Justices will not review challenge to mandatory bar dues

This morning the Supreme Court issued orders from the justices’ private conference last Thursday. The justices did not add any new cases to their merits docket for the fall. They did not act on the group of cases challenging federal and state gun restrictions or the group of cases asking the justices to reconsider immunity for government officials (including police officers) accused of violating the constitutional rights of others.

The justices declined to review a challenge to the constitutionality of laws requiring lawyers who want to practice law in a state to join the state’s bar association and pay dues. The lawsuit was filed by two Wisconsin lawyers who argue that compelling them to do so violates the First Amendment.

Two years ago, in Janus v. American Federation of State, County, and Municipal Employees, the Supreme Court ruled that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the costs of contract negotiations. The decision in Janus overruled the Supreme Court’s earlier decision in Abood v. Detroit Board of Education. In the wake of the Janus decision, Adam Jarchow and Michael Dean went to federal court in Wisconsin. Jarchow and Dean are licensed attorneys in Wisconsin but they disagree with the Wisconsin bar association’s advocacy on issues like the death penalty, immigration law, the free exercise of religion and campaign finance, and they object to having to join the bar association and support it with their dues. They argued that Janus “knocked the legs out from under” the Supreme Court’s prior rulings upholding compulsory bar membership and dues. The lower courts turned them down, on the ground that only the Supreme Court can overturn its earlier cases; Jarchow and Dean then went to the Supreme Court last winter, asking the justices to take up their case.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from today’s denial of review, writing that he would “grant certiorari to address this important question.” The court’s “decision to overrule Abood,” Thomas argued, “casts significant doubt on” the court’s prior ruling involving bar dues, Keller v. State Bar of California. As a result, he concluded, “we should reexamine whether” Keller “is sound precedent.”

The justices’ next conference is scheduled for Thursday, June 4. We expect orders from that conference on Monday, June 8, at 9:30 a.m.

This post was originally published at Howe on the Court.