By now you’ve heard that Justice Antonin Scalia passed away on Saturday, February 13. His passing and the vacancy it creates will have a huge impact on American politics, but will have particular impact on the Friedrichs v CTA case pending before the Court. After oral argument on January 11, legal commentators universally predicted that the plaintiffs would prevail and that a majority of the Court would overturn its prior decision in Abood v Detroit Board of Education. However, with the passing of Justice Scalia there is no longer an apparent majority to overturn Abood. Instead, the Court appears likely to split 4-4 which means the underlying decision will stand. The only way for the plaintiffs to prevail would be if Justice Ginsberg, Breyer, Sotomayor, or Kagan provided the key fifth vote. That’s not realistic. So I can’t envision any scenario this term where the Supreme Court rules of favor of plaintiffs and overturns Abood.
Interestingly, I am told that the Supreme Court has the authority to order a rehearing sua sponte. This has occurred in the past after a case has been argued but where the Justices are unable to reach a decision. When rehearing is ordered, the case is set for a second oral argument the following term. I’m not an expert in Supreme Court practice, but I imagine that it takes a majority to order rehearing, something that does not presumably exist here.