RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0159p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

LUCILLE S. TAYLOR, an individual,

Plaintiff-Appellant,

v.

ROBERT J. BUCHANAN, in his official capacity as 

President of the State Bar of Michigan Board of 

Commissioners; DANA M. WARNEZ, in her official 

capacity as President-Elect of the State Bar of 

Michigan Board of Commissioners; JAMES W. HEATH, 

in his official capacity as Vice President of the State 

Bar of Michigan Board of Commissioners; DANIEL 

DIETRICH QUICK, in his official capacity as Secretary 

of the State Bar of Michigan Board of Commissioners; 

JOSEPH P. MCGILL, in his official capacity as 

Treasurer of the State Bar of Michigan Board of 

Commissioners,

Defendants-Appellees.

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No. 20-2002

Appeal from the United States District Court

for the Western District of Michigan at Grand Rapids.

No. 1:19-cv-00670—Robert J. Jonker, District Judge.

Decided and Filed: July 15, 2021

Before: SILER, MOORE, and THAPAR, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Derk A. Wilcox, MACKINAC CENTER LEGAL FOUNDATION, Midland, 

Michigan, for Appellant. Andrea J. Bernard, Charles R. Quigg, WARNER NORCROSS + 

JUDD LLP, Grand Rapids, Michigan, John J. Bursch, BURSCH LAW PLLC, Caledonia, 

>
No. 20-2002 Taylor v. Buchanan et al. Page 2

Michigan, for Appellees. Kerry Lee Morgan, PENTIUK, COUVREUR & KOBILJAK, P.C., 

Wyandotte, Michigan, for Amicus Curiae.

MOORE, J., delivered the opinion of the court in which SILER and THAPAR, JJ., 

joined. THAPAR, J. (pp. 6–7), delivered a separate concurring opinion.

_________________

OPINION

_________________

KAREN NELSON MOORE, Circuit Judge. Attorneys in Michigan, like those in most 

other states, must join an integrated bar association in order to practice law. In this suit, Lucille 

S. Taylor, a Michigan attorney, argues that requiring her to join the State Bar of Michigan 

violates her freedom of association, and further that the State Bar of Michigan’s use of a portion 

of her mandatory membership dues for certain advocacy activities violates her freedom of 

speech. The district court rejected Taylor’s First Amendment claims, holding that they are 

foreclosed by two Supreme Court decisions that have not since been overruled. We AFFIRM.

The first of the two cases relied upon by the district court is Lathrop v. Donohue, 

367 U.S. 820 (1961). There, the Court held that compulsory membership in the Wisconsin Bar 

as a condition of practicing law (along with its compulsory membership fees) did not violate 

freedom-of-association principles. Id. at 843 (plurality op.); id. at 849 (Harlan, J., concurring in 

the judgment). The second case is Keller v. State Bar of California, where the Court considered 

a First Amendment challenge to the State Bar of California’s use of “membership dues to finance 

certain ideological or political activities” with which the plaintiffs disagreed. 496 U.S. 1, 4 

(1990). Reaffirming that a state may require attorneys to join an integrated bar association in 

order to practice law, the unanimous Court held that the bar association could use membership 

dues to fund activities “germane” to the regulation of the legal profession and the improvement 

of legal services without violating freedom-of-speech principles. Id. at 13–14. To do so, the 

Court relied heavily upon its earlier reasoning in Abood v. Detroit Board of Education, where the 

Court upheld a state law allowing local government employers and unions to enter into “agency 

shop” agreements, “whereby every employee represented by a union even though not a union 

member must pay to the union, as a condition of employment, a service fee equal in amount to 
No. 20-2002 Taylor v. Buchanan et al. Page 3

union dues,” 431 U.S. 209, 211 (1977), with the funds used to finance union activities related to 

the union’s collective-bargaining purpose. See Keller, 496 U.S. at 9–11, 13–14, 16–17.

To Taylor’s credit, she acknowledges that Lathrop and Keller are an insurmountable 

hurdle if they remain good law. Taylor concedes that her compulsory membership in the State 

Bar of Michigan does not offend the First Amendment under either case. See, e.g., Appellant Br. 

at 3 (“Lathrop . . . found that such integrated bar membership requirements did not violate free 

association rights.”). And while the State Bar of Michigan does engage in advocacy germane to 

the legal profession, Taylor concedes that its activities do not cross the line set in Keller. Id. at 7 

(“Lucille Taylor does not challenge that, at all times relevant to this lawsuit, the Bar has 

constrained itself to public advocacy that was previously held allowable under Keller.” (internal 

citation omitted)); see also R. 16 (Joint Statement of Material Facts at 9) (Page ID #92) 

(“Plaintiff is not alleging that the State Bar of Michigan has exceeded Keller’s parameters.”). 

