Commentary by Lawrence Ebner, ALF Executive Vice President & General Counsel
As a Big Law alumnus who writes and reads a lot of amicus briefs, I’m neither impressed nor surprised by a newly published statistical analysis, Ideological Leanings in Likely Pro Bono BigLaw Amicus Briefs in the United States Supreme Court, Harv. J.L. & Pub. Pol’y Per Curiam (Winter 2024). The analysis, conducted by Prof. Derek T. Muller of Notre Dame Law School, is based on Supreme Court merits-stage amicus briefs filed by Am Law100 law firms on behalf of “likely pro bono clients” during the October 2018 through October 2021 Terms. Prof. Muller concludes that of the 851 amicus briefs in this category (out of 3280 merits-stage amicus briefs filed during this period), two-thirds “aligned with the liberal position” and one-third “with the conservative position.” But this does not establish that any particular Big Law firm is more ideologically liberal than conservative.
The article explains that the analysis has many limitations as a measure of Big Law firms’ supposed ideological preferences. For example, neither amicus briefs on behalf of paying clients, nor those filed at the certiorari petition stage, were examined. More fundamentally, the analysis found that many Big Law firms’ amicus filings do not reflect “a coherent and consistent ideological preference . . . lean[ing] overwhelmingly in one direction or another.” Instead, for many individual firms, their pro bono amicus filings, depending on the case, straddled the ideological spectrum. The analysis recognizes that “[e]ven claiming that ‘the firm’ has a position can be misleading, as it may well be a decision of the committee that clears such requests, and it may well reflect the preferences of the committee more than the firm as a whole.” This is especially true in Big Law firms.
As a practical matter, most Big Law firms, with hundreds or thousands of attorneys and a large, diverse, often global clientele, cannot afford to lean heavily in only one ideological direction. And the decision on whether to file a particular pro bono amicus brief (often by a pro bono committee) typically is driven more by business, professional development, and other considerations than ideology, and even if ideological, sometimes can be within the province of a single, relatively autonomous, senior partner.
In my experience, the most patently “ideological” Supreme Court amicus briefs are authored and filed by narrowly focused, nonprofit advocacy groups. It would be wrong to assume, as Prof. Muller’s article appears to do, that such briefs, although well researched and written by skilled attorneys, somehow are less influential because they lack “the signaling mechanism of an elite law firm’s name on a brief.”
