Bench Memos

Law & the Courts

The Oh-So-‘Neutral’ American Bar Association

I’m encouraged to see that the draft judicial ethics opinion that I made public and criticized—on judicial membership in the American Constitution Society, the Federalist Society, and the American Bar Association—has become the topic of broader debate and controversy. Among the many noteworthy pieces of commentary, I’d invite you to read Carrie Severino’s series of five posts—on the ACS’s political activities, on the ABA’s long list of liberal legislative policies, on how the draft opinion’s reasoning ought to apply to so-called affinity bar associations, on the broader implications of the draft opinion for religious and civic groups, and on the composition of the committee that issued the draft opinion.

The draft opinion’s advice that it is okay for judges to be members of the ABA, but not of the ACS or the Federalist Society, rests heavily on its claim that “the ABA’s mission, unlike that of the ACS or the Federalist Society, is concerned with the improvement of the law in general and advocacy for the legal profession as a whole.” The draft asserts that “[a]ny individual policy agenda [sic—what’s an “individual policy agenda”?!?] advanced by the ABA’s House of Delegates is ancillary to the ABA’s core, neutral, and appropriate Canon 4A objectives.”

In this post (and perhaps a follow-on post), I’ll explain why the draft’s claim is not tenable.

Let’s start with the ABA’s anointing itself as “the national representative of the legal profession.” That’s quite an extravagant claim: The most recent data I’ve seen shows that the ABA in 2017 had only 194,000 dues-paying members—only 14.4% of the nation’s attorneys. By contrast, in 1979, half of all lawyers were members of the ABA.

More importantly, the draft opinion posits a false dichotomy between the ABA’s mission and the policy agenda of the House of Delegates. By the ABA’s own account, the House of Delegates is the ABA’s “policy-making body”: it decides, through the resolutions it adopts, what the ABA’s grandiosely stated mission actually means, and it has adopted an expansively liberal understanding of that mission.

To take but one of countless possible illustrations: The question whether a female high-school student in rural Virginia who thinks she’s male has a legal right to use the boys’ restrooms at her high school might seem far removed from “concern[s] with the improvement of the law in general and advocacy for the legal profession as a whole.” But in explaining why it was submitting an amicus brief in support of the student, the ABA asserted that “[d]iversity and inclusion are essential to public confidence in the bench and bar” and that transgender students “who are excluded from bathrooms that align with their gender identities” “are less likely to pursue a legal education, depriving the bar of voices capable of speaking on behalf of those marginalized for their gender.” For present purposes, my point is not to take issue with the ABA’s assertion, but only to emphasize how its own understanding of its mission is expansive and malleable enough to cover just about anything.

A review of the ABA’s amicus briefs over recent decades provides clear evidence that the ABA is not politically “neutral.” As the ABA itself proclaims in the transgender brief (linked above), the ABA has

been a leading voice in nearly every landmark discrimination case involving sex, sexual orientation, gender identity, or education in the Supreme Court over the past two decades. The ABA filed amicus briefs in Fisher v. University of Texas at Austin (2016) [defending racial preferences in undergraduate admissions]; Obergefell v. Hodges (2015) [arguing that the Constitution creates a right to same-sex marriage; the ABA actually filed its brief in two of the cases that were consolidated with Obergefell]; United States v. Windsor (2013) [arguing that the federal Defense of Marriage Act is unconstitutional]; Christian Legal Society v. Martinez (2011) [arguing that public universities can compel a Christian student group to allow as leaders those who don’t adhere to the group’s Christian beliefs]; Jackson v. Birmingham Board of Education (2005) [arguing that Title IX protects against retaliation]; Lawrence v. Texas (2003) [arguing that there is a constitutional right to homosexual sodomy]; Grutter v. Bollinger (2003) [defending racial preferences in law-school admissions]; Boy Scouts of America v. Dale (2000) [opposing the Boy Scouts’ First Amendment claims to select their leaders]; and Romer v. Evans (1996) [opposing Colorado’s Amendment 2]. [Reporter citations omitted; hyperlinks and bracketed description added.]

An updated list would surely include the ABA’s amicus briefs in the pending Title VII cases (arguing that Title VII prohibits discrimination on the basis of sexual orientation or transgender status) and in Masterpiece Cakeshop v. Colorado Civil Rights Commission (2018) (arguing against a compelled-speech exception to public-accommodations laws).

The ABA’s advocacy of liberal causes extends well beyond LGBT and race matters. The ABA has filed an amicus brief in support of the abortion petitioners in the pending case of June Medical Services v. Gee. It filed amicus briefs in half a dozen cases in support of detainees held as enemy combatants or suspected of terrorism. It filed briefs in several cases in support of challenges to enforcement of immigration laws. It filed briefs arguing that life-without-parole sentences for juveniles violate the Eighth Amendment. It provides a list of (and links to) some 30 or so briefs that it has filed against the death penalty. And in District of Columbia v. Heller (2008) it argued against a Second Amendment right to own firearms.

Again, my point here is not to take issue with any of the ABA’s amicus positions. It is, rather, to highlight that the ABA’s mission, as the ABA itself understands and implements it, includes its advocacy of a broad array of distinctively liberal causes.

By contrast, the Federalist Society, which the draft opinion accuses of “advocating … conservative causes,” has never filed an amicus brief in any case.

For what it’s worth, I take no position on whether the judicial ethics rules should be interpreted to bar judges from being members of the Federalist Society or of the ABA. My only position is that if a line is to be drawn between the two organizations, it is the ABA, not the Federalist Society, that should be on the forbidden side of the line.

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