Big Law Skews Liberal in Amicus Briefs, New Study Finds

As the 2024 presidential election gets underway this week with the Iowa caucuses, now is a good time to ask: Does Big Law lean liberal?

Everyone has opinions and anecdotes, but there’s actually empirical research on this question. A 2015 paper by experts from Harvard, Stanford, and the University of Chicago analyzed a vast dataset of individual attorneys’ federal campaign contributions and found that lawyers overall are “liberal-leaning.” And they found that lawyers at the 100 largest firms, aka Big Law, are more liberal as a group than lawyers who work at smaller firms.

In a new paper published today in the Harvard Journal of Law and Public Policy, University of Notre Dame law professor Derek Muller takes a new and interesting approach to identifying the ideological leanings of large law firms. He analyzed all the US Supreme Court amicus briefs filed by Am Law 100 firms on behalf of what he deemed “likely pro bono” clients, over a four-year period—from the 2018-2019 term through the 2021-2022 term—to see whether the briefs took a liberal or conservative position.

Why the focus on pro bono cases? “What I like about pro bono cases is that the firm is volunteering itself and its lawyers, putting its name and prestige out there, and lending its assistance to public-facing causes,” Muller told me in an interview. “They offer an interesting window into ideology that maybe paid cases don’t.”

And looking at pro bono amicus briefs has some advantages over lawyers’ campaign contributions as a window into firm ideology. Lawyers make donations in their individual capacities, and what individual attorneys are doing isn’t what the firm is doing.

Pro bono cases, in contrast, are undertaken by firms in their institutional capacities, and they typically go through multiple levels of approval. These cases therefore are a useful guide to a firm’s priorities and commitments as an organization.

Based on his review of pro bono amicus briefs, Muller learned that of the 851 briefs in total, 64% supported the liberal position, 31% supported the conservative position, and 5% supported neither side.

“Like the partisan campaign contributions, this suggests there is a leftward lean in Big Law,” Muller said. “Whether or not that two-to-one split is overwhelming can be argued.”

Muller then divided the cases up into three cohorts based on significance or salience. The highest-salience cases drew 60 or more amicus briefs each, and there were only five: Dobbs v. Jackson Women’s Health Organization (131 briefs), Bostock v. Clayton County and Harris Funeral Homes v. EEOC (93), New York State Rifle & Pistol Association v. Bruen (81), Fulton v. City of Philadelphia (80), and June Medical Services v. Russo (69).

These highest-salience cases address the most controversial issues the Supreme Court has confronted: abortion (Dobbs and June Medical), LGBTQ rights (Bostock and Fulton), and the Second Amendment (Bruen). And in these hot-button cases, the liberal skew is indisputably overwhelming: 95% of the Big Law briefs supported the liberal position, and only 5% supported the conservative position.

Muller’s paper also features interesting firm-specific insights, including rankings of the firms that filed the most liberal and conservative amicus briefs. Gibson, Dunn & Crutcher topped both lists, which says more about its active Supreme Court and amicus practices than about its ideology. Of the Gibson Dunn briefs, 64% supported the liberal side, almost exactly the figure for Big Law as a whole.

Or take Jones Day, regarded by many as a conservative firm because it previously represented Donald Trump and sent many of its lawyers into his administration. A majority of its briefs, 52%, came in on the liberal side—but this basically even split makes Jones Day one of the most conservative firms in Muller’s sample.

Why should we care about this data? Practically speaking, it can help law students and lawyers choose between firms. Conservatives might be more comfortable at Jones Day, while liberals might be happier at, say, Orrick—which filed 16 liberal briefs and one conservative brief during the four-year period in question.

As someone who has supported ideological diversity in Big Law and urged firms to engage in conservative as well as liberal pro bono work, I also think firms can use this data as an opportunity for introspection, asking: How liberal or conservative are we, compared to our peer firms? What explains our ideological orientation? And is it a good thing, for our firm as a workplace or for purposes of business development, for us to be as liberal or conservative as we are?

Muller’s paper is interesting and important, a useful contribution to the limited literature assessing the political inclinations of Big Law. But it’s also fair to say that pro bono work at large law firms is dwarfed by their work for paid clients—and that work, generally aimed at protecting the interests of wealthy and powerful corporations and individuals, is “conservative,” i.e., aimed at protecting the status quo.

Most large law firms lean blue; some firms are more red. But at the end of the day, Big Law’s favorite color is green.

Updated with Muller study link added.

David Lat, a lawyer turned writer, publishes Original Jurisdiction. He founded Above the Law and Underneath Their Robes, and is author of the novel “Supreme Ambitions.” Read More Exclusive Jurisdiction.