Opposition Brief — Rajeh A. Saadeh, Petitioner v. New Jersey State Bar Association

No. 25-1002

In the

Supreme Court of the United States

RAJEH A. SAADEH,

Petitioner,

v.

NEW JERSEY STATE BAR ASSOCIATION,

Respondent.

On Petition for a Writ of Certiorari to the

Superior Court of New Jersey, A ppellate Division

BRIEF IN OPPOSITION

Lawrence S. Lustberg

Counsel of Record

Michael R. Noveck

A ndrew J. Marino

Madhulika Murali

FBT Gibbons LLP

One Gateway Center

Newark, NJ 07102

(973) 596-4500

llustberg@fbtgibbons.com

Attorneys for Respondent

May 26, 2026

392500

(800) 274-3321 • (800) 359-6859

i

QUESTION PRESENTED

The New Jersey State Bar Association is a voluntary

association of New Jersey attorneys. It advocates on

behalf of its members, including by supporting diversity

in the legal profession—a position it has long held and

publicly championed. Believing that it cannot credibly

advocate for a diverse bar without itself having a diverse

leadership, the Association has adopted a selection process

designed to provide members of underrepresented groups

with opportunities to obtain leadership roles. That process

has changed over the years, including in November 2025

when the Association expanded the groups eligible for

those roles.

Petitioner is an Association member who once

served on the Board, but though eligible to join it for

many years, has not sought to do so. Instead, he sued

the Association in state court, arguing that its selection

process violates New Jersey’s antidiscrimination law. The

intermediate appellate court did not decide that claim.

Rather, it held that the First Amendment’s protection

of expressive association would shield the Association’s

leadership selection process against the violation of

state antidiscrimination law alleged by Petitioner—a

straightforward application of Boy Scouts of America v.

Dale, 530 U.S. 640 (2000).

The question presented is:

Whether this Court should review an unpublished,

nonprecedential state-court decision applying Dale to a

voluntary bar association’s selection of its own leaders,

where the petitioner did not apply, or say that he would

apply, for any leadership position; where reversal on the

federal question would not resolve the undecided statelaw claim regarding the legality of the selection process;

and where the process litigated below has now changed.

ii

CORPORATE DISCLOSURE

Respondent New Jersey State Bar Association, a nonprofit corporation, has no parent or publicly held company

owning 10% or more of its stock and does not have a stock

ticker symbol.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . 3

A. Factual Background . . . . . . . . . . . . . . . . . . . . . . . 3

B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . 8

REASONS FOR DENYING THE PETITION . . . . . . 9

I.

Petitioner Lacks Article III Standing . . . . . . . . . 9

II. There Is No Split Among Lower Courts . . . . . . 13

III. This Case Is An Exceptionally Poor Vehicle

For Resolving The Question Presented . . . . . . 16

IV. The Decision Below Is Correct . . . . . . . . . . . . . . 20

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

iv

TABLE OF CITED AUTHORITIES

Cases

Page

303 Creative LLC v. Elenis,

600 U.S. 570 (2023) . . . . . . . . . . . . . . . . . . . . . . . . 20, 24

Acheson Hotels, LLC v. Laufer,

601 U.S. 1 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Adarand Constructors, Inc. v. Mineta,

534 U.S. 103 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

American Alliance for Equal Rights v.

Fearless Fund Management, LLC,

103 F.4th 765 (11th Cir. 2024) . . . . . . . . . . . . . . . . 14, 24

Ams. for Prosperity Found. v. Bonta,

594 U.S. 595 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

ASARCO, Inc. v. Kadish,

490 U.S. 605 (1989) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Baker v. City of McKinney,

145 S. Ct. 11 (2024) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Bd. of Dirs. of Rotary Int’l v. Rotary Club of Duarte,

