Business watching post-Scalia court closely

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Supreme Court Justice Antonin Scalia’s death could have a major effect on a host of pending cases. 

Legal fights involving unions, employment law and immigration all await decisions from the high court, where only eight justices are likely to sit for the rest of the year given the expected battle over confirming Scalia’s successor.

A 4-4 legal tie would leave lower court decisions in place, though not every case with business implications is expected to be the type of ideological battle that could change significantly with Scalia's passing.

Here is a look as some of the most important cases.

Friedrichs v. California Teachers Association

One of the biggest pending cases that businesses are monitoring is this case centering on whether public employees who are not union members can be required to pay fees to the union.

“We are very concerned about that case,” said Karen Harned, executive director of the Small Business Legal Center of the National Federation of Independent Business (NFIB).

Small businesses can pay increased taxes because of rich union contracts, she added.

The NFIB saw the Friedrichs case, which was argued before the Supreme Court in January, as a “huge opportunity” to get a decision from the 1970s that upheld forced union dues overturned.

A victory may have been in the cards with Scalia on the court. But a 4-4 decision seems possible now. And that would leave the lower court ruling and the fees in place.

EPA’s climate rule

Days before Scalia’s death, the Supreme Court halted the Environmental Protection Agency’s regulation for power plants while challenges to the rule are reviewed by the U.S. Court of Appeals for the D.C. Circuit. Business groups were among those seeking the stay.

Because the issue is still before the appeals court, a case challenging the EPA’s rule will not come before the Supreme Court this term, and it may not even come before the high court in the term that begins in October, Harned said.

Scalia was part of the five-person majority staying the rule, and his successor could play a key role in determining the outcome of an eventual Supreme Court case on the topic.

“Whoever fills that seat is going to be a critical vote in this case,” Harned said.

Employment law

Several employment law cases before the Court could potentially be decided in 4-4 cases.

One such case is CRST Van Expedited v. Equal Employment Opportunity Commission, which is scheduled to be argued in March and relates to when the EEOC has to pay a company attorney's fees after its claim against the company is dismissed.

A tie vote would uphold the lower court decision finding that the company was not entitled to attorney's fees.

“I think the EEOC cases tend to be closer calls,” said Rae Vann, who represents the Equal Employment Advisory Council, which represents employers.

Another pending employment-law case that Vann suggested could be decided by a 4-4 vote is Green v. Brennan, which is about when the statute of limitations period for a specific type of claim against an employer begins. A split decision in that case, which was argued before the court in November, would uphold a lower court ruling that is favorable to businesses.

Also in November, the Supreme Court heard oral arguments in Tyson Food v. Bouaphakeo, which will help determine who qualifies to be part of a class-action lawsuit.  

Scalia wrote the majority decisions in previous 5-4 rulings on this question.

A split decision in the Tyson case would let an appeals court decision stand that upheld a multi-million dollar verdict against the company.


The legal challenge to President Obama’s executive actions on immigration could be hugely significant to industries that rely on immigrant labor.

The president’s actions cleared the way for legal status for millions of undocumented immigrants, and that major labor force is now up in the air.

Puerto Rico

In March, the court will hear Puerto Rico v. Franklin California Free Trust.

Bond investors have taken Puerto Rico to court over a law it passed giving itself the ability to restructure its debt.

A lower court overturned the territory’s law, and the island’s appeal sent it to the Supreme Court.

Scalia’s death muddies an already murky situation, as Justice Samuel Alito recused himself from the case, potentially due to some financial holdings that could be impacted.

That means that come March, only seven justices will hear the argument.