not with us yet started sizes at least at this stage so let me start here is it ever possible for this court to recognize that the us supreme court has overruled one of  sessions by implication and in two thousand and fourteen this court answered that question yes in a case called baskin versus rogan which judge hamilton you may remember sitting on the panel there the court looked at a precedent of the u s supreme court and determined that it was in the opinions phrase no longer authoritative because the subsequent developments in the supreme court's now unfortunately it doesn't get as much it's certainly an important issue for the operation of the court system but with this precise issued there was the jar jar chair you pronounce that case where we said you know this is above our pay grade you know keller is there and it went before the supreme court on a writ of certiorari no one is of course not supposed to read anything substantive into a decision either to grant or deny the court has its own reasons we know that principle to two people dissent justice thomas and justice course such but this is pretty fresh off the page and i just i'm not sure why we should handle this case any differently just say you know you get you guys get to ask the supreme court to do whatever you want and go with our blessing but but that's where we are so i think two things here are about  other words we ruled consistently with keller right as we felt we had to do and if we had been flouting a supreme court overruling of over ruling we would have it there would have been a per curiam reversal supreme court doesn't take kindly to courts of appeals ignoring what it's said and we do our best to behave ourselves but it doesn't happen there was a petition for free to take cert from our non presidential orders it's free to take search from our published opinions it's a disposition of the case there was nothing wrong with it from the supreme court point of view and if we had if we just said you know we're tired of janice we don't want to apply janice anymore  so i think your honour's initial comment is the right one which is the court has its own reasons and it's inappropriate for this court to read anything more into it than the fact of the denial it may simply be that the court stance card for controversial cases term it may be and if the court didn't have a full complement at the time that the court or the petition in conference we just don't know what we have brought here is a case that i think different from jarkko in that we presented three but i think if you read the opinion it's pretty clear that the judges in that case were unhappy with the plaintiffs because of the procedural posture of the case or you have what is right in the in the scribes or mood or if the court doesn't get there i would certainly appreciate an opinion like judge takes his opinion a price which at least recognizes that the puzzle pieces of the court's doctrine don't fit together but i think this case is more than  it's simply different from price where this court was grappling with attention and or irreconcilably already between all ballot process here we're dealing with a precedent that has been overruled and asking does that underlying janice and the other things while important isn't a perfect overlap with the kind of sovereignty concerns one would have with the way the state supreme court has structured its entire bar a rrangement federalism issues there the comedy issues there i'm not saying maybe the supreme court's going to jump on news fine but these are not perfect  equivalents so respectful your honor i think the court dealt with that question in kalar in color one of the arguments was that this was more government speech and should be treated not as  the court rejected that argument and recognize the state bar functions much more like a trade association or you know and that guilds in a professional white collar context should be treated the same as skills and a blue collar speech but even with that not the case judge what i would still say keller uses rational basis whereas janice requires exacting scrutiny and i would say keller rejects the  howl and i represent the president and executive director of the state of wisconsin this case is really the latest chapter in what this court has previously described as the seemingly never ending battle between some wisconsin lawyers against mandatory membership in the state bar of wisconsin and as a result it really presents issues that are neither new nor complicated as is judge would you've already pointed out within the last  this court in the jarkko case summarily your firm another decision raising precisely the same questions in dismissing that case based on color and late for it after that case was decided by this court and you also recognize the u s supreme court was asked to take review and it rejected that the only thing that has changed since then is that rejection you also asked about flat versus what the court also refused to take search ferrari in that case even after they reaffirmed the decision after it was sent back to be considered in light of janice in fact they rejected it twice because the  plaintiffs after a search was rejected the st time asked for reconsideration of that and asked for it to be reconsidered in light of the jericho case and the court rejected the petition for review in that case as well but none of that is at all how the supreme court often bypasses opportunities to revisit its own precedents in light of intervening new precedents until it's good and ready to do so  percolating through the courts that there's nothing unusual about that the question is what do we do about it now is this efficiently different inclined to quality based on the over  comments in the dissent to their denial of review and jarkko where justice thomas made very clear that the claims are foreclosed by killer period and