Big Law’s Troubling Sway at the Supreme Court

The U.S. Supreme Court, in Washington, on May 12, 2023. Madalina Vasiliu/The Epoch Times

Commentary

There’s a big-money influence operation going on behind the scenes at the Supreme Court—just not the one you’ve heard about.

Motivated partisans keen to discredit the Supreme Court’s conservative justices pound the table and rail about a “dark money” conspiracy that uses gifts and front groups to reshape the law to the benefit of big business and right-wing billionaires.

As others have pointed out, this account always has been overly simplistic, but it certainly suits the narrative of those who wish to delegitimize the high court to advance their liberal agenda.

Rarely mentioned, though, is the major influence that large law firms have on which cases the Supreme Court decides to hear, or any discussion about which side those firms support in the briefs they file before the high court.

A recently published study from professor Derek Muller of Notre Dame Law School finds that the 100 largest and highest-grossing law firms in the United States overwhelmingly support progressive causes via amicus curiae (“friend of the court”) briefs that they file with the court. The law firms are ranked by American Lawyer magazine and often are referred to in legal circles as Big Law or the AmLaw 100.

The talented lawyers employed by these firms prepared these briefs at no cost (or, as lawyers say, on a pro bono basis), effectively donating thousands upon thousands of nonbillable lawyer-hours (from lawyers who often charge well in excess of $1,000 per hour) and thousands of dollars of additional firm resources to support these causes.

One Big Law firm—Sidley Austin—crowed that its lawyers provided more than 154,000 hours of pro bono services in 2022 alone, working “closely with many civil rights advocacy organizations across the United States.”

Many other firms also partner with liberal nonprofits, forming a veritable army of legal activists. And that’s in addition to the financial contributions made by lawyers at these firms to Democratic candidates and their affiliates, which swamp the contributions they make to Republican candidates and their affiliates.

Although many law firms may be more “flexible” when it comes to the ideological leanings of paying clients, all of them can and do make conscious policy choices about which clients and causes they will represent on a pro bono basis. Many of the matters they choose are a far cry from the traditional pro bono projects of representing indigent individuals attempting to navigate the civil justice system; the law firms prefer to work on “impact” cases that advance “social justice” causes.

And although the study’s findings are not exactly startling news to Supreme Court watchers, they help capture and define the extent of the influence that big, liberal law firms wield even before a conservative-leaning court.

The leftward tilt of the AmLaw 100 has been well-established. Lawyers who served in senior positions in the George W. Bush and Donald Trump administrations struggled to find (or return to) jobs at Big Law, but lawyers who served in similar positions in the Barack Obama administration were welcomed with open arms and large bonuses.

On two separate occasions, former U.S. Solicitor General Paul Clement, a highly respected advocate, was given the choice by AmLaw 100 law firms (Kirkland & Ellis and King & Spalding) to abandon a client that was advancing a conservative cause or to leave his firm. On both occasions, Mr. Clement stood on principle and declined to abandon his client (which came as no surprise to anybody who knows him).

Robin Keller, a retired equity partner who was still servicing clients at Hogan Lovells, was unceremoniously ostracized by the law firm after she made comments supporting the Supreme Court’s decision on abortion in Dobbs v. Jackson Women’s Health Organization during a “safe space” conference call for women at the firm, to which she had been invited. It has been reported that the same thing happened to another pro-life female attorney at another major law firm.

Lawyers at AmLaw 100 firms have no problem doing pro bono work supporting same-sex couples, challenging voter integrity laws, or representing people on death row or who are Guantanamo Bay detainees.

But if you are a young associate at Big Law and want to provide pro bono representation to a pro-life organization or a religious adherent who objects to the government’s trying to force him to violate a tenet of his faith? Not a chance!

Given all this, it is not surprising that Mr. Muller’s study found that nearly two-thirds (64 percent) of AmLaw 100 pro bono amicus briefs filed with the high court supported the liberal position in a given case. That’s more than twice the number of amicus briefs filed in support of the conservative position (31 percent), with the rest supporting neither side.

Moreover, the differential was considerably higher in ideologically fraught cases involving abortion, guns, or gay rights. In these “high salience” cases, which attracted the largest number of pro bono amicus briefs, fully 95 percent of those filed by Big Law supported the liberal position. Of the 50 AmLaw 100 firms that filed amicus briefs in these cases, 46 did so in support of the liberal position.

What many don’t realize is that relatively few lawyers working at the elite law firms covered by Mr. Muller’s research dominate Supreme Court legal practice. These lawyers and their firms serve an important gatekeeping function, exerting a great deal of influence over which cases the high court will review.

A 2020 article on the “elitification” of Supreme Court legal practice found that between 2013 and 2019, only nine lawyers argued more than one-third of merits cases that the Supreme Court decided. And just 20 lawyers appeared in half of those cases.

A small group of 44 private practitioners appeared in almost 70 percent of the cases argued before the Supreme Court during that time. Lawyers from only nine law firms argued almost half these cases, and lawyers from the top 26 law firms (plus three law school clinics) argued 83 percent of these cases.

For understandable reasons, this small cadre of highly skilled, dedicated appellate practitioners from AmLaw 100 firms—many of whom clerked for one of the nine Supreme Court justices—have considerable credibility. This is because the justices prefer to hear cases that they know will be thoroughly briefed and well presented by the advocates involved.

Although conservatives usually are able to find excellent Supreme Court advocates to represent them (often from among dedicated attorneys who work at public interest law firms), the movement simply cannot match the resources, personnel, and expertise that these high-powered law firms can marshal.

Liberals and the mainstream media seem fixated on petitions or amicus briefs filed by small conservative nonprofits, but they adopt a “move along, nothing to see here” attitude about the giant corporate law firms that dominate Supreme Court practice and are decidedly aligned with their agenda.

This asymmetry in power is even more pronounced when one considers the fact that pro bono amicus briefs in the Supreme Court represent just a fraction of the free legal services provided by large firms. And, not surprisingly, these services also skew decidedly leftward.

Major law firms are hiring “100 percent pro bono professionals” to handle so-called ESG (environmental, social, and governance) cases and racial justice cases, according to the Pro Bono Institute.

Many firms have committed personnel and resources to assist immigrants who cross our southern border unlawfully. Hundreds of lawyers at Kirkland & Ellis, Covington, Sidley Austin, WilmerHale, and other AmLaw 100 firms provide asylum-seekers and other illegal aliens crossing our southern border with pro bono representation.

I could go on, but you get the point.

None of this is to diminish or belittle the extraordinary pool of talented attorneys who work for groups that support conservative causes. It is merely to acknowledge what those attorneys would tell you themselves: They just wish they were half as powerful as their opponents make them out to be.

Reprinted by permission from The Daily Signal, a publication of The Heritage Foundation

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.