the 4–4 deadlock on Friedrichs because it luckily suits my political agenda, but even I acknowledge that a better result for Constitutional government and rule of law would be a clear Supreme Court ruling that establishes binding precedent and applies the law equally to all Americans. The specifics of this case aren’t quite that bad for the Constitution, since we already have the 1977 case law that applies the “fair share” union dues question equally to all Americans, and since a ruling in favor of Friedrichs would have flipped stare decisis. But the principle is there: the Constitution works better when the Supreme Court can render the final judgment for the nation in every case brought to it.

  5. Don Coyote 2016-03-31 09:41

    The Senate’s refusal to consider Garland’s nomination is irrelevant in the 4-4 vote in Friedrichs v. California Teachers Association. Even if Garland’s nomination had been confirmed by the Senate (unlikely considering the lack of time to even schedule nomination hearings), Garland would have been prevented from taking part in the final decision, considering that he was not involved in either oral argumentation or the conference of the justices.

    While leaving the ninth seat open may result in some more 4-4 votes, it does not necessarily guarantee any more liberal victories than the confirmation of a solid fifth liberal vote that Garland would represent. While Garland is characterized as a centrist/moderate by Obama, the New York Times places Garland next to Ruth Bader Ginsburg in terms of ideology.

    The Court has functioned in the past with an even number of justices. In fact one of the most significant decisions of the Court, Marbury vs Madison, was decided by a 6 member court with only 4 members partaking in the decision.

  6. caheidelberger Post author | 2016-03-31 09:55

    Marbury v Madison is irrelevant because it was a 4–0 decision. The Court functioned, but not optimally, because the even number of justices did not ensure that the Court would resolve the question nationally.

    Friedrichs is relevant, not because Garland would have been able to vote on it and break the tie, but because it demonstrates exactly the suboptimal functioning that Thune, Rounds, and Republicans like Don Coyote are accepting to support their hyperpartisan profaning of the Constitution.

  7. leslie 2016-03-31 10:15

    I have a stark recent phone photo of 7 dead skinned coyotes on the bank of a tiny receding pond out in the middle of nowhere (west river). the shooter likely a republican threw away the debris souring a water source. prolly just trying to pay for that high capacity magazine on his $1500 AR15. didn’t wanna muddy his/her Kevlar.

    elsewhere I saw a headline about gfp involved in 61,000 dead coyotes.

    2nd amend. my ass

    I assume don just went to USD, w/ fond ‘nostalgia’ for Carey’s, was it?? wuff

  8. John Wrede 2016-03-31 12:58

    I’ve said that there could be a remedy to this Republican Senatorial obstinate behavior and I’m curious about it. Would it not be entertaining to watch the argument make its way throught the courts? What say you, the voices of progressive wisdom?
    There is a maxim in the law, from the Latin, “Qui tacet consentire videtur, ubi loqui debuit ac potuit” (He who is silent, when he ought to have spoken and was able to, is taken to agree). 4 Wigmore on Evidence, 3rd ed., § 1071
    Thus, legally, consensus can be presumed to exist until voiced disagreement becomes evident.
    A corollary is that if you disagree, the onus is on you to say so.
    This legal principle has been recognized by the Supreme Court (Justice Scalia, no less) in the case United States v. Irvine and 1st Trust Nat’l Assoc., 511 U.S. 224, 114 S.Ct. 1473, 128 L.Ed.2d 168 (1994). For example, “the maxim qui tacet consentire videtur had also been applied, as between the parties, to certain mercantile dealings, as where an account current was sent to the party by letter, and no objection made to it within a given time, established by convenience or by commercial usage. * * *” Poy Coon Tom v. United States, 7 F.2d 109 (9th Cir., 1925).
    The Senate has a constitutional duty to “advise and consent” to Supreme Court nominations made by the President. If they do not perform that duty and register their objection to the nomination within a reasonable period of time (say, the average time it has taken in the past to consider and confirm or reject a nominee, about 90 days), then their silence on the issue can legally be considered their consent to the nomination.

  9. jake 2016-03-31 15:23

    John Wrede–and ranting and raving to the TV cameras and other press on the “right-ness” of their actions doesn’t really count, does it? After watching Trump perform agin last night with open mouth and no mind we could really hope for his nomination to SCOTUS, eh?

  10. bearcreekbat 2016-03-31 16:19

    John’s theory sounds a bit out there, but finds scholarly support by Harvard law professor Matthew C. Stephenson in the Yale law Journal:

    Interesting concept John, thanks for sharing!

