A high-profile Supreme Court case involving mandatory membership fees paid to public employee unions was expected to result in yet another controversial, narrow 5-4 decision by the nation’s highest court, but today, with only eight justices currently seated, an evenly divided SCOTUS issued a one-sentence non-decision that leaves things unchanged.

In the case of Friedrichs v. California Teachers Association, some public school teachers in the state contended that their First Amendment rights are being violated by being compelled to pay union fees, regardless of whether they are actively part of the union.

Under this so-called “agency shop” model, California state law requires that the non-union teachers pay fees to cover expenditures germane to collective bargaining. Opponents claim this is problematic because not every teacher may believe that a union’s bargaining agreements are ultimately to their benefit.

Another issue is the collection of union fees that go toward things other than collective bargaining. In California, the teachers can opt out of subsidizing these additional expenditures, but they must raise their objection in writing and renew it every year.

In their petition [PDF] filed in 2015 with SCOTUS, the opponents of the agency shop model alleged that the unions aren’t being transparent with teachers about their right to opt out of subsidizing these nonchargeable union expenses.

Nearly 40 years ago, in Abood v. Detroit Board of Education, the Supremes upheld the idea of union shops for public employees, so long as workers are not compelled to contribute to things that go beyond the scope of collective bargaining.

“We do not hold that a union cannot constitutionally spend funds for the expression of political views, on behalf of political candidates, or toward the advancement of other ideological causes not germane to its duties as collective-bargaining representative,” wrote Justice Potter Stewart for the majority. “Rather, the Constitution requires only that such expenditures be financed from charges, dues, or assessments paid by employees who do not object to advancing those ideas and who are not coerced into doing so against their will by the threat of loss of governmental employment.”

The scope of a ruling in Friedrichs would have gone far beyond the borders of California, with some 20 states have similar laws regarding agency shop arrangements.

And when the case came before the then-nine Justices in Jan. 2016, it seemed destined for a 5-4 decision in favor of overturning Abood, with Antonin Scalia being the deciding fifth justice.

During oral arguments, Scalia voiced concern that bargaining by a public employee union was inherently political, as it involves questions like “Should the government pay higher wages or lesser wages? Should it promote teachers on the basis of seniority or on the basis of [merit]?”

“All of those questions are necessarily political questions,” said Scalia, who passed away in February, leaving the court with a currently unfilled vacancy.

Without Scalia, the justices remained deadlocked, today issuing one-sentence per curiam decision [PDF] affirming the earlier ruling in the case by the Ninth Circuit.

Sensing that the court was heading for a 4-4 split, the Center for Individual Rights — which brought the case before the court on behalf of Friedrichs — announced shortly after Scalia’s death that it would seek a re-hearing of the case if a split occurred. The organization affirmed that intent following today’s news.

“With the death of Justice Scalia, this outcome was not unexpected,” said CIR president Terry Pell in a statement. “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.”

As ScotusBlog notes, a request to re-hear the case would have to be filed within 25 days from today and would require the green light from five Justices.

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