A group of California teachers is asking the Supreme Court to consider rehearing a case over whether public sector employees can be forced to pay union fees.
The teachers say the justices should revisit the case when the vacancy left by the late Justice Antonin Scalia is filled, bringing the court once again to nine members.
In their petition, the teachers acknowledged that rehearings for cases are rare but said the court has granted them in the past under similar circumstances.
“This Court’s established practice of rehearing cases under the circumstances present here, so that they may be decided by a full complement of nine justices, makes sense,” they said. “It ensures that cases important enough for this Court to grant certiorari do not remain unresolved simply because an unexpected vacancy prevents a majority decision.”
The justices deadlocked in Friedrichs v. California Teachers Association last month, delivering a victory to unions in a case that threatened to roll back state laws requiring public sector workers to pay their “fair share” of union fees when a worker opts out of union representation.
The 4-4 divide has been highlighted as another sign the court is struggling with just eight members as the justices await the outcome of the confirmation battle for President Obama’s nominee, Merrick Garland.
Republicans have vowed that Garland will not receive a hearing or a vote.
While some Senate Republicans have met with Garland, they have done so only as a courtesy while reiterating that the seat should remain vacant until a new president takes office.