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Plaintiffs and attorneys fear post-Scalia limbo

Attorneys with cases before the U.S. Supreme Court are hoping to avoid what is being called the post-Scalia deadlock.

The first one occurred with a 4-4 split decision in a banking and credit case Tuesday, with justices issuing a one-sentence opinion "by an equally divided court." Such ties effectively leave lower-court decisions on those cases in place, without establishing firm constitutional precedent.

SCOTUS watchers say several big cases remain in the court's hands, including ones about public-sector unions, abortion rights and affirmative action. Antonin Scalia's death and the resulting vacancy on the court leave several in judicial limbo.

Attorney Terry Pell has represented the plaintiffs in a much-watched case, Friedrichs v. California Teachers Association. It was brought by several California teachers who argued that forced collection of union agency fees that are used for collective bargaining — which they argue is by its very nature political — violates their First Amendment rights as they are forced to support union positions they don't agree with.

If the teachers are to prevail before the high court, it would mean a massive swipe at labor union power around the nation.

Pell, who leads the Center for Individual Rights in Washington, D.C., says it remains unclear where a ruling may be headed in Friedrichs after oral arguments were held Jan. 11. The Ninth Circuit ruled against the Friedrichs plaintiffs.

"We just don't know," Pell said of the future of the case, but he argues that, because it is so broad, if it earns an 4-4 split, it deserves a rehearing before the full nine-judge panel because it's a decision that would impact labor law in the 35 states where such collective-bargaining laws exist.

"We don't know what the preliminary vote was after oral argument and we don't know how far along the justices were in writing the opinion," Pell added. "Anything is possible at this point."

On Tuesday, the eight justices voted 4-4 in the case of Hawkins v. Community Bank of Raymore, viewed as a minor case, and brought by two wives who argued that they should not have to guarantee bank loans for their husbands, noting their liability on such loans.

The split decision in the case reflected the court's continuing division — four liberal-leaning justices voting one way; four conservative-leaning justices voting another — with no tie-breaker, so to speak.

Until a new justice is confirmed by Congress, getting a full nine-member review could take some time. If President Obama's nominee doesn't receive a hearing and vote before the 2016 presidential election in November, and the new president gets to pick a new justice, those cases seeking a likely rehearing could have to wait until late 2017 before ever getting a ruling by the full panel.

With stakes high, petitioners in the consolidated Obamacare case Zubik v. Burwell staged a prayer vigil outside the Supreme Court on Tuesday night. The case involves the Affordable Care Act’s Health and Human Services mandate, which requires employers to cover contraceptive and abortifacient drugs in their health insurance plans.

Thirty-seven petitioners, including the Little Sisters of the Poor, asked the Supreme Court in oral arguments Wednesday to exempt them, arguing that forcing them to provide such contraceptive drugs would violate their conscience. While religious employers already have an exemption to the law, non-profit religious organizations do not.

"This is all very speculative," Pell said of forecasting an outcome in Friedrichs and other cases in limbo. "Each case depends on the votes and the only type of case held over is where there is a tie vote. That is essentially a non-decision," allowing parties to petition for a rehearing.

"Normally, those are rarely granted," Pell added. "But in a situation like this where everybody, both parties and the court, have an interest in rendering a final decision, the court would hold those kind of petitions over for a vote when the new justice joins."

Another free speech case in the same position is Heffernan v. City of Paterson. Oral arguments also took place in January in a case that involves false impression about a political belief that led to a public employee's job termination.

Pell said he believes free speech is a bipartisan issue. "We're less concerned with the politics of the justices than their record in free speech cases. We've had good luck before judges who come from a Democrat and a Republican background, so we think there is bipartisan support for strong free speech protection."