481 U.S. 537 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Blankenship v. NBCUniversal, LLC,

144 S. Ct. 5 (2023) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

v

Cited Authorities

Page

Box v. Planned Parenthood of Ind. & Ky., Inc.,

587 U.S. 490 (2019) . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

Boy Scouts of America v. Dale,

530 U.S. 640 (2000) . . . . . . . . . . . 1, 3, 14, 16, 18, 20-24

Carney v. Adams,

592 U.S. 53 (2020) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Clinton v. Jones,

520 U.S. 681 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

First Choice Women’s Res. Ctrs. v. Davenport,

608 U.S. ___ (2026) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Food & Drug Admin. v. All. for Hippocratic Med.,

602 U.S. 367 (2024) . . . . . . . . . . . . . . . . . . . . . . . . 11, 12

Gratz v. Bollinger,

539 U.S. 244 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Herb v. Pitcairn,

324 U.S. 117 (1945) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Hishon v. King & Spalding,

467 U.S. 69 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Huber v. N.J. Dep’t of Env’t Prot.,

562 U.S. 1302 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 17

vi

Cited Authorities

Page

Hurley v. Irish-Am. Gay, Lesbian

& Bisexual Grp. of Boston,

515 U.S. 557 (1995) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Illinois v. Gates,

462 U.S. 213 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Int’l Bhd. of Teamsters v. United States,

431 U.S. 324 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Lab. Corp. of Am. Hldgs. v. Davis,

605 U.S. 327 (2025) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lance v. Coffman,

549 U.S. 437 (2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Martin v. Blessing,

571 U.S. 1040 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . . 25

Maslenjak v. United States,

582 U.S. 335 (2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Michigan v. Long,

463 U.S. 1032 (1983) . . . . . . . . . . . . . . . . . . . . . . . 17, 20

N.J. Coal. of Auto. Retailers, Inc. v. Ford Motor Co.,

339 A.3d 245 (N.J. 2025) . . . . . . . . . . . . . . . . . . . . . . 10

National Ass’n of Diversity Officers

in Higher Education v. Trump,

167 F.4th 86 (4th Cir. 2026) . . . . . . . . . . . . . . . . . 14, 15

vii

Cited Authorities

Page

Ne. Fla. AGCA v. Jacksonville,

508 U.S. 656 (1993) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Nike, Inc. v. Kasky,

539 U.S. 654 (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Roberts v. United States Jaycees,

468 U.S. 609 (1984) . . . . . . . . . . . . . . . . . . . . . 21-23, 25

Rumsfeld v. F. for Acad. & Institutional Rts., Inc.,

547 U.S. 47 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . 20, 22

Runyon v. McCrary,

427 U.S. 160 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 23, 24

Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Spokeo, Inc. v. Robins,

578 U.S. 330 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

State v. Hodge,

523 A.2d 163 (N.J. 1986) . . . . . . . . . . . . . . . . . . . . . . . 17

Steel Co. v. Citizens for Better Environment,

523 U.S. 83 (1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Taggart v. Weinacker’s, Inc.,

397 U.S. 223 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

viii

Cited Authorities

Page

Ticor Title Ins. Co. v. Brown,

511 U.S. 117 (1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

TransUnion LLC v. Ramirez,

594 U.S. 413 (2021) . . . . . . . . . . . . . . . . . . . . . . . . 10, 12

Triangle Improvement Council v. Ritchie,

402 U.S. 497 (1971) . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Uzuegbunam v. Preczewski,

592 U.S. 279 (2021) . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

429 U.S. 252 (1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

W. Point Island Civic Ass’n v. Dover Twp. Comm.,

255 A.2d 237 (N.J. 1969) . . . . . . . . . . . . . . . . . . . . . . . 17

Waller v. Georgia,

467 U.S. 39 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Warth v. Seldin,

422 U.S. 490 (1976) . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Statutes and Other Authorities

U.S. Const. amend. I . . . . . . . . . . . . . 1, 8, 14, 15, 19-21, 23

U.S. Const. art. III . . . . . . . . . . . . . . . . . . . . . . . . 1, 3, 9-13

ix

Cited Authorities

Page

28 U.S.C. §1257 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

N.J. Ct. R. 1:20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

N.J. Ct. R. 1:36-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Am. Bar Ass’n, Bars By Type, https://www.americanbar.org/groups/bar-leadership/resources/

resourcepages/bar-worldbasics/barsbytype/ (last

visited May 20, 2026) . . . . . . . . . . . . . . . . . . . . . . . . . . 19

N.J. State Bar Ass’n, Diversity, Equity and

Inclusion at the NJSBA, https://njsba.com/deiinitiatives/ (last visited May 20, 2026) . . . . . . . . . . . . . 4

N. J. State Bar A ss’n, NJSBA Nominating

Committee Seeks Candidates for Leadership

Positions (Oct. 31, 2025), https://community.

njsba.com/blogs/njsba-staff/2025/10/31/njsbanominating-committee-seeks-candidates-for-le . 5, 18

Stephen Shapiro et al., Supreme Court Practice

(10th ed. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Sup. Ct. R. 10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 25

1

INTRODUCTION

The New Jersey State Bar Association serves as

“a collective voice in matters of concern to the legal

profession.” It is a private, voluntary association of New

Jersey attorneys, about one in six of whom join it. The

Association has long voiced its views on the importance of

diversity in the bar. That commitment to diversity shapes

how the Association fills a small portion of, for example, its

Board of Trustees—eight of forty-nine seats, designated

as at-large positions open to members of a variety of

otherwise underrepresented groups.

Petitioner—an Association member—disagrees with

that leadership-selection process. He sued in state court,

asserting violations of the New Jersey Law Against

Discrimination. In an unpublished, nonprecedential

opinion, New Jersey’s intermediate appellate court did

not decide whether the Association’s selection methods

violated state law. It held only that, if they did, the

Association’s First Amendment rights would shield it

from liability under Boy Scouts of America v. Dale, 530

U.S. 640 (2000).

Petitioner now seeks review by this Court. Four

reasons counsel the denial of certiorari.

The first is the threshold issue of Article III standing.

This case was litigated in state court, so the parties never

addressed that jurisdictional issue below. But Petitioner

has never alleged, let alone shown, that he would have

applied for any of the seats he challenges, or for any other

position on the Board or its committees for which he has

long been eligible. Confronted below with the argument

2

that he could not make out a prima facie case without

showing he would have applied, Petitioner said only that

he did not need to make such a showing. And given the

opportunity to apply, including when the state trial court

initially struck down the program, Petitioner failed to do

so.

Second, there is no conflict among the lower courts.

Of the two decided cases Petitioner cites, one applied the

same doctrinal framework to materially different facts

and the other does not address expressive association at

all. The other cases Petitioner relies on are pending suits

and pre-judgment settlements that have not produced

holdings in conflict with the one below. How this Court’s

recent jurisprudence on diversity programs—from the

very different context of higher education—interacts

with its expressive-association cases is a question lower

courts have barely begun to answer, much less disagree

about. And the pending lawsuits illustrate that there will

be many opportunities for those disputes to percolate up

to this Court if its review is later warranted.

Third, even if the Question Presented warranted

review, this case would be a poor vehicle for it. The

petition’s premise—that the Association “reserves”

seats for “specific minority groups”—is wrong. The

Association’s leadership-selection process has changed.

Now, every at-large seat is open through multiple paths,

including membership in affinity bar associations that

include lawyers of any background. Petitioner himself

belongs to one of them. And because the decision below did

not address whether the Association’s program violated

New Jersey law, this Court’s review could be advisory only.

3

Finally, the decision below is correct. The Appellate

Division found that the Association is an expressive

organization with a documented commitment to diversity

in the profession, that forcing it to abandon its leadershipselection criteria would materially burden its expression,

and that the State’s interests do not justify the burden.

That straightforward application of Dale to this particular

set of facts does not warrant further review.

This Court should not use its discretionary jurisdiction

to hear an appeal from an unpublished, nonprecedential

opinion of an intermediate state appellate court applying

this Court’s established precedent to a specific factual

scenario involving a policy that no longer exists and that

may not violate state antidiscrimination law, all from a

Petitioner who lacks Article III standing. The petition

should be denied.

