The U.S. Supreme Court building in Washington, D.C. (Photo: Diego M. Radzinschi/ALM)

A divided U.S. Supreme Court on Monday declined to reconsider two decades-old decisions upholding the constitutionality of mandatory membership in state bar associations.

In the case Jarchow v. State Bar of Wisconsin, Adam Jarchow and Michael Dean argued that compelled membership and fees in their state bar violated their First Amendment speech and association rights.

The two lawyers asked the justices to overrule Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990), contending that the justices' modern free speech decisions and the court's recent ruling in Janus v. AFSCME, striking down union "fair share" fees, had "knocked the legs out from under" the Lathrop and Keller decisions.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, said the court should have taken up the bar fee case. Thomas wrote in his dissent that the court's overruling of Abood v. Detroit School Board in the 2018 union fees decision, Janus v. AFSCME, "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."

In the petition for review, Baker & Hostetler partner David Rivkin Jr. wrote, "Whereas the collective-bargaining speech at issue in Janus was primarily addressed to things like wages and benefits that implicate the public fisc, the speech Wisconsin attorneys are compelled to subsidize is directly and inherently political, addressing as it does the substance and administration of the law. And whereas the public employee in Janus was not required to join the union, Wisconsin law requires all lawyers to formally associate with the State Bar as full-fledged members."

Foley & Lardner partner Roberta Howell, counsel to the state bar, urged the court to deny the petition. She noted that the justices—in their 2014 decision in Harris v. Quinn—expressly stated that Lathrop and Keller retained their validity, despite questioning the Abood precedent that had upheld union fees. A 5-4 majority in Janus overruled Abood in 2018.

Justice Samuel Alito Jr. led the majority in Harris. "The portion of the rule that we upheld served the 'state's interest in regulating the legal profession and improving the quality of legal services," he wrote. Alito added: "states also have a strong interest in allocating to the members of the bar, rather than the general public, the expense of ensuring that attorneys adhere to ethical practices. Thus, our decision in this case is wholly consistent with our holding in Keller."

In opposing the Jarchow petition, Howell wrote, "The principles of stare decisis counsel against overturning Lathrop and Keller, particularly because both cases have established a workable framework for the operation of integrated bars in a majority of states." She added that Jarchow and Dean rushed their case through the lower courts in order to get to the Supreme Court quickly and because of that haste, they "have developed no meaningful record and have made no argument that the State Bar and its procedures are unconstitutional if Lathrop and Keller remain good law."

The U.S. Court of Appeals for the Seventh Circuit summarily affirmed a district court's dismissal of the Jarchow suit based on Keller.

Jarchow drew amicus support from several organizations, including state public policy research centers in a brief by Consovoy McCarthy partner Jeffrey Harris.

Under Wisconsin Supreme Court rules, all Wisconsin lawyers must be members of the state bar and pay dues in order to practice law in the states. The court created the organization for a number of purposes, including to "conduct a program of continuing legal education" and to "promote the innovation, development and improvement of means to deliver legal services to the people of Wisconsin."

In the Lathrop decision, the Supreme Court held that reasonable fees and mandatory membership in the Wisconsin bar did not violate the Fourteenth Amendment. The Keller decision upheld mandatory bar dues if objecting members are not compelled to fund activities not germane to regulating the legal profession or improving the quality of legal services.

The Jarchow case was the second challenge to integrated state bars to come before the court in less than a year. In December, the justices granted, vacated and remanded to the Eighth Circuit the case Fleck v. Wetch, a challenge to the North Dakota bar, for further review in light of Janus.