Is BigLaw mostly liberal? SCOTUS amicus briefs indicate answer is yes, especially in significant cases
Out of 851 briefs filed for likely pro bono clients in merits cases, 64% supported the liberal position. Thirty-one percent supported a conservative position, while 5% didn’t take a side. Image from Shutterstock.
Large law firms are showing their ideological leanings in U.S. Supreme Court amicus briefs filed on behalf of likely pro bono clients, according to a study by a law professor at the University of Notre Dame.
The study, published in the Harvard Journal of Law & Public Policy, looked at amicus briefs filed by the nation’s top 100 grossing firms over a four-year period beginning with the 2018-2019 term.
Out of 851 briefs filed for likely pro bono clients in merits cases, 64% supported the liberal position, Above the Law founder David Lat reports in an Exclusive Jurisdiction column for Bloomberg Law. Thirty-one percent supported a conservative position, while 5% didn’t take a side.
The split is even more pronounced in what Notre Dame Law School professor Derek Muller designated as the five cases of highest salience, based on the number of amicus briefs that they garnered. Two of the cases involved abortion, two involved LGBTQ rights, and one involved the Second Amendment. In those cases, 95% of BigLaw briefs supported the liberal position.
Muller also listed the most liberal and most conservative firms, based on the percentage of liberal positions taken in amicus briefs over the four-year period, for firms that have filed at least 10 briefs.
The three most liberal firms were:
Paul, Weiss, Rifkind, Wharton & Garrison, which was 100% liberal based on its filing of 13 liberal briefs and 0 conservative briefs.
Orrick, Herrington & Sutcliffe, which was 94% liberal based on its filing of 16 liberal briefs and one conservative brief.
O’Melveny & Myers, which was 89% liberal based on its filing of 24 liberal briefs and three conservative briefs.
The most conservative firms were:
Troutman Pepper Hamilton Sanders, which was 27% liberal based on its filing of three liberal briefs and eight conservative briefs.
Baker Botts, which was 38% liberal based on its filing of six liberal briefs and 10 conservative briefs.
Mayer Brown, which was 44% liberal based on its filing of 14 liberal briefs and 18 conservative briefs.
Lat noted that many people regard Jones Day as a conservative firm because of its previous representation of former President Donald Trump. But Muller found that 52% of its briefs were liberal, which nonetheless put it on the bottom of the list of firms that had a greater percentage of liberal than conservative briefs.
Muller determined that a brief was likely filed on a pro bono basis when clients were nonprofit organizations, current or former government officials, professors and scholars, professionals such as scientific experts, and survivors or victims. Cases were coded as liberal or conservative based on a Supreme Court database at Washington University. Then Muller looked at the amicus briefs to determine whether they supported the liberal or conservative side.
Muller said he looked at pro bono cases because large firms must approve choices to file them, which can reflect the priorities of firms, as well as the attorneys who file the briefs. He acknowledged that the numbers could reflect other factors than ideology, such as a conflicts check that rules out an amicus brief or a decision by a committee that doesn’t reflect the overall firm’s preferences.