STATEMENT OF THE CASE

A. Factual Background

The New Jersey State Bar Association is a private

association of New Jersey attorneys. Of the roughly

98,000 lawyers in New Jersey, around 16,000 belong to the

Association. Pet. App. 5a. Membership is open to “[a]ny

person who is a member in good standing of the Bar of

New Jersey or who holds a limited license to practice” in

New Jersey. Pet. App. 4a. Unlike bar associations in many

other states, membership in New Jersey’s Association is

voluntary, not mandatory. The Association performs no

licensing, disciplinary, or governmental functions—those

are done by the New Jersey Supreme Court, through its

Office of Attorney Ethics, District Ethics Committees, and

Disciplinary Review Board. See generally N.J. Ct. R. 1:20.

4

For its members, the Association serves as “a collective

voice in matters of concern to the legal profession.” Pet.

App. 26a. It speaks for them on issues affecting the bar,

advances “the honor and dignity of the profession,” and

fosters social and professional connection among lawyers.

Pet. App. 4a.

The Association’s commitment to diversity. The

Association has publicly committed itself to “promoting

and fostering a diverse and inclusive bar association.” Pet.

App. 6a. It maintains a standing Diversity Committee

whose mission is to “[f]acilitate[ ] the [Association’s] goal

of fostering and promoting an inclusive environment that

values the unique contributions of diverse individuals

and organizations.” Id. It employs a full-time Associate

Executive Director for Community Engagement and

Diversity, who develops strategies for increasing the

participation of diverse lawyers in the Association’s work.

Id. And it maintains a diversity policy for its continuing

legal education program, with the stated goal “to increase

diversity on CLE panels and presentations, so as to

better reflect the diversity of the legal profession and our

membership.” Id.

That commitment has long been in tension with the

demographics of the Association’s leadership. The trial

court record revealed that between 1989 and 1999, the

Association’s Board never had more than two non-white

members. By 2010, it had never had more than four.

Against that background, and consistent with its mission

to “promote full and equal participation in the association,

our profession, and the justice system by all persons,”1

1. N.J. State Bar Ass’n, Diversity, Equity and Inclusion

at the NJSBA, https://njsba.com/dei-initiatives/ (last visited May

20, 2026).

5

the Association sought leadership that better reflected

the bar it represents.

The selection process. The Association’s effort to

diversify its leadership has evolved over more than thirty

years. It began in 1989, when the Association created

two at-large Board seats reserved for lawyers from

underrepresented groups. Pet. App. 6a–7a. In 1999, the

Board added a third seat, with each of those seats reserved

for a member of a specific underrepresented demographic

group. Pet. App. 7a. By 2010, that practice had grown to

five seats. Id. That year, the Board amended its bylaws

to formalize the program, increasing the number of atlarge seats to eight and directing the Board to designate

annually the groups eligible to fill each one. Id. In 2021,

members of recognized “diversity bar associations”

became eligible for three of the at-large seats, with five

other seats designated for particular demographic groups.

Pet. App. 8a–9a.

Because of an injunction issued by the trial court in

this case, the Association suspended the program from

2022 to 2025. All at-large seats during that period were

open to “every member in good standing.” Pet. App. 16a.

The Association reinstated a revised version of

the program in November 2025, after the New Jersey

Supreme Court denied review of the Appellate Division’s

decision. Today, the eight at-large seats of the total fortynine seats are available to members of groups designated

annually by the Board. 2 Those recognized groups are:

2. See N.J. State Bar Ass’n, NJSBA Nominating Committee

Seeks Candidates for Leadership Positions (Oct. 31, 2025),

https://community.njsba.com/blogs/njsba-staff/2025/10/31/njsbanominating-committee-seeks-candidates-for-le.

6

“Hispanic/Latino/a/x; Asian/Pacific American; Black/

African America; LGBTQ+; women; lawyers over the

age of 70; attorneys with disabilities/differing abilities;

and attorneys who are members of a diversity bar

association as recognized in the [Association] Policy

Manual.” The recognized diversity bar associations

are the Asian Pacific American Lawyers Association

of New Jersey; Association of Black Women Lawyers

of New Jersey; Association of Portuguese Speaking

Attorneys of New Jersey; Caribbean Bar Association

of New Jersey; Garden State Bar Association; Haitian

American Lawyers Association of New Jersey; Hispanic

Bar Association of New Jersey; Jewish Bar Association

of New Jersey; Korean Bar Association of New Jersey;

New Jersey Women Lawyers Association; New Jersey

Muslim Lawyers Association; Q Law NJ, Inc.; and South

Asian Bar Association of New Jersey.

Each of these affinity organizations is open to any

member in good standing of the New Jersey bar who is

employed or domiciled within New Jersey, or to professors

or law students at any ABA-accredited law school,

without regard to race, gender, or any other demographic

characteristic. 3 So in practice, every at-large seat on the

Board of Trustees—as well as the Nominating Committee

and the Judicial and Prosecutorial Appointments

Committee (JPAC), also at issue in this case—could be

filled by a white man.4

3. Some diversity bar associations also have membership

options for out-of-state attorneys and other legal professionals.

4. The Nominating Committee vets candidates from the

general membership for positions on the Board; the JPAC reviews

candidates for positions in the New Jersey judiciary and as county

7

Petitioner. Petitioner has been a member of the

Association for over 15 years. Pet. App. 3a. He has served

on five Association committees—Diversity; Equity

Jurisprudence; Appellate Practice; Continuing Legal

Education Advisory; and Amicus—and belonged to twelve

of the Association’s substantive sections, including the

Minorities in the Profession Section. Pet. App. 11a nn.2–3.

He is a former president, and current member, of the New

Jersey Muslim Lawyers Association, one of the diversity

bar associations the Association recognizes as qualifying

its members for the at-large seats. 5

In February 2019, Petitioner was elected to the

Young Lawyers Division seat on the Board to complete

an unfinished term. Pet. App. 11a. He then served a full

two-year term in that seat from May 2019 to May 2021,

after which he aged out of the Young Lawyers position.

