June 1, 2020
By Jacob Huebert
Today, the Supreme Court declined to hear a First Amendment challenge to Wisconsin’s law that requires attorneys in the state to join and pay dues to the State Bar of Wisconsin.
That’s disappointing. Mandatory bar membership violates attorneys’ freedom of association, and mandatory dues—which bar associations all too often use for political advocacy—violate attorneys’ freedom of speech. With this case, the Court could have ended those First Amendment violations, not only in Wisconsin, but also in the 29 other states that force lawyers to join and pay a bar association just to be allowed to earn a living in their chosen profession.
But today’s bad news comes with some cause for hope. Two justices, Clarence Thomas and Neil Gorsuch, issued an opinion dissenting from the Court’s order declining to hear the case, and their opinion shows clearly and concisely why it’s time for the Court to take up this issue.
State governments and federal courts have long assumed that mandatory bar dues are constitutional based on a 1990 Supreme Court decision, Keller v. State Bar of California. But as Thomas and Gorsuch point out, that decision relied “almost entirely” on a 1977 case that upheld laws that required government employees to pay union fees, Abood v. Detroit Board of Education.
In 2018, the Court overruled Abood—and ended mandatory public-sector union fees nationwide–in Janus v. AFSCME. “Now that Abood is no longer good law,” Thomas wrote on the two justices’ behalf, “there is effectively nothing left supporting [the Court’s] decision in Keller.” Therefore, Thomas explained, “[i]f the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus.”
Thomas didn’t say it, but the next step in the analysis is obvious: Mandatory bars can’t survive because they aren’t consistent with Janus. Just as the government couldn’t justify forcing public-sector employees to pay for unions’ political speech just to do their jobs, it also can’t justify forcing lawyers to pay for bar associations’ speech just to do their jobs. There’s no doubt that states can regulate the legal profession without violating attorneys’ First Amendment rights with a mandatory bar association—some 20 states already do it—and, under Janus, that means they must do it.
Fortunately, the Court will have more opportunities to take this issue up as lawyers in other states challenge their mandatory bars in court—many of them represented by the Goldwater Institute. For example, the Goldwater Institute recently argued on behalf of two Oregon attorneys challenging their state’s bar association in the Ninth Circuit U.S. Court of Appeals. That court had challenging questions for the Oregon State Bar’s attorneys, who could offer little justification for forcing lawyers to be members, except the supposed force of pre-Janus precedent.
The Goldwater Institute also is representing a Louisiana attorney in a case at the Fifth Circuit Court of Appeals and an Oklahoma attorney in a case at the Tenth Circuit Court of Appeals. Other challenges are underway in Texas, Michigan, and Wisconsin (again), and no doubt more are on the way.
The Court’s refusal to take the Wisconsin case, Jarchow v. State Bar of Wisconsin, today doesn’t mean it won’t hear one of the others later. While Thomas and Gorsuch believed the Court should resolve the issue now, other justices might have thought it would be better to wait. And Jarchow had an unusual history: The plaintiff’s lawyers didn’t develop a trial court record, and they asked the U.S. Court of Appeals to immediately rule against them, without even issuing an opinion, so they could proceed directly to the Supreme Court. As plaintiffs across the country develop evidence and Courts of Appeals issue decisions, perhaps differing in their analyses or outcomes, the Supreme Court could become more inclined to reconsider mandatory bars’ constitutionality.
It should. Mandatory bars directly conflict with Supreme Court precedent, and they’ll keep violating many thousands of attorneys’ rights and distorting political discourse unless and until the Court steps in.
Jacob Huebert is a Senior Attorney at the Goldwater Institute.