  11. Don Coyote 2016-03-31 19:24

    @John: Not certain how tax law is relevant to the Art 2, Sec 2, Advise and Consent Clause, but playing devil’s advocate, one can argue that the Senate has not remained silent and has voiced disagreement with the Judiciary Committee Chairman by declaring that no hearings will be held until after the Elections in November.

    And just how does the Executive branch determine a “reasonable period of time” which seems to violate the separation of powers principle by conflicting with the Art 1, Sec 5 clause giving the Senate the sole power to determine the rules of it’s proceedings?

    By your clock, Robert Bork would have been confirmed tacitly since the Senate took 115 days to reject his nomination. As they say in Rome, “cave quid vis”.

  12. John Wrede 2016-03-31 21:09

    I think that is the entire point. The principle has not been tested in the instant context and therefore remains viable until proven inadequate authority by the court. The ruling in Irvine and 1st Trust Nat’l Assoc. is but a mere reflection of the prescriptions of evidence as stated in Wigmore. I fail to see how such is confined strictly to tax law. I would argue that the Senate Judiciary Chairman was the first to “refuse a hearing” which, in literal terms, does not suggest a thumbs up or down vote on approval of the nomination but rather a declaration not to engage the process of “advise and consent.” The R majority leader in the Senate and other Senators have simply refused to disagree with the leadership theory that a hearing would deprive the Nation of an opportunity to select it’s next Supreme Court Justice. I can’t find language in that disengenuous assertion that hints at disapproval of the nomination. Prior review of Garlands nominations and approval to the appellate court would seem to set precedent that firmly supports the contention that refusal to set a hearing is the crux of the issue rather than any tacit rhetoric that might be interpreted as disapproval of nomination. Factually, historic actions of the Senate describe the conditions and results of approval or disapproval and those conditions have not yet been met.
    I would also argue that the rules of Senate proceedings are not immune from Judicial Review. Why would it be up to the Executive Branch to determine what a reasonable period of time is when that is one of the principle questions to be answered by the court and in fact may be the point upon which the entire theory turns. As the proposal states, the temporal debate can start with the average length of time it has taken the Senate to act on any judicial appointment. In my mind, that is precedent. I continue to hang my hat on one more qualified to advance the theory than I. Aut viam inveniam aut faciam.

  13. Mark Winegar 2016-03-31 21:48

    This is good news for every South Dakotan who works for a living.

  14. Don Coyote 2016-04-01 21:46

    @leslie: Then you assumed wrong. Proud University of Chicago alumnus here. Go Maroons! Favorite bar was Woodlawn Tap more affectionately know as Jimmy’s. Come at the right time of day/night and you might have seen Milton Friedman. Dylan Thomas even knocked back a few there. Wouldn’t be surprised Obama tipped a couple there too since his house is only about 6 blocks away and on the way home from the law school where he lectured. ;-)

  15. leslie 2016-04-02 00:07

    Meetchu on halstead some saturday night before a bears game? that would be good. great town. sorry for the ass u me mistake sir! I remember downtown shopping right before xmas. gorgeous.

  16. leslie 2016-04-02 00:34

    the yale article looks good. 2013. will try to read it. thx BCB and JW

  17. leslie 2016-04-05 22:17

    Koch bros aside:

    after Scalia’s death, George Mason University announced it would rename its law school to honor the fallen legal hero of the right and collected $30 million in donations—including $10 million from the Charles Koch Foundation—as part of the tribute. Rebranded as the Antonin Scalia School of Law at George Mason University.

    Twitter(a VERY powerful tool) seemed most enthralled with these two options: #ASSol and #ASSLaw. Or #ASSoL at George Mason. fits Koch brothers, i’d say:) $10 mill doesn’t go as far as it used to!

    slate today

  18. bearcreekbat 2016-04-10 17:07

    There is a backup to John’s implied consent theory on the Senate “advice and consent” analysis. While that theory is well supported by the Yale Law Juornal article, and alternative theory has been set forth by former SCOTUS clerk to Justice Marshall, Gregory L. Diskant (a senior partner at the law firm of Patterson Belknap Webb & Tyler and a member of the national governing board of Common Cause). He argues:

    “It is altogether proper to view a decision by the Senate not to act as a waiver of its right to provide advice and consent. A waiver is an intentional relinquishment or abandonment of a known right or privilege. As the Supreme Court has said, “ ‘No procedural principle is more familiar to this Court than that a constitutional right,’ or a right of any other sort, ‘may be forfeited in criminal as well as civil cases by the failure to make timely assertion of the right before a tribunal having jurisdiction to determine it.’ ”

    It is in full accord with traditional notions of waiver to say that the Senate, having been given a reasonable opportunity to provide advice and consent to the president with respect to the nomination of Garland, and having failed to do so, can fairly be deemed to have waived its right.”

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