Since then, he has not sought any other position on the

Board, the Nominating Committee, or the JPAC. Id.

From May 2021 forward, Petitioner has always been

eligible for a broad range of positions, including the seat

on the Board reserved for lawyers practicing in Somerset

County; at least five other Section/Committee Board seats;

and several seats on the JPAC. He also has been eligible

for the at-large seats reserved for members of recognized

diversity bar associations through his membership in the

New Jersey Muslim Lawyers Association. He applied for

prosecutors. Pet. App. 9a–10a. Like the Board, some seats on these

committees are reserved for any member of the underrepresented

groups eligible for at-large Board seats.

5. Indeed, two of the Board’s eight at-large seats currently

are held by members of the Muslim Lawyers Association.

8

none of these positions. Between 2022 and 2025, when the

Association’s program was suspended, Petitioner (like all

other Association members) was eligible to apply for any

seat. He did not. And today, by virtue of his membership

in an affinity bar association, Petitioner remains eligible to

apply for every seat he challenges. He still has not done so.

The petition asserts that Petitioner “wants to serve

on the board again.” Pet. 6. His conduct does not support

that assertion.

B. Procedural History

In 2021, Petitioner filed this action in the Superior

Court of New Jersey, Law Division, alleging that

the Association’s selection processes for the Board,

Nominating Committee, and JPAC violated the New

Jersey Law Against Discrimination. Pet. App. 12a.

The parties cross-moved for summary judgment. Both

motions were initially denied, but on reconsideration, the

trial court granted Petitioner’s motion and denied the

Association’s.

The Association sought and was granted leave to file

an interlocutory appeal. Following briefing and argument,

the Superior Court of New Jersey, Appellate Division,

reversed in an unpublished, nonprecedential opinion.

Declining to decide the state statutory question of whether

the leadership-selection program constituted unlawful

discrimination under state law, Pet. App. 31a–32a, the

court reversed on federal constitutional grounds, holding

that the Association had a First Amendment right to select

a governing body of leaders that reflected an expression

of its commitment to diversity in the profession. Pet. App.

32a.

9

The New Jersey Supreme Court denied review on

September 16, 2025. Pet. App. 1a. Petitioner now seeks

certiorari to review the unpublished decision of New

Jersey’s intermediate appellate court.

REASONS FOR DENYING THE PETITION

I.

Petitioner Lacks Article III Standing.

The petition should be denied because Petitioner

cannot invoke this Court’s jurisdiction. Article III

requires concrete and particularized injury—and in cases

challenging an allegedly discriminatory selection process,

it requires evidence that the plaintiff was able and ready to

participate in that process but for the challenged practices.

Petitioner offered no such evidence below. He never

applied for any of the positions he challenges—not even

during the three years when the Association suspended

the program and every seat was open to him. And when

the Association argued below that he could not make out

a prima facie case without evidence he would have applied

for a challenged seat absent the program, Petitioner did

not offer it. Without evidence he actually would apply, what

remains is Petitioner’s generalized disagreement with the

program. That does not confer standing.

Article III limits this Court’s jurisdiction to “Cases”

and “Controversies.” U.S. Const. art. III, § 2. That limit

applies with full force to this Court’s review of state-court

judgments under 28 U.S.C. § 1257. Indeed, this Court

must satisfy itself of jurisdiction even when the courts

below did not. Adarand Constructors, Inc. v. Mineta,

534 U.S. 103, 110 (2001) (per curiam) (citing Steel Co. v.

Citizens for Better Environment, 523 U.S. 83, 95 (1998)).

10

That, of course, is the case here, because New Jersey

courts do not require plaintiffs to meet Article III’s

requirements. See N.J. Coal. of Auto. Retailers, Inc. v.

Ford Motor Co., 339 A.3d 245, 251 (N.J. 2025) (“Unlike

the Federal Constitution, there is no express language

in New Jersey’s Constitution which confines the exercise

of our judicial power to actual cases and controversies.”)

(citation modified). The issue therefore was not litigated

below. But a petitioner seeking review in this Court must

establish constitutional standing regardless of what the

state courts required. ASARCO, Inc. v. Kadish, 490 U.S.

605, 623–24 (1989); Waller v. Georgia, 467 U.S. 39, 43 n.3

(1984).

To establish standing, a plaintiff must “have a personal

stake in the case.” TransUnion LLC v. Ramirez, 594 U.S.

413, 423 (2021) (citation modified). That requires “an injury

in fact that is [1] concrete, particularized, and actual

or imminent,” “[2] was likely caused by the defendant,”

and “[3] would likely be redressed by judicial relief.”

Id. In a case challenging an allegedly discriminatory

application process, those requirements demand more

than a disagreement with the process. The plaintiff must

“introduce[ ] at least some evidence that, e.g., [he] had

applied in the past, there were regular opportunities

available with relevant frequency, and [he was] ‘able and

ready’ to apply for them.” Carney v. Adams, 592 U.S. 53,

65–66 (2020); accord Ne. Fla. AGCA v. Jacksonville, 508

U.S. 656, 668 (1993) (plaintiff “alleged that it[ ] regularly”

availed itself of the process and “would” do so absent any

purported discrimination); Vill. of Arlington Heights

v. Metro. Hous. Dev. Corp., 429 U.S. 252, 264 (1977)

(plaintiff showed “at least a ‘substantial probability’” that

he was individually harmed (quoting Warth v. Seldin, 422

11

U.S. 490, 504 (1976))). Where the plaintiff offers no such

evidence, what remains is a “generalized grievance[],”

which is insufficient under Article III. Lance v. Coffman,

549 U.S. 437, 439 (2007); see also Food & Drug Admin. v.

All. for Hippocratic Med., 602 U.S. 367, 381 (2024).

Petitioner did not even seek to meet this fact-specific

standard. Since leaving the Board in May 2021, he has

not applied for any of the Board, Nominating Committee,

or JPAC positions for which he has long been eligible.

