Antonin_Scalia_Official_SCOTUS_PortraitU.S. Supreme Court Justice Antonin Scalia died at the age of 79 on Saturday, February 13, 2016.  Known for his sharp turns of phrase and his conservative viewpoint, Justice Scalia was frequently controversial.  His jurisprudence over 30 years on the Court shaped much of American life, and public sector employment was no exception.  This blog post summarizes his influence on the law as it exists, and examines how his death will affect current issues in public sector employment.

Justice Scalia was appointed to the Court by President Ronald Reagan in 1986.  He brought with him to the Court a legal philosophy known as “originalism,” which he has been quoted as defining to mean, “The Constitution that I interpret and apply is not living but dead, or as I prefer to call it, enduring.  It means today not what current society, much less the court, thinks it ought to mean, but what it meant when it was adopted.”  In interpreting law, Justice Scalia believed that the focus must be on the text of the law itself, and not on the intentions or policy values advanced by the persons who wrote it.  If the text itself did not conclusively settle the question, Justice Scalia supported looking to the documents reflecting common understanding of those words at that point in time the text was drafted.  At the time of his appointment, originalism was not a widely used method of constitutional interpretation.   In large part due to Justice Scalia’s influence, originalism is now firmly within the mainstream of legal discourse.

Justice Scalia authored, for example, the decision in St. Mary’s Honor Center v. Hicks (1993), which held that, in discrimination cases under Title VII of the Civil Rights Act of 1964, even where an employer’s stated reasons for an adverse employment action such as a termination are disbelieved by the trier of fact, a plaintiff must still prove that discrimination, and not some other reason, was the reason for the adverse employment action.  Consistent with his philosophy, Justice Scalia pointed to the language in the statute prohibiting discrimination, and wrote, “We have no authority to impose liability upon an employer for alleged discriminatory employment practices unless an appropriate factfinder determines, according to proper procedures, that the employer has unlawfully discriminated. . . [N]othing in law would permit us to substitute for the required finding that the employer’s action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer’s explanation of its action was not believable.”

However, it is too simplistic a reading of Justice Scalia’s legacy to say that he necessarily favored employers over employees.  He also authored the Court’s opinion in Equal Employment Opportunity Commission v. Abercrombie & Fitch Stores, Inc. (2015).  In that case, he wrote for an eight-to-one majority that a clothing retailer could not refuse to hire an applicant because the headscarf that she wore for religious reasons did not comply with the store’s “look” policy.

It could be a while before Justice Scalia’s seat on the Court is filled.  The Constitution provides that the President “shall nominate, and by and with the advice and the consent of the Senate, shall appoint . . . judges of the Supreme Court[.]”  President Barack Obama has stated his intention to nominate a candidate for the Court.  However, prominent Senate Republicans, including Senate Majority Leader Mitch McConnell, have indicated that they will block any nomination made by President Obama in the remaining eleven months of his second and final term.  With the Senate consisting of 54 Republicans, 44 Democrats, and two independents who caucus with Democrats, there is a distinct possibility that there will be no vote and no appointment of a new Justice until the next administration.  If a vote is held, President Obama’s nominee would need a minimum of six Republican votes to be confirmed.

Justice Scalia’s absence, and the timing of his replacement on the Court, will have major effects on cases currently pending before the Court affecting California public sector employers.  Of particular interest is Friederich v. California Teachers Association, which has been blogged about by LCW attorneys here and here.  After oral arguments, most legal observers anticipated that the Court would hold, by a vote of 5 to 4 with Scalia in the majority, that agency shop agreements in public sector employment violate the First Amendment, therefore prohibiting “fair share” requirements that employees who opted out of union membership pay fees.  A tie of 4 to 4 now seems likely.

Also pending before the Court is Heffernan v. City of Paterson, previously blogged about here, which will determine whether it violates the First Amendment to demote a public employee for his (incorrectly) perceived support of a political candidate.  Justice Scalia’s questioning at oral argument indicated that he was skeptical of the idea that, where the employee had not actually exercised his First Amendment right, there was a “Constitutional right not to be fired for the wrong reason.”  Observers thought it likely that the Court’s liberal and conservative blocs would vote as such in this case, with Justice Anthony Kennedy reprising his familiar role as the “swing” vote.  After Scalia’s passing, the likely results appear to be either a 5 to 3 decision in favor of the employee or a 4 to 4 tie.

What happens in the event of a tie?  That’s not entirely clear.  The most common assumption is that an equally divided Supreme Court results in affirmance of the Court of Appeal’s decision; this is the result, for example, when only eight Justices vote when one recuses himself or herself due to conflict.  This would keep the Ninth Circuit’s opinion in favor of public employee unions in Friedrich in place and binding in California.  The Heffernan decision would have no effect in California, as the Third Circuit’s decision would only be binding in New Jersey, Delaware, and parts of Pennsylvania.

However, there is precedent for reargument of cases that are pending when a vacancy arises on the Court due to death or retirement of a Justice.  If the Court follows that precedent, Friederichs, Heffernan, and other cases could remain in limbo indefinitely.

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Photo of Paul D. Knothe Paul D. Knothe

Paul Knothe practices in Liebert Cassidy Whitmore’s Los Angeles office where he advises and represents public agency and community college clients in employment law, with an emphasis on public safety issues.

Paul advises public safety agencies on complex and cutting-edge issues arising from…

Paul Knothe practices in Liebert Cassidy Whitmore’s Los Angeles office where he advises and represents public agency and community college clients in employment law, with an emphasis on public safety issues.

Paul advises public safety agencies on complex and cutting-edge issues arising from police reform legislation, including the transparency laws reducing traditional Pitchess protections and exposing peace officer personnel records to disclosure in response to Public Records Act requests.  He is a dynamic public speaker and provides training to law enforcement leaders on these reforms.  Paul is also well versed in the Public Safety Officers Procedural Bill of Rights Act (“POBRA”) and handles sensitive disciplinary issues and high-profile civil litigation and disciplinary appeal cases regarding claims of uses of force, off-duty misconduct, and discrimination, harassment, and retaliation.  Paul serves as a member of LCW’s Public Safety Practice Group Executive Committee.

A seasoned litigator, Paul defends clients in state and federal courts at both the trial and appellate levels. He has successfully defended agencies in collective action, multi-plaintiff, and single-plaintiff employment matters.  Paul litigates a full range of employment law matters including alleged discrimination, harassment, retaliation, POBRA, and wage and hour issues.   He manages all aspects of litigation, from case assessment and pre-trial motion practice, through all forms of discovery proceedings, and settlement, to trial.

Additionally, Paul conducts thorough workplace investigations, with a focus on high-profile incidents or allegations against senior management personnel.