Academia. The news media. The entertainment industry. Conservatives have long lamented the left-wing dominance of these societal behemoths. Now there's a new liberal bias concern: Big Law.
The nation's largest and most profitable law firms — the Am Law 100 per Law.com Compass and the American Lawyer — routinely take the liberal side in litigation before the Supreme Court and lower courts, critics contend. They also force out lawyers who want to represent, say, anti-abortion activists or gun rights enthusiasts.
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"We seem to have migrated from, 'Of course, lawyers represent unpopular clients,' to, 'Of course, big law firms aren't going to represent certain unpopular clients,'" leading Supreme Court litigator Paul Clement said at a May 12 Republican National Lawyers Association conference, in Washington, D.C. "The representations that are coming out of the biggest law firms seem to be skewed in one direction in particular."
Clement, solicitor general in former President George W. Bush's administration from 2005-08, cited supporting documents filed by Big Law firms with the Supreme Court ahead of its June 2022 Dobbs v. Jackson Women's Health Organization ruling, which overturned the 1973 Roe v. Wade decision and made abortion a matter for states to decide. Along with rulings against Harvard University and the University of North Carolina, it effectively eliminated the use of affirmative action in college admissions.
"If you look at the amicus briefs that were filed in the Dobbs case last term or the affirmative action cases this term, it's a clean sweep. They're on the liberal side of the case. There are multiple, multiple law firms — the largest law firms are represented," Clement said. "On the other side of the case, there are no Am Law 100 law firms represented."
And that can lead to a distortion of justice, Clement added.
"It starts to communicate the view, implicitly, that there's only one right answer in these controversies," he said. "There's only one respectable side of these disputes that are going all the way to the Supreme Court."
Fighting a liberal legal establishment
For some conservatives, liberal bias in Big Law is part of a broader problem. More than 70% of political federal donations from college professors and administrators since 2002 have gone to Democratic candidates, according to OpenSecrets, a group that tracks money in U.S. politics. Democratic office-seekers receive the vast majority of campaign donations to presidential and congressional candidates given by the top Hollywood executives and entertainers.
And while there's little to be done about the increasingly liberal clientele of Big Law — after all, firms can't be compelled to take on conservative-leaning clients or file amicus briefs on behalf of Republican causes — the industry does have a distinct legal vulnerability. That is law firm efforts to skew the selection process for summer associates, and then lawyers, once they graduate and pass the bar exam, in a way opponents say amounts to reverse discrimination.
Montana Attorney General Austin Knudsen led five Republican state attorneys general during the last week of August by writing to several top law firms, warning them to cease any programs that hire, retain, or promote people on the basis of race.
"My gut is that a few of these organizations are probably going to have to get sued," Knudsen told the Washington Examiner. Knudsen, a former state House speaker elected Montana's attorney general in 2020, noted he "hoped" litigation wouldn't be necessary. But he said he believes some firms will ignore the warning shots from lawmakers and conservative legal advocates.
"They're going to continue to feel smug about their racism because that's exactly what this is," Knudsen said. "You don't fix racism by using racism."
Law firm recruitment policies have drawn notice on Capitol Hill. Sen. Tom Cotton (R-AR) in mid-July sent letters to 51 law firms using diversity, equity, and inclusion policies, or DEI. Cotton, a 2002 Harvard Law School graduate who worked in law firms before joining the Army, said they and their clients may be in violation of federal civil rights laws if those programs treat people differently on the basis of race.
It's part of a broader push from the Right to counter DEI programs. Republican presidential candidate Vivek Ramaswamy's jabs against DEI in the corporate sphere helped make him a national figure. Another 2024 GOP primary rival of former President Donald Trump, Gov. Ron DeSantis (R-FL), made his name known nationally by battling "woke" Sunshine State policies that included DEI.
Anti-Big Law DEI litigation in full Blum
Conservative strategists have targeted DEI efforts at a time when the public's view on such policies appears to be out of lockstep with U.S. industries. The Pew Research Center reported in June that more than half of U.S. residents think race shouldn't be a factor in job applications. However, a July Bloomberg Law report found that a majority of law firms, 79%, require diversity within a pool of candidates for management and leadership roles.
A legal challenge is being led by the guiding force behind the Supreme Court's decision that curtailed race-based college admissions policies, Edward Blum. Lawyers for his nonprofit group, the American Alliance for Equal Rights, on Aug. 22 filed a lawsuit against two of the nation's top 100 law firms, alleging their paid diversity scholarships are discriminatory since they exclude applicants based on race.
"Race and ethnicity are attributes, not accomplishments," Blum told the Washington Examiner. "It is the hope of this organization, as well as most Americans, that these law firms end these racial restrictions and open these fellowships to all qualified applicants."
Still, Big Law DEI programs aren't going away without a fight. The American Bar Association's president issued a statement on Aug. 25 declaring the legal profession needs to "identify ways to comply with the law while promoting diversity, inclusion and equity in the legal profession."
Merle Vaughn, a national law firm diversity practice leader at Major, Lindsey & Africa, said some firms that have been threatened to cease their DEI programs may fight against the lawsuits before altering their policies. Many DEI-driven incentives are fueled by clients that require law firms to support diverse teams, Vaughn said.
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"The folks with whom I've spoken and who have reached out to me from law firms have made it pretty clear that they have no intention of letting this have a chilling effect on what they determined is important for their ability to service their clients and give advice that is representative of our country," Vaughn said.
"Not every firm is as committed," Vaughn added. But there have definitely been some “firms that have reached out to me and said, 'If they come after us, we'll fight it 100%.'"