opinion
By Ryan Bangert for RealClearPolitics
In a rigorous and important study that should surprise no one, University of Notre Dame law professor Derek Mueller found that among more than 3,200 amicus briefs submitted to the U.S. Supreme Court in cases filed and decided between 2018 and 2022 by lawyers at the nation's largest law firms 64% favor liberal causes.
The clear tendency of the American legal elite towards the political left is a well-known phenomenon. As someone who has practiced “big law” for more than a decade, I and many of my colleagues have come to take this tendency for granted. Studies have since shown that the American legal profession generally leans toward political liberalism.
What I found particularly notable in Mueller’s study, however, is the revelation that elite companies have taken uniformly forward-left positions in five cases since 2018, which Mueller described as having “significant salience.” These are cases in which a very large number of amicus curiae briefs have been filed—at least 60 in each case—in reference to their real or perceived importance. These cases, as Mueller put it, “touch some of the most divisive areas of political debate” in America today.
These include notable cases Dobbs v. Women's Health Jacksonwhich flipped Roe v. Wade; Bostock v. Clayton County (Unified with Harris Funeral Homes v. Equal Employment Opportunity Commission), which found that employment actions taken solely because of sexual orientation or gender identity violate Title VII's prohibition on “sex” discrimination; And Fulton vs. City of Philadelphia, which included a challenge to a city law requiring the Catholic foster care and adoption service to violate its beliefs by placing children with unmarried and same-sex couples. There is also another case of miscarriage, June Medical Services v. RussoAnd the issue of the Second Amendment, New York State Rifle & Pistol Association v. Bruin.
Abortion, religious freedom, gender identity, Second Amendment rights – that's it theHot social issues within American society. In the five high-stakes cases Mueller studied, in which lawyers for major corporations filed 98 amicus briefs, elite firms sided with the liberal side by a surprising percentage. 94.9% Of time.
This data point provides a unique and disturbing window into the elite class of American culture. As Mueller notes in his study, large law firms often file amicus briefs on cultural issues with the Supreme Court for the public interest – i.e. free – basis. These are the selected projects. They more closely reflect the personal values held by drafters than, for example, paid briefs on ordinary commercial cases.
Mueller's study indicates that many elite members of the legal profession hold views that are considered objectionable to nearly half of Americans. They seem to agree with another lawyer, President Barack Obama, who once said of rural voters upset by rapid economic changes that “they cling to guns or religion, or they hate people who don't look like them.”
As with the former president, these elite corporate denizens often appear in positions of great influence, including the general counsel suites of Fortune 500 companies, on the bench in state and federal courtrooms, and in key positions in presidential administrations. Moreover, they, like the former president, are products of elite law schools and often return to those schools in various capacities as professors.
But more important than the disconnect between many elite lawyers and the vast numbers of conservative Americans is the willingness of these lawyers to use the machinery of the law to enforce their views. Some might object that this accusation is unfair—don't all lawyers who bring sensitive cases before the Supreme Court share the goal of imposing their views on the nation? Doesn't this apply to me and my employer, Alliance Defending Freedom, which regularly argues before the Supreme Court, including in four of Mueller's five high-profile cases?
In a word, no.
Take, for example, Mueller's high-profile cases. in BostockThe liberal position successfully sought to use the power of the federal government to force private employers to make certain employment decisions. in FultonThe liberal position sought to use the power of local government to force a religious organization to violate its deeply held beliefs. On the issue of gun rights, the liberal position sought to use government power to restrict gun owners' rights under the Second Amendment. even in DobbsThe liberal position was in favor of governmental coercion, that is, using the power of the court to prevent elected officials from passing laws to regulate abortion in accordance with the will of voters. In each case, the conservative position called for greater autonomy and freedom from government excesses and control.
So, the results of Mueller's study were not surprising and very illuminating. Ours is a society in which large segments of elites increasingly operate as a monoculture divorced from, and sometimes disparaging, the deeply held religious, cultural, and social beliefs of many Americans. They are increasingly willing to use state power to impose those beliefs on dissenters.
But Mueller's study also serves to illustrate the power of ideas, even when they conflict with the near-consensus views of those elites. In three of Mueller's five high-profile cases, the “conservative” position prevailed despite overwhelming opposition from Big Law, while a fourth position prevailed. Jun Medicalwas effectively superseded by Dobbs. And in this truth lies the hopeful message of the good professor's study—that truth, if well told and firmly defended, can still endure even against the longest odds.
Ryan Bangert is Senior Vice President of Strategic Initiatives and Special Advisor to the President of the Alliance Defending Freedom (@ADFLegal).
Reprinted with permission from RealClearWire.
