Supreme Court Poised To Gut Legal Profession In At Least 30 States Because 'Freedom'

If there's one phrase that defines living under the current Court it's "this is why we can't have nice things."

When Justice Alito finally got his long-delayed wish of overturning four decades worth of precedent to end the scourge of affording public school teachers with basic dignity, there was a lot of gnashing of teeth, but most folks figured the war on labor had finally ended. Teachers and civil servants would watch their collective bargaining power evaporate as their unions entered a death spiral of free-ridership. Police and prison guards — the “Republican” unions that Justice Alito likes — wouldn’t feel the pinch as their members understand the value of paying dues guarantees that they’ll be defended tooth and nail by their union the next time they “accidentally” kill someone or get caught viciously beating another cop because he’s black. There could be no further impediments to the second glorious reign of Lochner.

So it was a great relief to Alito and his cronies when they learned this week that there was one more group of workers they could kick in the face with the glee of a mustachioed robber baron: lawyers.

In at least 30 states, lawyers are required to join the state bar association as a licensing requirement. It makes a lot of sense really. A collective of all the state’s attorneys probably should be the body that advocates on behalf of the profession. It allows lawyers to be regulated by the will of the membership rather than an independent government regulator lobbied by voluntary associations that may or may not have the best interests of the profession as a whole at heart.

But if there’s one phrase that defines living under the current Court it’s “this is why we can’t have nice things.”

Lawyers in states with mandatory bar association membership took the Janus opinion as an invitation to strip the organization of its lifeblood, arguing that attorneys who don’t agree with the majority judgment are being grievously compelled to speak against their will. As we wrote back in September when these challenges got rolling, “Lawyers are now using Janus to strike down mandatory bar fees. Let’s just watch everything burn.”

And on Monday, the Court struck the match. Per the Los Angeles Times:

In Janus vs. AFSCME, the court said that requirement violated the free-speech rights of employees who did not support the union.

That case proved helpful to lawyers challenging mandatory bar association fees based on the same principle. In a brief order on Monday, the court overturned a ruling last year by the U.S. 8th Circuit Court of Appeals that had upheld mandatory bar dues in North Dakota and sent the case back “for further consideration in light of Janus.”

Although the decision is a not a final ruling, it suggests the court’s majority now doubts the constitutionality of requiring lawyers to support a private bar association.

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Under the boneheaded interpretation of “freedom of speech” that holds sway these days, the money an attorney pays the state bar in licensing dues represents his or her “speech” and therefore if they don’t like the stances agreed upon by the majority of the state bar, it’s compelled speech. This cockamamie theory wouldn’t be on the table if the Court hadn’t gone all in on redefining speech as cash money, but here we are. Reasonable people would say that the dissenting lawyer is paying to belong to a professional regulatory body and part of that membership is the opportunity to have his or her point of view heard by fellow attorneys. If it fails in the marketplace of ideas, so be it, but the lawyer has paid for their opportunity to influence the final outcome.

But reasonable people aren’t who we’re dealing with. Where the First Amendment was once about the rights of the unpopular to speak their minds, it’s now about the rights of the sore loser to make sure that if they can’t get their way, then no one can. This is not a neutral application. This is designed with the full intention of stifling the will of the majority rather than opening space for the minority opinion.

And Justice Alito and gang are going to ride this trolley to the end of the line no matter the mayhem. More than half the states in this country will suddenly have no credible regulatory body overseeing the practice of law. What will they do then? Taxpayer dollars will get squandered as states furiously set up government regimes to oversee the profession that they’ve never had to deal with before.

All because some loser doesn’t want to accept that he or she is such a bad advocate that they couldn’t even convince their peers.


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HeadshotJoe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter if you’re interested in law, politics, and a healthy dose of college sports news.