Media discussion of Justice Scalia’s death and its implications for the public unions case Friedrichs v. California Teachers Association overstates the impact and misses the larger issue.

Before Justice Scalia died, it was very likely the Court would hold that it is unconstitutional for state law to require, or even simply allow, “agency shop” agreements compelling non-union members to nevertheless contribute to the union’s collective bargaining and related expenses.  Now, the Court will probably affirm the Ninth Circuit’s decision upholding agency shop agreements, but without setting precedent.

That is obviously a better outcome for the Union, but how long will it last?  The New York Times says “a major threat to public unions has evaporated.”  Reuters writes more temperately that “a 4-4 split is a likely outcome, which would hand a win to the unions as that would leave the lower court’s ruling in their favor in place.”

As I wrote recently in assessing some key cases, not winning isn’t the same as losing.  Conservatives hoping the Court would strike agency shop provisions will no doubt have another opportunity to litigate the point in the near future.

The determinative question is who will appoint Justice Scalia’s replacement.  If President Obama makes the appointment, or either Bernie Sanders or Hillary Clinton does a year from now, then conservatives may well lose a Friedrichs redux.  Cruz or Rubio making the appointment would likely mean a conservative win.

This is why the GOP leadership and Presidential candidates have staked such strong positions against affirming any nominee this year.

It is also why Linda Hirshman’s column in the Washington Post on Sunday was so staggeringly wrong.  Hirshman wrote:

the GOP might soon reconsider if they see the implications of refusing to allow Obama to replace Scalia: A divided court leaves lower court rulings in place. And the lower courts are blue. Nine of the 13 U.S. Courts of Appeals have a majority of Democratic appointees. That means liberal rulings conservatives were hoping the Supreme Court would overturn remain law. So if Scalia had cast the deciding vote on a case before he died, but the court rehears it and divides 4 to 4, that would leave the lower court decision in place. . .

The situation is not always good for liberals. Abortion, in a case that has not yet been argued, was subjected to the most onerous restrictions by the normally conservative Fifth Circuit. If the court deadlocks, most of the abortion clinics in Texas would close. On immigration, the court had announced it would take up another case from the conservative Fifth Circuit over whether Obama has the power to stop breaking up families by ordering the government not to deport millions of undocumented immigrants; the lower court ruling blocked Obama’s executive order, so a tie wouldn’t change that.

That’s why the effect of an equally divided court has enormous potential to strengthen Obama’s hand in dealing with the Republican Senate in picking a replacement: Even if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority. . .

Right now, McConnell sounds like he doesn’t recognize the peril his party is in. If Obama signals that he’s willing to take advantage of the situation by taking actions like passing new environmental rules or moving for rehearing in the pending cases, he’ll put pressure on the Senate by getting what he wants without his court pick. Two-thirds of the people in the country live in blue-court America.

This is nonsensical for two key reasons.  First and foremost, affirming a Circuit Court decision on a 4-4 split is relatively small potatoes because it does not create precedent.  It is true that cases that would have been reversed with Scalia part of a 5-4 majority now will not be.  But it makes no sense for the GOP Senate to rubber-stamp a liberal nominee so that no-precedent 4-4 affirmation would instead be a 5-4, precedent-setting decision for the liberal position.

Hirshman is right that “[e]ven if the GOP blocks his nominee, the policy outcomes would be very similar to what they’d be if the court had a liberal majority.”  But she again gets the implications backwards.  If the policy outcomes are the same, there is no good reason for the GOP to give those outcomes the imprimatur and permanence of a Supreme Court majority decision.

Second, whatever new extra-legal executive orders President Obama might promulgate will not reach the Supreme Court in 2016.  Litigation takes a long time.  The House’s suit against the Department of Justice regarding Fast Furious was filed in August 2012 and is ongoing.  The immigration case Hirshman mentions was filed in 2014.  In other words, the current Supreme Court term – and by extension when Justice Scalia is replaced and by whom – is almost certainly irrelevant to whatever overreach President Obama may engage this year.

Hirshman is just completely wrong.  The 4-4 splits that affirm the Circuit Courts are unimportant when next year or the year after a similar case will come up and the new Justice on the new Court will set the precedent.  President Obama’s executive actions will not be undone by the Court this year – they will be undone by the next President or the next Court.

Even if the GOP could benefit conservative causes by quickly affirming a new liberal Justice (which it can’t and shouldn’t), that is short-term thinking in a context where long-term thinking is everything.  One Court term simply doesn’t matter that much when deciding who will sit on the Court for maybe the next thirty years.

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