University of Notre Dame, the Law School, professor Derek T. Muller's study published in the Harvard Journal of Law & Public Policy on Tuesday focuses on amicus briefs filed by 100 of the largest U.S. law firms on behalf of "likely pro bono" clients, which he describes as clients that are nonprofit organizations, current or former government officials, those in academia, a range of professionals such as scientific experts, chaplains, prison guards and immigration officials, as well on behalf of victims or survivors.
Given the high-profile nature and significant national policy impact of cases before the high court, Muller writes that understanding BigLaw's pro bono amicus brief activity there "offers one way to examine the commitments of law firms."
"It can represent a contribution of time and money that the firm is willing to make on behalf of a client in pursuit of a particular outcome in a particular case," Muller writes.
His survey looks at Supreme Court merits cases for the four-year period, from the October term of 2018 through the October term of 2021. He excluded data on cases where petitions for review were denied or "emergency docket" cases.
During that four-year period, the largest 100 U.S. law firms signed onto 851 amicus briefs filed on behalf of likely pro bono clients, Muller found. Of those, 64% of amicus briefs aligned with the liberal position, while 31% aligned with the conservative position. The remaining briefs supported neither, he found.
The data further revealed that 16 BigLaw firms filed 10 or more amicus briefs in support of liberal positions on behalf of likely pro bono clients.
By contrast, just five BigLaw firms filed 10 or more amicus briefs in support of conservative positions on behalf of likely pro bono clients during that period, Muller found.
Of the 100 largest U.S. firms, Gibson Dunn & Crutcher LLP led the pack in filing amicus briefs on behalf of liberal positions for likely pro bono clients, filing 34 such briefs over the four years, the study found.
WilmerHale followed close behind with 30 amicus briefs filed on behalf of liberal positions for likely pro bono clients during that time. Sidley Austin LLP followed with 27, Jenner & Block LLP with 25, O'Melveny & Myers LLP with 24 and Covington & Burling LLP with 22.
But Gibson Dunn also filed the most amicus briefs on behalf of conservative positions for likely pro bono clients, filing 19 such briefs over the four years, Muller found.
Mayer Brown LLP followed with 18, Sidley Austin and Jones Day both with 11 and Baker Botts LLP with 10, according to the study.
Of the 29 firms that filed more than 10 amicus briefs on behalf of likely pro bono clients, one firm filed them exclusively on behalf of liberal positions: Paul Weiss Rifkind Wharton & Garrison LLP, the study found.
Orrick Herrington & Sutcliffe LLP filed one conservative-leaning amicus brief on behalf of likely pro bono clients during the four-year period, while filing 16 liberal-leaning briefs, according to the study.
While most of the BigLaw firms filed a greater number of liberal-leaning amicus briefs on behalf of likely pro bono clients, Mayer Brown, Baker Botts and Troutman Pepper filed a greater number of conservative ones during the four years considered in the study.
Representatives for law firms named in Muller's study did not immediately respond to Law360's requests for comment Wednesday.
Muller notes the limitations of his study, including that he focused on only the 100 largest U.S. firms, by gross revenue in 2021, which excludes many other firms that filed amicus briefs before the high court on behalf of pro bono clients during that time.
Muller found the greatest discrepancy in law firm positions on amicus briefs filed during what he termed the five "highest salience" cases before the U.S. Supreme Court during that four-year period.
The U.S. Supreme Court case that fit the "highest salience" profile during that period was Dobbs v. Jackson Women's Health Organization
, which saw 131 amicus briefs filed. The high court's June 2022 decision in that case overturned Roe v. Wade, ending the federally protected right to abortion. Another abortion case, June Medical Services v. Russo , was also among the "highest salience" cases in that period, with 69 amicus briefs filed.Two of the other "highest salience" cases — Fulton v. City of Philadelphia
and Bostock v. Clayton County — involved sexual orientation and gender identity issues. Another "highest salience" case during that period was the Second Amendment case New York State Rifle & Pistol Association Inc. v. Bruen .Muller found that of the nearly 100 amicus briefs filed by BigLaw firms on behalf of likely pro bono clients in these five high-profile cases, roughly 95% aligned with the liberal position, while just roughly 5% aligned with the conservative position.
The BigLaw firms that filed the highest number of liberal briefs on behalf of likely pro bono clients in those five "highest salience" cases were Covington, Kramer Levin Naftalis & Frankel LLP and WilmerHale, the study found.
Foley & Lardner LLP filed the highest number of conservative briefs on behalf of likely pro bono clients, according to Muller's study.
"There is little doubt that America's largest law firms invest more resources in more liberal-leaning causes than conservative-leaning causes on behalf of likely pro bono clients in front of the United States Supreme Court," Muller writes in his study. "But they invest substantial resources into conservative-leaning causes, too. In the biggest cases of this recent four-year period, however, the firms' likely pro bono amicus work overwhelmingly leaned in the liberal direction."
--Editing by Michael Watanabe.