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