Fight Over Bar Dues Rejected Despite Reversal on Unions

WASHINGTON (CN) — Two conservative members of the Supreme Court voiced disapproval Monday that they won’t be tackling a challenge to compulsory bar association dues that fund legislative positions.

Joined in his brief dissent by Justice Neil Gorsuch, Justice Clarence Thomas notes that voluntary bar associations — the alternative to integrated bar associations where dues are compelled — are in the minority.

The suit here was brought by Adam Jarchow and Michael Dean, two lawyers from Wisconsin where dues are compulsory.

They claimed in a petition for certiorari that integrated bar association compels speech in violation of their First and 14th Amendments, but the Supreme Court turned the case down Monday.

As explained in the Thomas dissent, his colleagues deem the issue foreclosed by the 1990 precedent Keller v. State Bar of California, which analogized the relationship of the State Bar and its members with the relationship of employee unions and their members. 

The Supreme Court backed mandatory union dues in the 1977 case Abood v. Detroit Bd. of Ed., but as Thomas noted Monday, it overturned that decision in 2018 with the ruling Janus v. State, County, and Municipal Employees.

Arguing that Janus has cast doubt on Keller, Thomas said the court should have granted Jarchow’s petition.

“Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions,” Thomas wrote. “We have admitted that Abood was erroneous, and Abood provided the foundation for Keller. In light of these developments, we should reexamine whether Keller is sound precedent.”

Thomas further argued that a failure to reexamine Keller will result in any challenge to the precedent being dismissed for failure to state a claim, before the record can even be opened for the justices to consider. 

“And in any event, a record would provide little, if any, benefit to our review of the purely legal question whether Keller should be overruled,” he added. 

Jarchow’s petition was supported by The Buckeye Institute, a public policy think tank based in Columbus, Ohio. In an amicus brief, it noted that the once fully integrated California Bar had split into two entities in 2018, with the voluntary association now “free to advocate for and against state legislation without being limited by Keller.”

Robert Alt, president and CEO of The Buckeye Institute, said in an interview Monday that he is optimistic that the issues at hand will be resolved eventually.

“At this point the legs have been knocked out from under Keller,” Alt said. “With Abood no longer good law, at this point the court needs to reassess whether or not it [Keller] is still the law.”

Another amicus brief in the case came from Pacific Legal Foundation, which has waged court battles for years to shield workers from cumpolsory payments that support political or expressive activities. 

Deborah La Fetra, the foundation’s senior counsel, called the Jarchow petition an important first step.

“But it was only a first step,” La Fetra said in a statement Monday. “Justices Thomas and Gorsuch are correct that when Janus overruled Abood, the foundation for Keller’s holding crumbled. With the denial of cert in JarchowKeller remains on the books, permitting constitutionally dubious integrated bars even as it lacks any legal justification.”

Jarchow’s defeat met with applause meanwhile from the other side.

“The State Bar of Wisconsin has in place a very aggressive review process that ensures members’ First Amendment rights are respected, including a policy that mandatory dues do not support any direct lobbying expenses regardless of subject matter,” the bar said in statement.

Per its custom, the Supreme Court did not issue any comment in turning down Jarchow’s petition Monday. The case was one of dozens of cases rejected in Monday’s order list, which featured no grants.

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