Monday, June 1, 2020

Should the Supreme Court Reconsider Keller v. State Board of California?

By Jonathan H. Adler - June 01, 2020 at 09:54AM

In Keller v. State Bar of California (1990), the Supreme Court unanimously upheld the constitutionality of requiring practicing attorneys to join an "integrated" state bar association—a bar association that both regulates the practice of law within the state and lobbies on behalf of the interests of the legal profession (as determined by the bar). The decision expressly rested on Abood v. Detroit Board of Education, which allowed for mandatory public sector union dues. Abood is no longer good law, however, having been overturned in Janus v. AFSCME. So does this mean the Supreme Court should reconsider Keller?

This morning the Supreme Court denied certiorari in Jarchow v. State Board of Wisconsin, which presented that question. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari. Justice Thomas wrote:

A majority of States, including Wisconsin, have "integrated bars." Unlike voluntary bar associations, integrated or mandatory bars require attorneys to join a state bar and
pay compulsory dues as a condition of practicing law in the State. Petitioners are practicing lawyers in Wisconsin who allege that their Wisconsin State Bar dues are used to fund "advocacy and other speech on matters of intense public interest and concern." App. to Pet. for Cert. 10. Among other things, petitioners allege that the Wisconsin State Bar has taken a position on legislation prohibiting health plans
from funding abortions, legislation on felon voting rights, and items in the state budget. Petitioners' First Amendment challenge to Wisconsin's integrated bar arrangement is foreclosed by Keller v. State Bar of Cal., 496 U. S. 1 (1990), which this petition asks us to revisit. I would grant certiorari to address this important question.

In Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977), the Court held that a law requiring public employees to pay mandatory union dues did not violate the freedom of speech guaranteed by the First Amendment, id., at 235–236. In Keller, the Court extended Abood to integrated bar dues based on an "analogy between the relationship of the State Bar and its members, on the one hand, and the relationship of employee unions and their members, on the other." 496 U. S., at 12. Applying Abood, the Court held that "[t]he State Bar may . . . constitutionally fund activities germane to [its] goals" of "regulating the legal profession and improving the quality of legal services" using "the mandatory dues of all members." 496 U. S., at 13–14.

Two Terms ago, we overruled Abood in Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018). We observed that "Abood was poorly reasoned," that "[i]t has led to practical problems and abuse," and that "[i]t is inconsistent with other First Amendment cases and has been undermined by more recent decisions." Id., at ___ (slip op., at 1). After considering arguments for retaining Abood that sounded in both precedent and original meaning, we held that "States and public-sector unions may no longer extract agency fees from nonconsenting employees." 585 U. S., at ___ (slip op., at 48).

Our decision to overrule Abood casts significant doubt on Keller. The opinion in Keller rests almost entirely on the framework of Abood. Now that Abood is no longer good law, there is effectively nothing left supporting our decision in Keller. If the rule in Keller is to survive, it would have to be on the basis of new reasoning that is consistent with Janus.*

Respondents argue that our review of this case would be hindered because it was dismissed on the pleadings. But any 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, benefit to our review of the purely legal question whether Keller should be overruled.

Short of a constitutional amendment, only we can rectify our own erroneous constitutional decisions. 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. Accordingly, I respectfully dissent from the denial of certiorari.

[*] Respondents resist this conclusion by citing Harris v. Quinn, 573 U. S. 616 (2014), which predates Janus. But all we said in Harris was that "a refusal to extend Abood" would not "call into question" Keller. Harris, 573 U. S., at 655. Now that we have overruled Abood, Keller has unavoidably been called into question.

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