By a 4-4 decision, the U.S. Supreme Court has affirmed a lower court ruling that public sector unions could require employees to pay an agency fee to a union as a condition of employment. Friedrichs v. California Teachers Association, No. 14-915 (Mar. 29, 2016).

The plaintiffs had argued that their First Amendment rights were violated when the government, through a collective bargaining agreement, required the employees to pay an agency fee (also known by the euphemism “fair share payment”) a union whose views they did not necessarily wholly share. Agency fees are similar in amount to the dues paid by union members. Read our previous post for more detail.

In a single sentence — “The judgment is affirmed by an equally divided court” — the justices demonstrated that the passing in February of Justice Antonin Scalia will have a distinct effect on cases before it. (Approximately a third of the cases before the Supreme Court in recent years have been decided by a 5-4 vote.) Many court observers believed Justice Scalia would have voted with the plaintiffs and found a government requirement that public sector employees pay a mandatory agency fee violates the First Amendment rights of those workers. During oral argument, Justice Scalia and others justices expressed the view that collective bargaining was political speech and the requirement that public sector employees pay mandatory agency fees was “compelled speech.”

Had the Court reversed the appeals court decision, public sector unions stood to lose millions of dollars in fees as employees exercised their new right to decline to pay an agency fee. For example, after Wisconsin in 2013 prohibited unions who represented state employees from charging mandatory agency fees, AFSMCE Council 24’s revenue in the state dropped from $5 million in 2010, before the law changed, to $1.5 million.

The High Court’s decision does not finally resolve the issue. The plaintiffs could ask for a rehearing, although success is unlikely because an affirmative vote of five justices is required and a rehearing is rarely granted. In addition, several cases that raise the same issue are working their way through the lower courts. One of them may reach the Supreme Court for a definitive ruling after the Court is restored to a full complement of nine justices.