discussion and that only that court can overrule it constitutional decisions similarly every other court that has addressed this issue since janice was decided and that includes claims against the state bars in texas oregon oklahoma texas and louisiana and michigan had all come down the same way keller and laid her remain as this court found in the national rifle association case a lower court may not overrule a supreme court case even if cases for close the claims here to also briefly in the short period of time i have left share respond briefly to the comment that janice essentially over ruled any procedures relating to how st amendment rights m tekton in a mandatory bar association the lower court didn't reach that issue here binding it did not need to do so but the janice case did not overrule hudson which is the underlining case that addresses procedures protecting st amendment rights in this context it simply said that in light of what it is seen in the union context that that line drawing in those procedures were not working but keller specifically again pointed to heads in and said those procedures and maybe others would be applied couple here here there are procedures in place and we've described them and in some detail in the materials in the record and those procedures also protect the defendant or the dissenting members st amendment rights i see i'm going to run out of time here so i just want to reiterate that in light of the binding nature of kalar only perhaps as most recently affirmed in the  we respectfully request that the decision below be affirmed thank you very much mr costin may please the court clay kosky appearing on behalf of the wisconsin supreme court justices and i have two main points st the plaintiff s claims are foreclosed by keller nd the plaintiff cannot pursue his claims because he lacks standing to pursue them against the justices who are also immune from suit regarding that ending and the immunity questions come for the merrier right i think that is now part of the briefing a little odd in that respect i think this is maybe an unusual case where the merits arguments are in fact so such a lock and so strong that we chose to put them st of all though i debated it because i typically would do the same we think i want to talk about the standing immunity arguments because i don't have a lot to say about the the merits i think it's already been covered with case that the u s supreme court decided in one thousand nine hundred and eighty i mean that case the court observed that the virginia justices had the ability to independently initiate senshi a prosecution for a violation of the supreme court rules the justices do not have that authority in wisconsin as a distinguishing factor here that makes them you and i also want to point out that the complaint if you parse the complaint it is repeatedly focusing on the  rule making of the justices it does mention the enforcement later but it it also doesn't have any allegation that mr file had a plan to violate the rules and that only because says and so the court and the court of the court has enforced these rules with in disciplinary actions and her argument standing argument in argument are clear losers in the pre enforcement context though this is the analogy that i'd like the court to consider what the plaintiff is trying to do here is not to sue the prosecutor to stop the prosecutor from pursuing an action standing here with regard to the merits i want to make two brief points number one the point that the plaintiff made regarding the harris decision the u s supreme court case from two thousand and fourteen regarding the idea that there is now only one sufficient interest for a state bar we reject that and we believe as we put it on our brief that the plaintiff is selectively quoting from the harris case there is a key sentence on pages that five hundred and seventy three us six and fifty five thousand six hundred and fifty six in harris that every time the player has referencing harrison saying that the quality of legal services is no longer an interest the plaintiff is intentionally leaving a sentence out of that harris decision which expressly reference back to so that idea that harris somehow swiped away one of those two interests is not correct and we believe that that is an iranian reading of harris for the reasons that we stated in our briefing in this argument i would ask  susan b anthony was versus election commission it's really the right starting point that there are plenty of sued the election commission he didn't suit tom a particular bureaucrat at the election commission in a particular cubicle who has the initial decision making authority about whether to prosecute susan b anthony list insert time supervisor in say the administrative law judge is sued the commission because the commission is the authority that rules and i think that's the same here the supporter member in the supreme court of virginia case that the judges were immune because they were acting in their she just took out here and the judges are not acting in their judicial capacity they're acting in an administrative capacity as the administrators and superintending authority over wisconsin's judicial system the nd thing i want to say is for me this case really comes down to the question at least at this stage  court ever recognize in overruling or is that per se impossible and i think baskin and levine as long as they're both still good law so that it is possible for this court to by implication it's a tough pill to climb it's a rare and unique circumstance but it's possible when should that rare circumstance occur i think the answer is when the supreme court has overruled one foundational case all the cases that are built on that case that simply rely on a case that simply say tonight case but whose entire foundation is that case should also be over by implication that's argument today