On June 1, the Supreme Court denied certiorari in Jarchow v. State Bar of Wisconsin. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari. As Justice Thomas explained, States with unified, “integrated or mandatory bars require attorneys to join a state bar and pay compulsory dues as a condition to practicing law in the State.” In other States, including a number of large ones like California and New York, licensing is still required, but membership in the state bar association is voluntary.
In 1977, the Court held that requiring public employees to pay union dues did not violate the employees’ First Amendment rights, although it went on to declare that the unions could not spend the dues of dissenting members for political purposes. Abood v. Detroit Bd. of Ed., 431 U.S. 209 (1977).The Court extended that rationale to bar associations and their members in Keller v. State Bar of California, 496 U.S. 1 (1990). The Court, then reversed Abood in Janus v. State, County, and Municipal Employees, 138 S. Ct. 2448 (2018).
In his Jarchow dissent, Justice Thomas pointed out that, by overruling Abood, the Court “cast significant doubt on Keller,” which “rests almost entirely on the framework of Abood.” Keller’s continued vitality is conditional on “new reasoning that is consistent with Janus.”
Justice Thomas also noted the difficulty of bringing a challenge like Jarchow’s, but said that it shouldn’t matter. “[A]ny challenge to our precedents will be dismissed for failure to state a claim, before discovery can take place. And, in any event, a record would provide little, if any, review of the purely legal question whether Keller should be overruled.”
Cases challenging unified bar requirements remain pending in federal courts against the bar associations in Louisiana, Michigan, Oregon, Oklahoma, and Texas.