Pet. App. 11a. That includes the three-year period, from

2022 through 2025, when the Association suspended the

program during this litigation and every seat was open

to any general member of the Association. If Petitioner

was able and ready to serve, he could certainly have done

so then. He did not.

Petitioner’s litigation conduct resolves any remaining

doubt. His 63-page Amended Complaint says 48 different

times that the Association’s program was “particularly

egregious and outrageous,” e.g., Am. Compl. 27, but

never once alleges that he was ready to apply. When the

Association argued that Petitioner’s statutory claim failed

because he could not carry his “burden of proving that

he would have applied” for the Board “had it not been for

th[e] practices” to which he objects, Int’l Bhd. of Teamsters

v. United States, 431 U.S. 324, 368 (1977), Petitioner did

not respond with evidence that he would have. He instead

took the position, in his briefs below, that he did not have

to. See Saadeh App Div Br. 10. Indeed, he went so far as

to argue that he “d[id] not need to do anything, including

desire or express interest in any of the . . . seats at issue.”

Id. at 15 (emphasis added).

12

The petition belatedly, albeit vaguely, reverses course.

But its assertions—that Petitioner “wants to serve on the

board again,” Pet. 6, and “is ‘able and ready’ to apply,” Pet.

21 (quoting Ne. Fla. AGCA, 508 U.S. at 666)—are bare

legal conclusions that cannot substitute for the absence of

a factual record. Indeed, they are belied by his actions and

his legal position below. Instead, as the Appellate Division

recognized, Petitioner’s complaint was based not on any

concrete injury, but on his “different vision of a diverse

leadership for the Association.” Pet. App. 28a.

Article III “screens out plaintiffs,” like Petitioner,

“who might have only a general legal, moral, ideological,

or policy objection to a particular government action.”

All. for Hippocratic Med., 602 U.S. at 381. He objects

that the program exists, not that it has hurt him. See

Acheson Hotels, LLC v. Laufer, 601 U.S. 1, 14 (2023)

(Thomas, J., concurring) (“Standing ensures that courts

decide disputes over violations of a person’s rights, not

a defendant’s compliance with the law in the abstract.”).

That objection does not create the “real controversy with

real impact on real persons” that Article III requires.

TransUnion, 594 U.S. at 424 (citation modified). Without

this “direct, specific, and concrete injury,” Petitioner

cannot invoke this Court’s jurisdiction to review the statecourt judgment. ASARCO, 490 U.S. at 623–24.

Petitioner also cannot succeed in asserting standing

deriving from his claim for nominal damages under

New Jersey antidiscrimination law. See Pet. 21. A state

statutory violation, by itself, does not confer standing

in a federal court. See Spokeo, Inc. v. Robins, 578 U.S.

330, 341 (2016) (“Article III standing requires a concrete

injury even in the context of a statutory violation.”). And

13

a request for nominal damages also does not “guarantee[ ]

entry to court.” Uzuegbunam v. Preczewski, 592 U.S. 279,

292 (2021). Were it otherwise, a party with no Article

III harm could get into federal court merely by seeking

nominal damages. Instead, this Court has made clear, a

plaintiff must “establish the other elements of standing,”

including “a particularized injury.” Id. at 293. Petitioner

has not and cannot do so.

Because Petitioner lacks standing, this Court has no

jurisdiction to reach the merits. At the very least, the

Court would need to confront this fact-bound issue on

a record without factual development, legal argument,

and judicial decision on Article III standing. Cf. Gratz

v. Bollinger, 539 U.S. 244, 261 (2003) (concluding that

challenger had standing based on “the finding of fact

entered by the District Court” that he intended to apply

in the absence of a racial discriminatory policy). It should

therefore deny the petition. See, e.g., Lab. Corp. of Am.

Hldgs. v. Davis, 605 U.S. 327 (2025) (Mem.) (dismissing

writ as improvidently granted because Court would

have needed to resolve standing issue before reaching

the merits); Nike, Inc. v. Kasky, 539 U.S. 654, 661 (2003)

(Stevens, J., concurring) (concurring in dismissal of writ

of certiorari because “neither party has standing to invoke

the jurisdiction of the federal courts”).

II. There Is No Split Among Lower Courts.

This Court grants certiorari to resolve genuine

conflicts of authority among the lower courts. Sup. Ct.

R. 10(a); see Box v. Planned Parenthood of Ind. & Ky.,

Inc., 587 U.S. 490, 493 (2019) (per curiam) (“We follow our

ordinary practice of denying petitions insofar as they raise

14

legal issues that have not been considered by additional

Courts of Appeals.”). But when “[o]nly a few Courts of

Appeals have weighed in on” a legal issue, certiorari

is inappropriate because the issue “would benefit from

further percolation in the lower courts prior to this Court’s

intervention.” Baker v. City of McKinney, 145 S. Ct. 11, 13

(2024) (Sotomayor, J., concurring). Petitioner identifies no

conflict warranting review, and the issues he raises are

in the early stages of consideration by the lower courts.

Neither case Petitioner cites as part of his “split”

conflicts with the decision below. In American Alliance

for Equal Rights v. Fearless Fund Management, LLC,

103 F.4th 765 (11th Cir. 2024), the Eleventh Circuit held

that a venture capital fund’s grant competition restricted

to Black women-owned businesses was non-expressive

conduct unprotected by the First Amendment. Id. at 779.

The court reached that holding by concluding, on the facts

before it, that the fund’s grant-making was not expressive

activity at all. Id. That is a threshold determination Dale

itself requires. 530 U.S. at 648. But the Appellate Division

here made the opposite determination on a different

record: the Association is an expressive organization with

a documented history of advocacy on diversity in the legal

profession, and its leadership-selection process is part of

how it speaks. Pet. App. 24a–26a. Two courts applying

the same doctrinal framework to different facts, and thus

reaching different conclusions, is not a conflict.

National Ass’n of Diversity Officers in Higher

Education v. Trump, 167 F.4th 86 (4th Cir. 2026), is

even further afield. The Fourth Circuit rejected a First

Amendment challenge to an executive order conditioning

federal funding on a certification of compliance with

15

antidiscrimination law, holding only that “the First

Amendment doesn’t confer a right to violate” such laws.

