According to the study, the average American lawyer’s ideology is just slightly to the right of New York’s Democratic governor Andrew Cuomo, and far to the left of even a liberal Republican such as former Maine Senator Olympia Snowe. And the larger the law firm, the more liberal (on average) are the lawyers who work there.
Why? It’s not a result of more schooling. Lawyers are far more liberal than other highly-educated professionals, including accountants, bankers, and doctors. (Doctors, who have the most education, are on average the most conservative of all professionals). Could there be a geographic explanation? The largest American law firms typically are based in blue states, with Texas-based firms a conservative exception to the liberal rule.
Whatever the cause, it is the potential effect that is more concerning. Does all of this lawyerly liberalism hurt the ability of conservative causes to obtain high-quality representation? Are conservative causes being shut out from the considerable resources that the largest firms can bring to bear on a pro bono (free of charge) basis?
The answer appears to be a qualified “no,” and I’ll use Boston’s largest law firms as an example.
Boston’s largest firms are among the most liberal in the country. According to the study, these firms resemble Bill Clinton in their attorneys’ average political leanings.
Nonetheless, at least some of these firms have a solid tradition of allowing their lawyers to represent, on a pro bono basis, causes across the ideological spectrum, including “conservative” causes. In recent years, in addition to cases brought on behalf of an array of “liberal” causes, lawyers at Boston’s large law firms have represented: pro-life counselors challenging a buffer zone outside Massachusetts abortion clinics; a religious organization challenging the Obamacare contraception mandate; and Second Amendment activists challenging bans on the private ownership of handguns. Lawyers at three large Boston firms currently are joining forces to challenge the Massachusetts cap on charter school enrollment, to the consternation of the teachers’ union.
To be sure, in each of the cases I just mentioned (other than the nascent charter school challenge), lawyers from other Boston firms sponsored briefs on the “liberal” side of the issue. On many legal issues dividing left from right, large firms across the country file briefs in roughly equal numbers on both sides. And that, of course, is wonderful. Judges are more likely to reach the correct outcome when well-qualified advocates present both sides of the issue in their best light.
There are exceptions, however, to the willingness of large firms to file briefs supporting both sides of an issue. The recent same-sex marriage litigation is the prime example: while the Justices divided their votes five to four, not a single large firm, from anywhere in the country, sponsored a brief at the Supreme Court arguing that the Constitution does not guaranty a right to same-sex marriage.
Affirmative action is another example. When the Supreme Court last took up the issue in 2012, large firms filed only a trickle of briefs supporting the white college applicant; they submitted a veritable flood of briefs supporting the college’s defense of its affirmative action plan. This disparity was no reflection of the case’s underlying merits: The Supreme Court, including two liberal Justices, overwhelmingly sided with the white applicant.
Two hundred and forty-five years ago next month, John Adams represented the British soldiers charged in the Boston Massacre and won their acquittal on murder charges, an event that still exemplifies lawyers representing causes unpopular with their peers. In today’s liberal legal environment, that tradition survives – but not without challenges, particularly on issues involving identity politics. Consistent with Adams’s example, it is crucial that lawyers not let their personal beliefs prevent both sides of every hot-button issue from receiving the best counsel available.
Contributing columnist Kevin P. Martin is a constitutional and regulatory law expert practicing in Boston. The views expressed in this column are his own and not those of his law firm.
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