Conservatism and the legal profession
In a previous post, I wrote about a study performed by University of Notre Dame law professor, Derek Muller, examining political positions of law firms. Muller reviewed law firm amicus briefs to determine the firms’ political orientation. He found that 64% of amicus briefs supported the liberal position, while only 31% supported the conservative position on a range of controversial issues.
Professor Muller is out now with a new study looking at law professors. He analyzed the political contributions of 3,148 law school faculty between 2017 and 2023. He found that 95.9% of law school faculty contributions went to Democrats. Only 2.7% went to Republicans. In dollar terms, 5.1 million went to Democrats, while only $425,000 went to Republican candidates.
More conservatism and the legal profession
Two states recently eliminated the bar exam as a necessary requirement for entry into the practice of law. Washington and Oregon have implemented apprenticeship pathways to admission. Many states have been considering this move due to the shortage of attorneys. While Washington and Oregon cited the lawyer shortage as a factor, the primary motivation cited was that the “bar exam disproportionately and unnecessarily blocks historically marginalized groups from entering the practice of law.” Although such language is often asserted in decisions like this, there is no empirical evidence that it is true. It is also unnecessary to rely on such an unsupported premise. The attorney shortage is a real thing and justifies creative thinking when it comes to filling the need. Although, part of me does feel like, since I had to take the miserable thing, everyone else should have too, as well.
Textualism
Last week, the U.S. Supreme Court decided Pulsifer v. United States. In that case, convicted drug dealer, Mark Pulsifer, raised an issue requiring interpretation of the 2018 First Step Act. That act has a “safety valve” provision allowing federal offenders to avoid mandatory minimum sentencing if they meet certain requirements. I wrote previously about the issue here. In a 6-3 decision, the Court ruled against Pulsifer. The split was interesting. The opinion was authored by Justice Elena Kagan, who was joined by all the conservative Justices, except Justice Gorsuch. Justice Gorsuch dissented joined Justice Ketanji Brown and Justice Sonia Sotomayor. The Majority, Kagan, opinion relied on the textualist cannon that Pulsifer’s proposed interpretation would render the statute meaningless. The dissent argued that, even so, the Court should give effect to Congressional intent. Gorsuch, in an unusual non-textualist interpretation, wrote that, “It is a change Congress promises in the First Step Act, and it is a promise that should have been honored.” Justice Kagan once famously said, “we are all textualists now.” It’s hard to believe I am writing this, but Gorsuch should have listened to Kagan on this one.
Judicial restraint, textualism and separation of powers
Not long ago, I wrote about the Alabama Supreme Court’s IVF ruling. You can read that post here. The ruling made big news at the time. In the case, the Court ruled that negligent destruction of IVF embryos was grounds for a lawsuit under the language of the Alabama wrongful death statute. The media reacted by claiming that the Alabama Court was imposing extremist ideology and couched the whole thing in the abortion debate. I wrote that, to the contrary, the Court was demonstrating judicial restraint. The Alabama Court employed a textualist analysis and insisted that policy decisions about IVF embryos were properly made by the legislature not the courts. This is how a court should behave. And it worked, too. Soon after the ruling, the Alabama legislature enacted a statute reading, “no action, suit or criminal prosecution for the damage to or death of an embryo shall be brought or maintained against any individual or entity when providing or receiving services related to in vitro fertilization.” Last week, the Alabama Governor signed the statute into law. The whole thing is a good lesson in judicial restraint and separation of powers, though not in the reliability of the media.
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