Colleagues,
As you know, Justice Antonin Scalia died this past Saturday, leaving the US Supreme Court with 8 justices. His passing has stirred many responses, both political and legal. Though each of us, I am sure, has their own personal perspective on Scalia and his career on the Court, there is no doubt that his passing will have an impact on us in UUP.
What follows is a succinct and comprehensive message from the President Randi Weingarten of our national affiliate — AFT — and I urge you to read it carefully. For all of us in UUP, my message is very simple: Full speed ahead with what we started with at the Winter Delegate Assembly. First, the organizing work that is accelerating will continue. We have no certainty as to how the Court will act on Friedrichs. And the work of organizing is an absolute necessity regardless of that decision. It will make us stronger in negotiations and with our advocacy work in the legislature. Second, our financial belt tightening will also continue, with a conservative budget developed for delegates to act on at the Spring Delegate Assembly. We must be careful in our planning, as there are many other cases in the pipeline that could bring us serious harm. We also have no idea what the Republican controlled Senate will do with the President’s nominee to replace Scalia, or what could occur should the Republicans take control of the White House while maintaining control of Congress — though we should have a pretty good idea!
Therefore, I urge you to continue to do all you can as part of our organizing work and to get involved in the political campaigning both at the state and national level. We need to elect friends of labor who can deliver the protections we need and the progress we are advocating for in Albany and in Washington, DC.
Here is Randi Weingarten’s message:
Justice Scalia’s death yesterday comes as a complete surprise. While we have disagreed with many of his opinions, we deeply respect his service and contributions to our nation’s judiciary. His death raises many questions as to the disposition of cases this term, Friedrichs chief among them. While we will have a lengthy discussion on the implications of this change in the Supreme Court at the AFT executive council this coming week, here is our first take: We remain fully committed to our membership mobilization efforts. That is paramount regardless of what happens in Friedrichs. The impact of Justice Scalia’s death on pending Supreme Court cases where rulings have not been issued is not yet known. The possible outcomes are outlined below:
* Such cases may be decided by the remaining eight justices.
* If the remaining justices are split evenly, there are three choices available to them:
1) They could issue a 4-4 decision, which would have the impact of upholding the ruling of the Court of Appeals; in Friedrichs, that means leaving Abood (and fair-share dues) intact.
2) They could decide to have the case reargued in the next term of the Supreme Court once a new justice has been confirmed. (Even though Sen. McConnell has already said he would not confirm a new justice, it is conceivable that a justice could be confirmed before the end of the term. However, in order for that justice to vote on the decision, oral argument would have to be rescheduled for the benefit of that justice, which seems quite unlikely.)
3) The remaining justices might decide to resolve the case on procedural non-substantive grounds, meaning, for example, addressing the failure to establish a record in the courts below, thus keeping intact the Abood precedent.
Additionally, we have been asked if an opinion or vote can be rendered posthumously. Every scholar we have consulted says no. (For example, see the SCOTUS blog at http://www.scotusblog.com/2016/02/what-happens-to-this-terms-close-cases/.)We may not know the impact on Friedrichs until later in this term, perhaps as late as June. While we wait, remember that no single court case will determine the fate of the labor movement or impede the collective will of our members and our movement to improve the lives of our families and our communities. What we do know is that this development underlines the importance of the upcoming election-and the power of the president to nominate members to vacancies on the Supreme Court. The bottom line is: Please stay the course on our election efforts and our membership efforts and our preparation for a post-Friedrichs world. Thanks everyone for your solidarity and hard hard work.
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In closing, please don’t hesitate to call or write if you have any questions. We are in the midst of momentous days in the history of our union and our nation. As I always say, our destiny is in our hands; we simply need to seize it.
In solidarity,
Fred