The blockbuster July 2 ruling that the State Bar of Texas violated the First Amendment rights of some of its members by using mandatory dues to support politically controversial efforts unrelated to the regulation of the legal profession has lawyers wondering whether and when the U.S. Supreme Court might take up the case.
The decision by the U.S. Court of Appeals for the Fifth Circuit in McDonald v. Longley was something of a mixed bag, finding that some activities by the Texas bar, such as diversity efforts, are germane to the purpose of the organization and can be part of mandatory membership dues. Other initiatives, such as lobbying for “substantive” legislation, are not relevant and therefore cannot be imposed on members.
As a result, some legal experts believe that state bar officials should simply accept the partial loss and not appeal to the Supreme Court because there’s a significant chance that the justices could issue a decision that is even worse for mandatory bar associations.
“What happens next? The Bar takes a risk by going to SCOTUS,” said Josh Blackman, a Supreme Court expert at South Texas College of Law Houston. “I think the Bar stops performing the ‘non-germane’ activities.”
“The question is, will the Texas Bar roll the dice,” Blackman told The Texas Lawbook in an interview Monday.
Blackman and others said the three-judge panel, which was comprised of all Republican-appointed conservative judges, “split the difference” between the two sides.
“In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights,” Judge Jerry Smith wrote for the Fifth Circuit panel.
As examples, the decision stated that “most, but not quite all, of the Bar’s activities aimed at aiding the needy are germane,” but added, “the Bar’s lobbying to amend the Texas Constitution’s definition of marriage and create civil unions is obviously non-germane.”
Judge Smith was joined by Judges Don Willett and Kyle Duncan. Smith was a Ronald Reagan appointee, and Willett and Duncan were appointed by Donald Trump.
The ruling, along with a similar one issued July 2 involving the Louisiana bar, comes at a time when the Supreme Court has mixed feelings about the First Amendment ramifications of mandatory bar organizations that take on issues and projects that members disagree with.
In June of 2020, the high court denied review of Jarchow v. State Bar of Wisconsin, a similar case. Only two of the justices, Clarence Thomas and Neil Gorsuch, dissented from the denial of certiorari, asserting that the court should “reexamine” relevant precedents. Four justices are needed to grant review of a case.
More recently, the Supreme Court put off Crowe v. State of Oregon, another dispute over a bar’s political speech. First filed in May 27, the case was not acted on until June 30, when the justices ordered the case to be examined on September 27, near the beginning of the fall term.
But the justices’ ambivalence is not the only reason that the Supreme Court might not take up the case. The Texas bar lost the Fifth Circuit case more or less, so it would be up to the bar to take the case to the Supreme Court. Since the Fifth Circuit decision was not as severe as it could have been, the Texas bar might leave well enough alone and not take the case any higher.
“I think one side or the other will appeal to the Supreme Court and my bet is that the Supreme Court agrees to hear it,” said Houston lawyer Randy Sorrells, who is a past president of the State Bar of Texas. “But the Fifth Circuit decision was not nearly as bad as it could have been. If this is the ultimate position of the courts, I could live with it.”
Jacob Huebert, senior attorney at the Goldwater Institute, which was involved in both the Texas and Louisiana cases, thinks the Supreme Court will become involved.
“The Fifth Circuit’s ruling in the Texas case is the first decision from a federal court striking down mandatory bar membership and dues,” Huebert said. “The legal fight over mandatory bar associations is not over—and it’s likely that the Supreme Court will have to resolve it.”