Keller v. State Bar of California Page 2

Keller v. State Bar of California general information

Media for Keller v. State Bar of California

Audio Transcription for Oral Argument - February 27, 1990 in Keller v. State Bar of California

William H. Rehnquist:

Couldn't one say there is sufficient reason to... for California to require an integrated bar in the interest of attorney... to start out with, in the interest of maintaining attorney discipline and that sort of thing?

Anthony T. Caso:

Indeed, that is what this Court did in Lathrop.

But when the state also authorizes the bar to go beyond that, it's Petitioners' position that they must identify what state interest they are fulfilling.

William H. Rehnquist:

Well, but couldn't you say some of these things are at least offshoots of the need to regulate the practice of... regulate the practice of law?

Anthony T. Caso:

If indeed they are offshoots.

And the way the Court's test would... would look at that is, is this actually advancing the compelling state interest in the least drastic means.

William H. Rehnquist:

Well, do... but do you think the Lathrop decision that a state may integrate its bar is based on a compelling necessity for integrating the State Bar?

Anthony T. Caso:

I'm not sure that the Court in Lathrop used those terms.

I know when... at the end of the analysis in the plurality decision the court was just looking at, given these things that the bar is doing, the state is promoting an interest to improve the delivery of quality legal services.

So, it's not looking at the types of political conduct that the bar in this case engages in.

Antonin Scalia:

Indeed, Lathrop didn't involve speech at all, did it?

So you'd never get into... what was it... a speech case?

Anthony T. Caso:

It was both--

Antonin Scalia:

Was it--

Anthony T. Caso:

--a speech and association case, and only the association issue was decided.

Antonin Scalia:

--Only the association issue was decided.

There wasn't any compelled speech by anybody.

I thought your position was... and your answers didn't seem to indicate this... but I thought your position was that it can't be a compelling state interest to... to make the... the organized bar lobby.

Anthony T. Caso:

It... it... there can be underlying compelling state interest.

And let's take the Lathrop example.

Antonin Scalia:

To make them lobby.

What... what... what would be the... the example in which it would be necessary for the State Bar to lobby to compel--

Anthony T. Caso:

Well, to take the Lathrop example, improving the quality of legal services.

If the state legislature holds sway on those particular issues, the bar should be able to go to the legislature and lobby, for instance, on an issue relating to the qualifications for a law school, the qualifications one must possess before they could take a bar examination.

Anthony M. Kennedy:

--And then you're saying there's a compelling state interest that the bar association must lobby on qualifications for law schools?

Anthony T. Caso:

No, Your Honor.

I'm saying there is a compelling state interest... the base compelling is what I believe was recognized in Lathrop, was improving the quality and delivery of legal services.

And that base would then allow the bar to go and lobby on issues that are related to that, that actually advance that interest.

Byron R. White:

But the bar wouldn't have to do that?

Anthony T. Caso:

It would not have to do that.