Whether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment

QUESTION PRESENTED A “mandatory” or “integrated” bar is “an association of attorneys in which membership and dues are required as a condition of practicing law in a State.” Keller v. State Bar of California, 496 U.S. 1, 5 (1990). In Keller, this Court held that mandatory bar dues could be used to “constitutionally fund activities germane to” the goals of “regulating the legal profession and improving the quality of legal services.” Id. at 13-14. Keller built on this Court’s decision in Lathrop v. Donohue, 367 U.S. 820 (1961), which held that mandatory bar membership is “no different from” “union-shop agreements.” Id. at 842 (plurality opinion). Keller thus adopted wholesale the “germaneness” test of Abood v. Detroit Board of Education, 481 U.S. 209 (1977), which governed “whether, consistent with the First Amendment, agency-shop dues of nonunion public employees could be used to support political and ideological causes of the union.” Keller, 496 U.S. at 9. In Janus v. AFSCME, Council 31, however, this Court overruled Abood, holding that it “was poorly reasoned,” had “led to practical problems and abuse,” and was “inconsistent with other First Amendment cases.” 138 S. Ct. 2448, 2460 (2018). As Chief Judge Sykes recognized below, “[w]ith Abood overruled, the foundations of Keller have been shaken,” and “[t]he tension between Janus and Keller is hard to miss.” App. 11. The question presented is: Whether membership in a mandatory state bar is subject to heightened scrutiny under the First Amendment. iii LIST OF ALL PROCEEDINGS United States Court of Appeals for the Seventh Circuit, No. 20-2387, File v. Brost et al., judgment entered April 29, 2022. United States District Court for the Eastern District of Wisconsin, No. 19-cv-1063, File v. Kastner et al., judgment entered June 29, 2020.