The Patriot Post® · How Major American Law Firms Became a Tool of the Left

Judge James Ho of the 5th U.S. Circuit Court of Appeals recently charged that the nation’s major law firms are infested with the woke ideology of the Left, infusing them with “institutional bias” and leading them to provide pro bono and other assistance on only one side of the political divide.

After more than two decades in the heart of darkness — Washington, D.C. — my own observations of the legal community match those of Ho.

Pro bono work for liberal causes gets you praised and rewarded. But seek to do pro bono work for conservative causes, and you will be criticized, denied permission to engage, and possibly thrown out of your law firm.

On March 14, in a case filed by the Republican and Libertarian parties against Mississippi, the 5th Circuit voted 10 to 5 against taking up a case en banc and reviewing an earlier decision of a three-judge panel.

That panel had concluded that Mississippi’s practice of accepting and counting absentee ballots that come in up to five days after Election Day violates the federal statutes that set the date of federal elections, which, as we all know, is the first Tuesday after the first Monday in November.

One of the judges who wanted to accept the case was Barack Obama appointee Stephen A. Higginson.

As Ho says in his concurrence in the denial of a rehearing en banc, one of the major reasons Higginson gave was the fact that “topflight” lawyers had offered “their views on this case pro bono,” arguing the panel had wrongly decided the issue.

“The implication,” Ho said, “is that the panel decision may be so off the mark that leading members of the profession have felt compelled to speak out.”

But as Ho correctly observes, “there’s another explanation: The pro bono activity in this case may just reflect the institutional bias at many of the nation’s largest law firms.” Ho points to legal scholars who have “documented how major law firms consistently favor one side in highly charged disputes like this one.”

My colleague John Malcolm has also pointed this out, noting the “100 largest and highest-grossing law firms … overwhelmingly support progressive causes via amicus briefs” filed with the U.S. Supreme Court.

My own experience bears that out, too.

In case after case in which election reform efforts — such as implementing a voter ID requirement — have been attacked by the Left, the courtrooms are usually overcrowded with lawyers from big firms providing pro bono services to the groups attacking such reforms. I’ve almost never seen any major law firm providing pro bono services to those defending election reforms, although they’re overwhelmingly supported by the public.

The “evidence” on this partiality, says Ho, “has led to the belief that major firms are falling short of ‘the great traditions of the profession.’ The concern is that they have abandoned neutral principles of representation, and instead engage in ideological or political discrimination in the cases they are willing to take.”

Ho points to a 2023 case before the 5th Circuit, Hamilton v. Dallas County, in which the judge says the “Justice Department advised our court that much of the institutional bias at major firms may also include work-place policies that discriminate on the basis of race or sex — yet remain fashionable in many legal circles.”

That “fashionability” is no doubt one of the reasons that Andrea Lucas, the acting chair of the U.S. Equal Employment Opportunity Commission, just sent letters to 20 of the top law firms in the country asking for information about their employment practices.

The EEOC notes that publicly available information about the firms’ practices show that they “may entail unlawful disparate treatment in terms, conditions, and privileges of employment, or unlawful limiting, segregating, and classifying based on race, sex, or other protected characteristics,” in violation of the Civil Rights Act of 1964.

Given all of this, Ho says that the courts “shouldn’t be surprised when ‘topflight’ firms consistently jump in on only one side of politically charged disputes, including this one — whether the law actually supports their position or not. Nor should the firms themselves be surprised when others take notice that they are no longer abiding by the principles of the profession, and react accordingly.”

One final proviso.

Many conservatives — individuals who believe in upholding the Constitution and the rule of law — have learned a general rule: If the editorial pages of The Washington Post and The New York Times disapprove of what you are doing, you’re probably doing the right thing.

The general rule for judges may be similar given the institutional bias of so many major law firms: If they complain about your legal conclusions, you have also probably interpreted the Constitution and the law correctly.

Republished from The Daily Signal.