Id. at 98. It also emphasized that the case arose in the

“funding context,” where the government has “wide

latitude to set spending priorities.” Id. at 103. Nothing in

that decision addresses the question presented here—

whether a private, voluntary expressive association may

choose its own leaders consistent with the message it

speaks.6

The rest of Petitioner’s (and his amici’s) authorities do

not suffice either. Some are pending cases that have not

produced decisions, let alone conflicting ones. AAER v.

The Women, LLC, 3:25-cv-00441, ECF Nos. 37, 39 (E.D.

Tenn.) (cross-motions for summary judgment pending);

AAER v. Hispanic Scholarship Fund, 1:25-cv-04207,

ECF No. 19 (D.D.C.) (motion to dismiss pending). Others

settled before judgment and produced no rulings on the

merits. See Do No Harm v. AAUW, 1:24-cv-01782, ECF

No. 31 (D.D.C.); Do No Harm v. NAEMT, 3:24-cv-00011,

ECF No. 34 (D.D.C.); AAER v. Buckfire & Buckfire, P.C.,

2:25-cv-13617, ECF No. 12 (E.D. Mich.); Do No Harm

v. Health Affairs, 1:22-cv-02670, ECF No. 31 (D.D.C.);

AAER v. ABA, 1:25-cv-03890, ECF No. 50 (N.D. Ill.).

6. Likewise, the cases cited by amicus Students For Fair

Admissions (“SFFA”) create no conf lict. As SFFA admits,

“[t]hese case arise in diverse settings.” SFFA Amicus Br. 5. For

example, AAER v. The Women, LLC concerns the provision of

low-interest loans to black-owned businesses. And the rest of

the cases cited by SFFA concern the provision of scholarships

for certain categories of minority students. None of these cases

remotely concern selection of individuals for leadership positions

within an organization, or the First Amendment concerns with

interfering with such selection.

16

If anything, this body of pending litigation confirms

why review is premature. The intersection of Dale and

the Court’s recent antidiscrimination jurisprudence

is at the earliest stages of consideration in the lower

courts. The questions Petitioner asks this Court to

answer—under what circumstances a selection process

constitutes protected organizational expression, and

when antidiscrimination law impermissibly burdens

such expression—are precisely the kinds of questions

that benefit from sustained engagement across multiple

courts before this Court considers them. Box, 139 S. Ct.

at 1784 (Thomas, J., concurring) (“[F]urther percolation

may assist our review of this issue of first impression.”);

Maslenjak v. United States, 582 U.S. 335, 354 (2017)

(Gorsuch, J., concurring) (“[T]he experience of our

thoughtful colleagues on the district and circuit benches

could yield insights (or reveal pitfalls) we cannot muster

guided only by our own lights.”). This Court generally

waits for such a process to play out before resolving any

disagreements; here, the process has barely begun.

III. This Case Is An Exceptionally Poor Vehicle For

Resolving The Question Presented.

To whatever extent the Court will need to clarify the

intersection between the Dale line of expressive association

cases and its more recent antidiscrimination decisions, this

is not an appropriate case in which to do so. The decision

below is unpublished and nonprecedential. The program it

addressed no longer exists. The Association is voluntary,

unlike mandatory bar associations in other states whose

conduct the question would ordinarily reach. And reversal

on the federal question would not resolve the case, because

the state appellate courts never determined whether the

Association violated state law.

17

First, the decision below is an unpublished,

nonprecedential opinion of a state intermediate appellate

court. Under New Jersey court rules, it “shall [not]

constitute precedent or be binding upon any court,” and

may not even be cited except as required for res judicata

or related doctrines. N.J. Ct. R. 1:36-3; see also Pet. App.

2a. And the New Jersey Supreme Court’s decision not to

hear the case “does not constitute approval of the opinion

or judgment below.” State v. Hodge, 523 A.2d 163 (N.J.

1986) (Mem.); see also W. Point Island Civic Ass’n v. Dover

Twp. Comm., 255 A.2d 237, 239 (N.J. 1969). This Court

ordinarily declines to grant certiorari in that posture.

Huber v. N.J. Dep’t of Env’t Prot., 562 U.S. 1302, 1302

(2011) (Alito, J., concurring in denial of certiorari) (“denial

of certiorari is appropriate” where review is sought “of

a decision by a state intermediate appellate court”); see

Stephen Shapiro et al., Supreme Court Practice 180 n.50

(10th ed. 2013). Petitioner claims that the unpublished

disposition and denial of discretionary review reflect a

“tactic” to “shield suspect reasoning” from this Court’s

review. Pet. 4, 21. Not only does the record lack any

support for that charge, but if the courts below had wanted

to insulate the case from review here, they could have

done so straightforwardly by resting on the state-law

ground they left open. Michigan v. Long, 463 U.S. 1032,

1040 (1983).

Second, the legality of the Association’s current

selection process was not litigated below. The petition

asserts that the Association “reser ves leadership

positions for members of specific minority groups.” Pet.

4. It does not, and the allegation is based upon a policy

that was in place when this case was filed over four

years ago. Now, of the forty-nine Board seats, eight are

18

at-large seats available to all members of diversity bar

associations designated annually by the Board. See supra

n.2. Recognized diversity bar associations are open to

all comers—a white attorney may join the Asian Pacific

American Lawyers Association of New Jersey, a man

may join the New Jersey Women Lawyers Association,

and so on. Every at-large seat could, in theory, be filled

by a white man. The current program does not engage in

any form of racial discrimination, and the record does not

contain the factual development that would be necessary to

challenge the policy. Petitioner’s argument that his claim

for nominal damages “prevents any possible mootness,”

Pet. 21, thus misses the point. Even if the case is not

formally moot, whatever rule this Court might announce

about programs that reserve seats for specific groups

would have no application to the program now in effect.

