Of the many cases affected by the untimely passing of Justice Antonin Scalia, no case had more far-reaching First Amendment potential than Friedrichs v. California Teachers Association. One of the most anticipated cases during the October 2015 term, the case required the Court to determine whether it would accede to public school teachers’ request and overrule Abood v. Detroit Board of Education. Abood arose as a sort of First Amendment aberration in 1977, holding that public employees could be forced to pay unions compulsory agency fees as a condition of employment.

Public-sector unions have ridden this aberrant gravy train for four decades, seizing hundreds of millions of dollars from workers who aren’t union members and don’t want to be. The Court reached its result by employing faulty and dismissive reasoning. While the Court concluded that public employees cannot be forced to fund a union’s overtly political electioneering or lobbying expenses, it brushed off the basic observation that any form of bargaining with the government over public employees’ wages and employment conditions is inherently and always political speech, and that forcing employees to subsidize that speech runs counter to our most cherished speech and associational norms. Instead, Abood concluded that the government could infringe on public workers’ speech rights to advance its own compelling interests in labor peace and avoiding the alleged free rider problem.

Paying such short shrift to serious constitutional concerns in Abood has created a body of incoherent case law. Over the years, therefore, the Court has repeatedly chipped away at Abood’s reasoning.  

Two recent examples are Knox v. SEIU 1500 and Harris v. Quinn. In Knox, the Court remarked that a

union's collection of fees from nonmembers is authorized by an act of legislative grace—one that we have termed unusual and extraordinary . . . By authorizing a union to collect fees from nonmembers . . . our prior decisions approach, if they do not cross, the limit of what the First Amendment can tolerate. 

In Harris, the Court declared that publicly-funded care providers were not covered by Abood’s extraordinary holding and could not constitutionally be forced to pay agency fees. It is curious that the Harris majority declined to overrule Abood when the question was squarely before it. But make no mistake: the Harris majority picked Abood apart, leaving only a shell of shaky precedent tottering near obscurity. In examining and rejecting Abood’s basic reasoning, the Court bluntly remarked:

The Abood Court's analysis is questionable on several grounds. Some of these were noted or apparent at or before the time of the decision, but several have become more evident and troubling in the years since then. 134 S. Ct. at 2632.

Thus, at the start of the October 2015 term, the Court appeared set to overrule Abood. And Friedrichs was the vehicle.

But alas, in February 2016, Justice Scalia tragically passed away. Considering he had joined the majorities in Knox and Harris, Justice Scalia appeared to be a sure vote to overrule Abood. Because of Justice Scalia’s passing, a prospective 5-4 opinion in Friedrichs’ favor turned into a 4-4 tie. With one sentence, the Court affirmed the Ninth Circuit’s decision upholding Abood.

After Freidrichs, it didn’t look like the Court would overrule Abood anytime soon. Even if Republicans successfully blocked Judge Merrick Garland from being confirmed, all polling and signs suggested that Hillary Clinton would be the 45th President and appoint a jurist that would almost certainly side with the dissenters in Knox and Harris. 

But on November 8, 2016, Donald Trump—to the surprise and shock of many—was elected president. And yesterday, President Trump nominated Neil Gorsuch—who has been described as a natural successor to the late Justice Scalia—to the Court. If Gorsuch is confirmed by the Senate, Abood’s fate will immediately be thrown back into uncertainty.  Gorsuch’s opinion in the Hobby Lobby case seems to demonstrate his conviction that individuals should not be forced to subsidize activity with which they disagree.

Fortunately for worker-choice advocates, Friedrichs-like cases have steadily been working their way through the federal judiciary, and may soon reach the Court. One of those cases is Janus v. AFSCME. In that case, a group of Illinois public employees are challenging the state’s requirement that all public employees pay an agency fee to their union. It is a direct challenge to Abood litigated by the National Right to Work Legal Defense Foundation, the same group of exceptional attorneys who litigated both Knox and Harris. We say that is a good sign: go with the hot hand.

Janus is currently being briefed in the Seventh Circuit. The workers conceded in their opening brief that Abood controls, and that they intend to petition the Supreme Court to reconsider Abood. Under the current schedule, it is possible that Janus could be decided by the Seventh Circuit in time for it to be heard during the Court’s October 2017 term.

Justice Scalia’s passing was especially painful for conservatives and libertarians who have fought to restore workers’ First Amendment rights. The Court was months away from overruling Abood. But with the current judicial outlook, fears that Abood will stubbornly persist are fading. If Judge Gorsuch is confirmed by the Senate, it would appear—once again—that Abood is operating on life support.

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The authors are Litigation Counsel for Freedom Foundation, a non-profit working on labor reform issues in Washington, Oregon, and California.