Instead, Taylor argues that Lathrop and Keller no longer bind this court because of intervening 

precedent in the form of Janus v. American Federation of State, County, and Municipal 

Employees, Council 31, 138 S. Ct. 2448 (2018), where the Court overruled Abood and held that 

First Amendment challenges to similar union laws are to be analyzed under at least the 

heightened “exacting scrutiny” standard that the Court had favored over Abood in Harris v. 

Quinn, 573 U.S. 616, 647–48 (2014). See Janus, 138 S. Ct. at 2460, 2465. According to Taylor, 

because Janus overruled Abood, and Abood was the foundation upon which the Court built 

Keller, we need not follow Keller (and, by association, Lathrop) here and are free to consider 

anew her constitutional claims. We disagree.

Our cases are clear that we may not disregard Supreme Court precedent unless and until 

it has been overruled by the Court itself. Thompson v. Marietta Educ. Ass’n, 972 F.3d 809, 813 

(6th Cir. 2020), cert. denied, No. 20-1019, 2021 WL 2301972 (U.S. 2021). Even where 

intervening Supreme Court decisions have undermined the reasoning of an earlier decision, we 

must continue to follow the earlier case if it “directly controls” until the Court has overruled it. 

Id. at 812, 814; Grutter v. Bollinger, 288 F.3d 732, 743–44 (6th Cir. 2002) (en banc) (“If a 

precedent of [the] Court has direct application in a case, yet appears to rest on reasons rejected in 

some other line of decisions, the Court of Appeals should follow the case which directly 
No. 20-2002 Taylor v. Buchanan et al. Page 4

controls, leaving to [the Supreme] Court the prerogative of overruling its own decisions.” 

(alterations original but first alteration omitted) (quoting Agostini v. Felton, 521 U.S. 203, 237 

(1997)), aff’d, 539 U.S. 306 (2003). In other words, it is for the Supreme Court to tell the courts 

of appeals when the Court has overruled one of its decisions, not for the courts of appeals to tell 

the Court when it has done so implicitly. See Hohn v. United States, 524 U.S. 236, 252–53 

(1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless 

of whether subsequent cases have raised doubts about their continuing vitality.”).

Here, the district court correctly concluded that Lathrop and Keller continue to bind the 

lower courts despite the Court’s ruling in Janus. To begin, the majority opinion in Janus made 

no mention of Keller (or Lathrop) in overruling Abood. Indeed, in Harris, the Janus precursor 

mentioned above, the Court expressly rejected the notion that its ruling impacted the continued 

validity of Keller, which “fit[] comfortably within the framework applied in [Harris].” Harris, 

573 U.S. at 655–56. Even the two justices who have signaled their willingness to reconsider 

Keller in light of Janus have acknowledged that Keller remains binding upon the lower courts 

until the Supreme Court says otherwise. Jarchow v. State Bar of Wis., 140 S. Ct. 1720, 1721 

(2020) (“[A]ny challenge to our precedents will be dismissed for failure to state a claim, before 

discovery can take place. . . . Short of a constitutional amendment, only we can rectify our own 

erroneous constitutional decisions.”) (Thomas, J., joined by Gorsuch, J., dissenting from the 

denial of cert.). Consistent with the numerous courts faced with claims like Taylor’s in the wake 

of Janus, we hold that Lathrop and Keller remain good law. See, e.g., Jarchow v. State Bar of 

Wis., No. 19-3444, 2019 WL 8953257, at *1 (7th Cir. 2019), cert. denied, 140 S. Ct. 1720 

(2020); Fleck v. Wetch, 937 F.3d 1112, 1115 (8th Cir. 2019), cert. denied, 140 S. Ct. 1294 

(2020), reh’g denied, 140 S. Ct. 2756 (2020); Crowe v. Or. State Bar, 989 F.3d 714, 725 (9th 

Cir. 2021) (“But Keller plainly has not been overruled.”), petition for cert. filed (May 27, 2021); 

Schell v. Chief Just. & Justs. of Okla. Sup. Ct., --- F.4th ----, 2021 WL 2657106, at *8 (10th Cir. 

June 29, 2021); McDonald v. Longley, --- F.4th ----, 2021 WL 2767443, at *6 n.14 (5th Cir. July 

2, 2021); see also Thompson, 972 F.3d at 813–14 (upholding a district court decision based upon 
No. 20-2002 Taylor v. Buchanan et al. Page 5

Minnesota State Board for Community Colleges v. Knight, 465 U.S. 271 (1984), despite 

recognizing that “Knight’s reasoning conflicts with the reasoning in Janus”).1

Because, as Taylor concedes, Lathrop and Keller doom her First Amendment claims, we 

AFFIRM the judgment of the district court.

