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Justices Ducking The Bar

Rules requiring lawyers in a majority of states to join their state bar associations are hanging by a legal thread. But First Amendment advocates can only speculate about why the Supreme Court just sheathed its scissors.

A good argument can be made that the court’s current conservative majority is the most supportive of the Bill of Rights’ guarantees of freedom of speech and association since a then-liberal court decided several seminal defamation cases in the 1960s. Of course, the times and the court have changed dramatically since then. The American body politic has become much more polarized, as have most institutions, including bar associations and the court itself.

It was still surprising when the court last week ducked an opportunity to extend a significant principle it established just two years ago – a decision barring states from requiring public employees to join or pay dues to unions – to the legal profession. Only Justices Clarence Thomas and Neil Gorsuch were willing to hear the case that attorneys Adam Jarchow and Michael Dean brought against the State Bar of Wisconsin. It would have taken the votes of two more justices to put the case on the high court’s calendar for the October term.

No one would have expected support from the court’s four liberal justices, appointed by Democrats. Justices Elena Kagan, Sonia Sotomayor, Ruth Bader Ginsburg and Stephen Breyer all dissented from the court’s 2018 decision in Janus v. American Federation of State, County and Municipal Employees. That decision held that states cannot require public employees to join or financially support unions as a condition of employment. The five-member majority held that such forced membership, or the alternative “agency fees” that unions charge for representation and collective bargaining, amount to government-mandated speech and association in violation of dissenting workers’ First Amendment rights.

The Janus decision overruled a 1977 case, Abood v. Detroit Board of Education. Writing for the majority, Justice Samuel Alito forcefully declared that the precedent should be overturned because “fundamental free speech rights are at stake.” Abood was the key precedent supporting a 1990 decision in Keller v. State Bar of California, which upheld mandatory bar membership rules. With Abood consigned to the legal scrap heap, Keller seemed likely to fall as well, under the same free-speech arguments that the Janus plaintiffs raised.

Jarchow and Dean raised those very arguments in their challenge to Wisconsin’s bar rules. Joining and financially supporting their state bar would make them part of the organization’s initiatives and lobbying for public policies with which they disagree. In Wisconsin, as in many other states, joining the state bar is compulsory to practice law there. But Alito, author of the Janus opinion decided on the same grounds, apparently preferred not to take up the case.

Why not? Your guess is as good as mine, unless you know Alito personally. In that case, your guess is better. Mine is that Alito feels a certain loyalty to and sympathy toward bar associations, to which he has belonged; or that he does not feel such sympathy toward labor unions that have never represented him; or that he simply did not wish to offend his professional colleagues by voting to take a case that lacked a necessary fourth justice to grant review.

That fourth justice would have had to be either Brett Kavanaugh, the court’s newest member, or Chief Justice John Roberts. Either could have had unique reasons for preferring not to extend the Janus logic to the bar, or at least not right now.

Kavanaugh has a somewhat checkered history with the American Bar Association. That national group is separate from the state bar counterparts. Nobody is forced to join the ABA, but its membership and positions largely overlap the state-level groups. When Kavanaugh was nominated by then-President George W. Bush to the U.S. Court of Appeals for the District of Columbia Circuit in 2006, the ABA first gave him its highest, “well qualified” rating. The organization downgraded the rating to “qualified” after raising concerns about his temperament, The New York Times later reported. The ABA then gave Kavanaugh a “well qualified” rating after President Donald Trump nominated him to the Supreme Court in 2018. But ABA president Robert Carlson later called for a “thorough FBI investigation” of the sexual assault allegations against Kavanaugh (which Kavanaugh strenuously denied) before his Senate confirmation.

This makes me suspect that Kavanaugh does not relish taking on the bar associations, especially so soon after his confirmation, because he does not want to appear vindictive. Voting to take up this case under these circumstances might seem to justify the earlier criticism of his judicial temperament.

The chief justice, on the other hand, is the closest the court has right now to a centrist. He may not want to appear to attack the generally liberal-leaning legal establishment, especially in an election year and especially after the ABA has frequently given mediocre to failing grades to Trump’s nominees to lower levels of the federal bench. Senate Majority Leader Mitch McConnell has vowed to “leave no vacancy behind,” keeping the chamber in session even amid a pandemic to confirm Trump’s nominees to lifetime judicial positions. I also allow for the possibility that Roberts may be more sympathetic to bar associations than he is to labor unions, by dint of experience and outlook.

Barring a future reversal of the Janus reversal of Abood – a nonzero possibility in the current state of affairs – the legal thread that is the Keller ruling is bound to snap eventually. When it does, lawyers will be free to accept or decline membership in their state bar associations. Other cases are raising the same challenge to Keller that Jarchow and Dean raised. While the courts will generally follow a binding Supreme Court precedent, a venturesome panel on an appellate court may decide that by reversing Abood the justices effectively reversed Keller as well, even if they did not say so outright.

Sooner or later, one of these cases will come back before the Supreme Court. It may actually get a hearing next time. The likely result is that bar associations, like most other trade groups, will have to start winning members on their merits.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us” and Chapter 4, “The Family Business."

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