The State Bar of Texas filed a brief with the U.S. Supreme Court on Monday arguing the court should not take up a challenge to the mandatory bar.
Plaintiffs in McDonald v. Firth have petitioned the court to take the case after a panel of the U.S. Court of Appeals for the 5th Circuit upheld the constitutionality of most challenged State Bar of Texas activities and left intact the structure of Texas’ mandatory, integrated bar. In its brief filed Monday, the State Bar of Texas points to longstanding U.S. Supreme Court precedent that supports the mandatory bar structure, which is used in 31 states and the District of Columbia.
“Now, the petitioners—members of the mandatory State Bar of Texas—ask this Court to upend states’ reliance on this decades-old settled law by reimagining the guiding standard articulated in Keller [v. State Bar of California], or even overruling Keller and Lathrop [v. Donohue] entirely,” the State Bar brief states. “Over the past two years, this Court has rejected four similar requests for it to revisit its integrated-bar precedents. The Court should do the same here.”
Plaintiffs argue the court should grant certiorari because the 5th Circuit decision misconstrues Keller and Lathrop and conflicts with the Supreme Court’s more recent compelled-membership decisions. In the alternative, plaintiffs argue the court should overrule Keller and Lathrop.
In addition to filing a brief in opposition to certiorari, the State Bar of Texas has filed a conditional cross-petition arguing that if the court grants the plaintiffs’ petition, it should consider whether the State Bar of Texas is a government agency for purposes of the government speech doctrine and not subject to scrutiny under the First Amendment’s Free Speech Clause.
Go to texasbar.com/mcdonaldvfirth to see all filings in the case and find a summary of similar litigation against other mandatory bars.