This Court has dismissed writs in just such circumstances,

where changed program design has reduced the dispute

to “only a bare remnant of the original controversy.”

Taggart v. Weinacker’s, Inc., 397 U.S. 223, 226 (1970); see

Ticor Title Ins. Co. v. Brown, 511 U.S. 117, 122 (1994) (per

curiam); Triangle Improvement Council v. Ritchie, 402

U.S. 497, 502 (1971) (Harlan, J., concurring).

Third, although Petitioner’s Question Presented relies

on Respondent’s status as “[a] bar association,” Pet. i.,

the Association is unlike many other bar associations.

As were the Boy Scouts in Dale, the Association is a

private, voluntary organization. Dale, 530 U.S. at 644.

New Jersey lawyers are not required to join—only about

one in six do, Pet. 5—and the Association performs no

licensing, disciplinary, or other governmental function.

That distinguishes it from the bars of twelve of the

eighteen States that have joined West Virginia’s amicus

19

brief in support of certiorari, see States’ Amicus Br. 23–24,

and a substantial majority nationwide, which license

attorneys, discipline them, and compel their membership.7

Whatever rule this Court might one day announce for bar

associations more broadly, the Association is not typical of

them, again making this case a poor vehicle for resolving

the Question Presented.

Fourth, and fundamentally, reversal on the federal

question would not resolve this litigation. The Association

argued at every stage of the proceedings below that its

program did not violate the New Jersey Law Against

Discrimination. The Appellate Division skipped over that

argument and held only that, if it did, the First Amendment

would shield the Association from liability. Pet. App. 31a.

That order of decision is the inverse of the ordinary one:

courts usually resolve cases on statutory grounds before

reaching constitutional ones. Clinton v. Jones, 520 U.S.

681, 690 (1997); Spector Motor Serv., Inc. v. McLaughlin,

323 U.S. 101, 105 (1944). The consequence here is that

the state-law question remains open. Accordingly, if this

Court reversed, the Appellate Division could conclude

on remand that the program, particularly now that it

has changed, does not violate state law—an adequate

and independent state ground that this Court could not

then review. Any merits ruling from this Court would

thus “amount to nothing more than an advisory opinion.”

7. See Am. Bar Ass’n, Bars By Type, https://www.americanbar.

o r g /g r o up s / b a r - l e a d e r s h i p / r e s o u r c e s / r e s o u r c e p a g e s /

barworldbasics/barsbytype/ (last visited May 20, 2026) (listing

Alabama, Georgia, Idaho, Louisiana, Mississippi, Missouri,

Montana, North Dakota, Oklahoma, South Carolina, South

Dakota, Texas, and West Virginia as among the 35 bar associations

that require licensed attorneys to be members).

20

Long, 463 U.S. at 1042 (quoting Herb v. Pitcairn, 324

U.S. 117, 125 (1945)). That this matter may be resolved

under state law counsels against granting the petition.

See Blankenship v. NBCUniversal, LLC, 144 S. Ct. 5, 6

(2023) (Thomas, J., concurring) (concluding that certiorari

was not warranted because the petitioner’s claims were

“independently subject” to a state court defense).

IV. The Decision Below Is Correct.

The standing and vehicle problems described above

are reason enough to deny the petition. But on the

merits as well, the Appellate Division’s decision is a

straightforward and correct application of this Court’s

expressive-association jurisprudence.

This Court “has ‘long understood’ ” that the First

Amendment encompasses a “ ‘right to associate with

others’ ” alongside its enumerated protections. First

Choice Women’s Res. Ctrs. v. Davenport, 608 U.S. ___,

___ (2026) (slip op. at 6) (quoting Ams. for Prosperity

Found. v. Bonta, 594 U.S. 595, 606 (2021)). Associational

freedom is critical because “[t]he right to speak is often

exercised most effectively by combining one’s voice

with the voices of others.” Rumsfeld v. F. for Acad. &

Institutional Rts., Inc., 547 U.S. 47, 68 (2006). And the

First Amendment protects such expression “regardless

of whether the government considers [the] speech sensible

and well intentioned or deeply ‘misguided.’ ” 303 Creative

LLC v. Elenis, 600 U.S. 570, 586 (2023) (quoting Hurley v.

Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515

U.S. 557, 574 (1995)).

This Court in Dale applied those principles to a

private group’s membership and leadership decisions. An

21

organization that “engage[s] in some form of expression,

whether it be public or private,” is protected from state

action that would “significantly affect [its] ability to

advocate public or private viewpoints.” 530 U.S. at 648,

650. Thus, compliance with state antidiscrimination law

that compels association with members or leaders whose

presence “would . . . materially interfere with the ideas

that the organization s[eeks] to express” violates the First

Amendment. Id. at 657.

The Appellate Division applied that framework to the

specific facts here. The court found that the Association

engages in “many forms of public expression and advocacy

on matters of public concern, including the importance of

diversity within the Association, in the legal community,

and in continuing legal education.” Pet. App. 24a (citing

Roberts, 468 U.S. at 626–27). Its commitment to “diversity

in the legal profession” is longstanding, public, and welldocumented—from its standing Diversity Committee to

its dedicated executive staff position to its CLE policy.

Pet. App. 5a. The court then found that requiring the

Association to abandon its diversity-conscious leadershipselection process would force it “to send the message ‘that

it no longer cares, or cares as much, about diversity in

general or about assuring access to leadership positions

for underrepresented groups in particular.’” Pet. App.

27a. As in Dale, “[t]he state interest” in applying its

antidiscrimination statute “do[es] not justify such a

severe intrusion on [the Association’s] rights to freedom

of expressive association.” Dale, 530 U.S. at 659.

Petitioner does not ask this Court to overturn Dale.

He instead argues that Dale does not apply, on two

grounds. Neither one succeeds.

22

First, Petitioner argues that ending the program

would not burden the Association’s expression because

it “remains ‘free to associate to voice’ its support for

diversity and inclusion” and “choos[e] leaders who support

that goal through non-discriminatory elections.” Pet.

