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Employment Blog

Thurmond Rule Will Impact High Court Employment and Labor Law Decisions in Aftermath of Justice Scalia’s Death

Authored by Ruder Ware Attorneys
Posted on February 17, 2016
Filed under Employment

In the aftermath of Supreme Court Justice Antonin Scalia’s recent death, many of my friends and colleagues have asked what Justice Scalia’s passing means to the future of significant employment and labor law cases.  First, Justice Scalia’s death means that it is likely that the Supreme Court will be deadlocked 4-4, along ideological lines, when taking up significant, sea change employment and labor law cases—like Friedrichs v. California Teachers Association, the highly-publicized, polarizing public-sector union “agency fee” case.  Prior to Scalia’s passing, many legal pundits predicted SCOTUS would decide Friedrichs in favor of the plaintiffs 5-4, eliminating agency fees for public-sector unions.   In sandlot baseball, a tie goes to the runner [there really is no such rule in baseball—the runner must beat the throw he or she is out]—in the Supreme Court context, a 4-4 tie means the lower court decision is allowed to stand, as if the Supreme Court never heard the case.   So…Justice Scalia’s passing probably means deadlock until a new Justice is appointed and confirmed.

How soon a new Justice may be appointed and confirmed is another interesting, highly political and ideological matter.  Shortly after Justice Scalia’s passing, both Democratic and Republican leadership issued statements about the morality of filling Scalia’s seat—Senate Minority Leader, Harry Reid (D-Nev.), wrote that failing to promptly replace Scalia would be “shameful,” while Senate Majority Leader, Mitch McConnell (R-KY), wrote that the American people should “have a voice in the selection of their next Supreme Court Justice,” and the vacancy should remain open until the next President is seated.   Interestingly—especially for a political junkie like me—the Republican majority is likely to publicly justify their all but certain delay in entertaining appointments on a decades-old parliamentary tradition, or informal rule, called the “Thurmond Rule,” named after late Senator Strom Thurmond, who originally invoked the concept in connection with one of LBJ’s SCOTUS appointees.   The crux of the Thurmond rule is that lifetime judicial appointments made toward the end of a lame-duck presidency are inappropriate.  Democrats and Republicans alike have promoted or disavowed the Thurmond Rule according to political expediency.  Historically, the Thurmond Rule has not been invoked to justify a year-long vacancy on the High Court—but the Senate Democrats are unlikely to garner enough votes needed to initiate the confirmation process.

We will keep you updated as things continue to unfold.