The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Today the Fifth Circuit decided McDonald v. Longley. The panel declared unconstitutional the structure of the Texas Integrated Bar. That organization (of which I am a member) mandates the payment of dues for political and ideological activities. The panel also enjoined the Bar from collecting dues from the Plaintiffs during the pendency of this case.
The panel found that the landscape has changed greatly since Lathrop v. Donohue (1961) and Keller v. State Bar of California (1990):
Since Lathrop and Keller were decided, the Supreme Court's First Amendment caselaw has changed dramatically. Both cases drew from the then-existing jurisprudence on the First Amendment implications of mandatory union dues, but that jurisprudence has evolved. Keller, in particular, rested almost exclusively on Abood v. Detroit Board of Edu-cation, 431 U.S. 209 (1977), which the Court overruled in Janus, 138 S. Ct. at 2486. Those changes, and Janus in particular, cast doubt on Lathrop and Keller. See Jarchow, 140 S. Ct. at 1720 (Thomas, J., dissenting from denial of certiorari). Contra Janus, 138 S. Ct. at 2498 (Kagan, J., dissenting) (contending that Janus did not call Keller into question).
But "the Supreme Court abrogates its cases with a bang, not a whimper, and it has never revisited" either Lathrop or Keller. Tex. Democratic Party v. Abbott, 961 F.3d 389, 405 (5th Cir. 2020). So, despite their "increasingly wobbly, moth-eaten foundations," State Oil Co. v. Khan, 522 U.S. 3, 20 (1997) (cleaned up), Lathrop and Keller remain binding. Because they have "direct application in [this] case," we apply them, "leaving to [the Supreme] Court the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477, 484 (1989). With that said, Lathrop's and Keller's weakened foundations counsel against expanding their reach as we consider questions they left open.
Here is a summary of the First Amendment analysis:
In sum, the Bar is engaged in non-germane activities, so compelling the plaintiffs to join it violates their First Amendment rights. There are multiple other constitutional options: The Bar can cease engaging in non-germane activities; Texas can directly regulate the legal profession and create a voluntary bar association, like New York's; or Texas can adopt a hybrid system, like California's. But it may not continue mandating membership in the Bar as currently structured or engaging in its current activities.
And here is the remedy:
We additionally REVERSE the denial of plaintiffs' motion for a preliminary injunction and RENDER a preliminary injunction preventing the Bar from requiring the plaintiffs to join or pay dues pending completion of the remedies phase.
Yes, the remedy is limited to the Plaintiffs. I don't think I get a refund--yet, at least. I'll keep you posted.
What happens next? The Bar takes a risk by going to SCOTUS. After Janus, NIFLA, and AFP, this case is a 6-3 affirm. I think the Bar stops performing the "non-germane" activities.
Update: The Fifth Circuit also revived a challenge to Louisiana's integrated bar. The District Court had granted a motion to dismiss.