The ABA needs ideological diversity to ensure its future
Josh Blackman.
A generation ago, nearly half of the lawyers in the United States were members of the American Bar Association. Today, that number is probably closer to 20%, if not lower. This decline is often attributed to an unwillingness of young attorneys to join civic organizations. Or perhaps lawyers no longer see tangible benefits from membership. Or maybe the dues are too high. All of these explanations ignore the elephant in the room—and I mean elephant in the figurative and political sense. The American Bar Association consistently skews to the political left. And this progressive mandate alienates conservative lawyers.
To be sure, claims of political bias against the ABA are not new. Personally, as a member, I have lodged such complaints. In recent years, however, these problems have manifested beyond complaints from the rank and file. There is a growing disconnect between the ABA and the states. There was a time when the ABA Model Rules of Professional Conduct were the gold standard. But ABA Model Rule 8.4(g) has proved to be a lightning rod of controversy. On its face, this rule was designed to eliminate bias in the legal profession. But many scholars (present company included) contended that it creates a speech code for attorneys.
Unsurprisingly, the rule has been rejected by almost every state that has considered it. Indeed, a version of this rule from Pennsylvania was declared unconstitutional by a federal court. Even New York, no conservative bastion, rejected the rule as proposed. After much deliberation, the Empire State substantially rewrote the rule to resolve many of the First Amendment concerns.
There are other instances of this growing disconnect between the ABA and the legal profession. For example, the Florida Supreme Court found that the ABA’s diversity requirement for CLE speakers amounted to a discriminatory quota. After some pressure and to ensure Florida lawyers could continue to get credit for taking ABA CLEs, the association modified its policy. More recently, the ABA House of Delegates rejected proposals to drop the LSAT requirement.
Yet for the cause of promoting diversity, the proposal may still go ahead with or without the House’s approval. From my perspective, this haste seems designed to get ahead of the U.S. Supreme Court’s pending decisions on affirmative action. In all likelihood, the justices will put the kibosh on many DEI best practices. And once the LSAT domino falls, the next agenda item will be to support replacing the bar exam with a diploma privilege. Again, this measure will be championed under the auspices of diversifying the bar.
These disconnects are not merely fronts in some culture war on cable news. No, the dynamics are far more serious. Historically, the ABA has enjoyed a position of privilege and power in our polity. That authority was due, in large part, to the ABA’s capacity to broadly represent the legal profession. But there is no guarantee this distinguished role continues.
Indeed, the ABA’s progressive slant risks its own obsolescence by alienating members. And that process already has begun. Citing liberal bias, Republican presidents long ago jettisoned the ABA from previewing judicial nominees. And it seems the Biden administration has continued that practice. The ABA, which still voluntarily rates nominees after the selection, has been effectively sidelined on the selection of judges. And the ABA could suffer a similar fate with regard to accreditation.
A future Republican administration may deem the ABA a poor steward of its accreditation power, and the Department of Education can seek other options. Or the federal government could authorize the states to choose their own accreditation authority for legal education. State supreme courts can adopt their own standards and join interstate compacts to ensure bar reciprocity. If the ABA continues to impose an ideological set of standards on law schools nationwide, the federal government can respond by revoking the ABA’s authority.
This risk isn’t limited to the national ABA. State bars also face threats. State legislatures, like Arizona, are moving to eliminate the so-called integrated bar, thus freeing attorneys from what they see as a progressive orthodoxy. And the 5th Circuit Court of Appeals already found that Texas’s integrated bar violated the First Amendment. The plaintiffs in that case complained that the bar association was spending their mandatory dues on progressive social policies. Sooner or later, the Supreme Court will do to bar associations what it did to public-sector unions: allow dissenting members to opt out of funding choices they disagree with. Bar associations that continue to meander from their core function face the loss of mandatory dues, nationwide.
Without question, many attorneys contend that the ABA is insufficiently progressive and the bar is too conservative. I don’t mean to disregard this perspective, but I do not think the ABA faces much of an existential threat from the left. However, alienated conservatives can render the ABA, as well as state bars, hobbled.
An organization that purports to represent the legal profession should reflect the mainstream views of all lawyers, and not one pole of the ideological spectrum. All too often, the ABA serves as the locomotive of the legal progression, barreling through well-established barriers in the interest of progressive ends. But the ABA is better suited as a caboose: trailing behind the legal profession, codifying the best practices from the states that have reached a consensus after sufficient percolation and acceptance. As the ABA drifts further and further away from the regulation of the legal profession, and focuses more and more on achieving progressive societal goals, the organization’s mandate dissolves.
There are steps that could right the ship, but the ABA leadership must first admit this is a problem worth addressing. Namely, the ABA should expand its pledge for diversity to include ideological diversity. In the short term, CLE panels should be required to seek out a range of views on matters of public concern.
In the longer term, the ABA should recruit people from across the ideological spectrum for all of the relevant committees. Invariably, committees that are proposing various DEI initiatives should include members who can articulate how those policies would affect free speech and free exercise rights. And these members should not be tokenized. I, for one, would be open to such meaningful opportunities. Dissenting opinions should be viewed as a preview of how courts and legislatures will receive various proposals.
I am confident that an ideologically diverse ABA would have never embraced a rule like 8.4(g), which raised—at a minimum—constitutional questions. The ABA could have proposed a more narrowly tailored rule that mirrored some of the established anti-bias provisions in the states. But the ABA went forward with a standard that no state had adopted. And even after the rule was challenged in court, the ABA failed to grapple with the rule’s problems. Indeed, the ABA’s formal opinion on the topic did not even mention a binding Supreme Court precedent. And such is the reality of an organization that is focused on progressive ends, rather than a balanced self-regulation of the legal profession.
If the ABA does not arrest its progressive lurch, the organization risks its own obsolescence. Model Rules will not be adopted. Evaluations of judicial nominees will be ignored. The accreditation monopoly will cease. And so on. A decline in membership will be the least of the ABA’s problems. The ABA can either adapt to a new political reality or fade away like the guilds of yore.
Josh Blackman holds the centennial chair of constitutional law at the South Texas College of Law in Houston and is the co-author of An Introduction to Constitutional Law: 100+Supreme Court Cases Everyone Should Know.
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