1

In Schell and McDonald, the Tenth and Fifth Circuits respectively allowed First Amendment 

claims regarding the Oklahoma Bar Association and State Bar of Texas to proceed but only to the extent that the 

plaintiffs in those cases alleged that those integrated bar associations engaged in activities that were not “germane” 

to the practice of law. See Schell, 2021 WL 2657106, at *1; McDonald, 2021 WL 2767443, at *9–14; see also

Boudreaux v. La. State Bar Ass’n, --- F.4th ----, 2021 WL 2767318, at *4–5 (5th Cir. July 2, 2021); Crowe, 989 F.3d 

at 729 (holding that Lathrop does not preclude a free-association claim challenging compelled membership in a bar 

association that “engages in nongermane political activities”). We do not deal with the same circumstances here 

given Taylor’s concession that the State Bar of Michigan’s activities are consistent with Lathrop and Keller.
No. 20-2002 Taylor v. Buchanan et al. Page 6

_________________

CONCURRENCE

_________________

THAPAR, Circuit Judge, concurring. Because Supreme Court precedent forecloses the 

plaintiff’s compelled association claim, and because the plaintiff failed to bring the one claim 

that remains viable, I concur. 

Michigan has an integrated bar. That means that the plaintiff must provide financial 

support to the Michigan Bar Association, which engages in lobbying and other such work. As 

the majority notes, the plaintiff’s claim that forcing her to be part of an integrated bar violates her 

associational rights cannot succeed. The reason lies not in the First Amendment, but in Supreme 

Court precedent. 

First, the Supreme Court held that mandatory bar membership, like union-shop 

agreements, was compelled association allowed by the First Amendment. Lathrop v. Donohue, 

367 U.S. 820, 842–43 (1961). Then, the Court held that public employees could be required to 

pay union dues. Abood v. Detroit Bd. of Educ., 431 U.S. 209, 235–36 (1977). And in Keller v. 

State Bar of California, the Court again upheld mandatory bar membership and again analogized 

“the relationship of the State Bar and its members” to “the relationship of employee unions and 

their members.” 496 U.S. 1, 12 (1990). So relying on its precedent in Abood, the Keller Court 

reasoned that just as a state could require public employees to pay union dues, so too could a 

state require lawyers to pay state bar dues. Id. at 13–14. As far as the Court was concerned, 

state bars and public-sector unions seemed to go hand-in-hand.

But then in Janus, the Supreme Court overruled Abood, and said that “[c]ompelling 

individuals to mouth support for views they find objectionable” violates the First Amendment. 

Janus v. Am. Fed’n of State, Cnty. & Mun. Emps., Council 31, 138 S. Ct. 2448, 2463 (2018). 

And the Court repeated Thomas Jefferson’s warning that compelling an individual “to furnish 

contributions of money for the propagation of opinions which he disbelieves and abhors is sinful 

and tyrannical.” Id. at 2464 (cleaned up). So after Janus ̧ one might believe that this is an easy 

case. But it is not. Why? Because Janus did not overrule Keller’s bar mandate. See Jarchow v. 
No. 20-2002 Taylor v. Buchanan et al. Page 7

State Bar of Wis., 140 S. Ct. 1720, 1720 (2020) (Thomas, J., dissenting from denial of certiorari) 

(noting that Janus “casts significant doubt” on Keller). But see Harris v. Quinn, 573 U.S. 616, 

655–56 (2014) (refusing to extend Abood but maintaining Keller’s vitality). And only the 

Supreme Court can overrule its previous decisions. Until it does, we must follow Keller.

But even after Keller, some claims can still be brought against integrated bars. If an 

integrated bar association engages in political or ideological activity that does not relate to 

regulating the legal profession, a plaintiff can bring a freedom of speech and/or association 

claim. The speech claim would prevail if an integrated bar association used mandatory 

membership fees to fund non-germane political or ideological activity without providing 

adequate opt-out procedures. See Chicago Tchrs. Union v. Hudson, 475 U.S. 292, 306–07 

(1986) (identifying opt-out procedures). The association claim could go forward even if the bar 

association allowed lawyers to opt out of funding ideological activity. See Keller, 496 U.S. at 

17; see also McDonald v. Longley, No. 20-50448, 2021 WL 2767443 at *9 (5th Cir. July 2, 

2021). The plaintiff here, however, concedes that the Michigan State Bar’s ideological activities 

“do not cross the [germaneness] line set in Keller.” Maj. Op. at 3. So neither claim remains. 

Because the plaintiff did not bring a viable challenge, I concur.