Scalia and Friedrichs v CTA: The Stakes Have Changed


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Jarek Tuszynski / CC-BY-SA-3.0 & GDFL [CC BY-SA 3.0 (http://creativecommons.org/licenses/by-sa/3.0) or GFDL (http://www.gnu.org/copyleft/fdl.html)%5D, via Wikimedia Commons
A month ago, I examined the SCOTUS case of Friedrichs v. CTA, and forecast that Friedrichs had a 65% probability of winning. However, Justice Scalia’s sudden death has completed shifted the prospects for this case. I now believe that it is unlikely that Friedrichs can win. If I had to pin a probability on it, I’d move closer to 40% now.

Here’s more on SCOTUSblog on this:

“If Justice Scalia was part of a five-Justice majority in a case – for example, the Friedrichs case, in which the Court was expected to limit mandatory union contributions – the Court is now divided four to four.  In those cases, there is no majority for a decision and the lower court’s ruling stands, as if the Supreme Court had never heard the case.  Because it is very unlikely that a replacement will be appointed this Term, we should expect to see a number of such cases in which the lower court’s decision is “affirmed by an equally divided Court.”

The most immediate and important implications involve that union case.  A conservative ruling in that case is now unlikely to issue.” [Bold added]

UPDATE 2/14/16:

Well, looks like I’ll need to readjust that probability back up  based on some new information from SCOTUSblog. I’m readjusting up to 50% now. It looks like it’s possible that rather than allowing the lower court’s ruling to stand, which in the case of Friedrichs, would be for CTA, the court may wait to rule until a new justice is in place. If that is indeed the case, then it’s essentially a 50/50 probability, since whether Obama can get a justice nominated who is remotely liberal before the presidential election is up in the air.

The practice of holding reargument is important for three kinds of cases that are now pending.  First, in cases in which the more liberal side won in the court of appeals (for example, the Friedrichs union fees case), that side will be deprived of an affirmance by an equally divided Court.  It could well lose if Justice Scalia is succeeded by another conservative.”

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