14 (quoting FAIR, 547 U.S. at 69). Roberts, he argues,

controls: the Court explained that forcing the Jaycees

to admit women “would not substantially infringe the

Jaycee’s expression because the organization could still

select members based on viewpoint.” Id. 15; see also

States’ Amicus Br. 9–10; Manhattan Inst. Amicus Br. 8;

Am. First Legal Amicus Br. 15. But Roberts turned on

the lack of evidence that admitting women would impair

the Jaycees’ expression—there was “no basis in the record

for concluding” that admitting women would “impede the

organization’s ability to engage in . . . protected activities

or to disseminate its preferred views.” 468 U.S. at 627;

see also Bd. of Dirs. of Rotary Int’l v. Rotary Club of

Duarte, 481 U.S. 537, 548 (1987) (“[T]he evidence fails to

demonstrate that admitting women to Rotary Clubs will

affect in any significant way the existing members’ ability

to carry out their various purposes.”). Dale distinguished

Roberts and Duarte on that basis, explaining that those

rulings did not govern a case in which the record showed

an actual burden on expression. 530 U.S. at 656.

This case is like Dale, and unlike Roberts and Duarte.

Here, the Appellate Division had before it specific

evidence of how the Association’s message of supporting

diversity would be affected if its leadership-selection

process were invalidated and concluded—applying Dale’s

standard of “deference to an association’s view of what

would impair its expression,” 530 U.S. at 653—that the

burden was real. See Pet. App. 26a–27a. Petitioner’s

23

reliance on Roberts does not undermine that fact-bound

conclusion. 8

Second, Petitioner argues that his suit targets the

Association’s conduct, not its speech. Pet. 10–11. He points

to Runyon v. McCrary, 427 U.S. 160 (1976), and Hishon

v. King & Spalding, 467 U.S. 69 (1984), as foreclosing any

First Amendment defense to his claims. See also States’

Amicus Br. 8–9; Manhattan Inst. Amicus Br. 6–7; SFFA

Amicus Br. 15–18; Am. First Legal Amicus Br. 14–15.

As a threshold matter, this argument was “not pressed

or passed upon” below, and the Court should decline to

consider it. Illinois v. Gates, 462 U.S. 213, 220–22 (1983).

Petitioner’s criticism of the Appellate Division for not

citing Runyon, Pet. 13, is a problem of his own making—

he never cited Runyon in his appellate (or trial court)

briefing.

In any event, though, this argument was squarely

considered and rejected in Dale. The Dale dissent

invoked Runyon and Hishon for the proposition that

“the right to associate in the selection of members” could

not “prevail in the face of a State’s antidiscrimination

8. Petitioner claims that the theory articulated below lacks

a limiting principle that would prevent its application in other,

inappropriate circumstances. Pet. 20; see also States’ Amicus Br.

16–20; Manhattan Inst. Amicus Br. 5; SFFA Amicus Br. 21–23;

Am. First Legal Amicus Br. 19. But as Dale explains, each case

turns on its facts: courts must consider whether exclusion “would

significantly burden” the group’s expression. 530 U.S. at 653.

The Appellate Division’s fact-driven opinion faithfully undertook

this analysis. Whether other organizations can prevail on similar

grounds is subject to individualized judicial review of the factual

record in the case.

24

law.” Dale, 530 U.S. at 679–80 (Stevens, J., dissenting).

But the majority disagreed, holding that requiring the

Boy Scouts to retain “an assistant scoutmaster” whose

presence would “ force the organization to send a message

. . . that the Boy Scouts accepts homosexual conduct as

a legitimate form of behavior” was an unconstitutional

interference with expression, not a valid regulation of

conduct. Id. at 653 (majority opinion). 303 Creative, on

which the petition heavily relies, reinforced the point.

There, again, the dissent cited Runyon to argue that

Colorado’s nondiscrimination law was a valid regulation

of conduct instead of speech. 600 U.S. at 629 (Sotomayor,

J., dissenting). The majority countered that “context

matters” and “very different considerations come into

play when a law is used to force individuals to toe the

government’s preferred line when speaking (or associating

to express themselves) on matters of significance.” 600

U.S. at 600 n.6 (citing Dale, 530 U.S. at 648–53).

Runyon and Hishon permit state action regulating

non-expressive conduct, such as a school’s enrollment

decisions or a law firm’s partnership decisions. Cf. Fearless

Fund, 103 F.4th at 778–79 (permitting the same). Dale,

on the other hand, prohibits state action interfering

with an expressive organization’s communication of its

message. Because the Association’s rules for selection of

its leadership are part of its expression, they are protected

by Dale.9

9. The trial court suggested a third distinction—between

forced inclusion (the question in Dale) and forced exclusion (the

question, on its view, here). The Appellate Division correctly

rejected that framing, and Petitioner does not press it on review.

Dale’s holding does not turn on whether the antidiscrimination

claim is characterized as compelled acceptance of an unwanted

25

At bottom, Petitioner’s argument is that the appellate

court made an “error” when it ruled that holding the

Association’s leadership selection process to be unlawful

would impair its expression. Pet. 14. But this is “not a

court of error correction,” Martin v. Blessing, 571 U.S.

1040 (2013) (statement of Alito, J., respecting the denial

of certiorari), and certiorari “is rarely granted when the

asserted error consists of erroneous factual findings or

the misapplication of a properly stated rule of law,” Sup.

Ct. R. 10.

The Appellate Division’s decision rests on settled

doctrine as applied to a developed record, and it reaches

a fact-bound conclusion. Further review is not warranted.

member or compelled abandonment of selection criteria that

produce the desired composition. The injury to expression is the

same. As Roberts put it, “[f]reedom of association . . . plainly

presupposes a freedom not to associate.” 468 U.S. at 623.

26

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

Lawrence S. Lustberg

Counsel of Record

Michael R. Noveck

A ndrew J. Marino

Madhulika Murali

FBT Gibbons LLP

One Gateway Center

Newark, NJ 07102

(973) 596-4500

llustberg@fbtgibbons.com

Attorneys for Respondent