This opinion is just badly written and badly reasoned. It's not even well written enough that it is worth trying to debate. Of course the judges in question were rated unqualified by the ABA (which is a really low bar) so not surprising.
Now I don’t think the ABA ratings are worth anything, but your assertion is factually untrue.
https://www.techdirt.com/2022/09/16/5th-circuit-rewrites-a-c...
It goes into thorough analysis into why this is such a lazy, stupid decision. This is the quote I agree with:
> Frankly, Oldham’s arguments sound much more like the arguments made by ignorant trolls in our comments than anyone with any knowledge or experience with 1st Amendment law.
This "judge" is an unqualified political hack.
The author, Mike Masnick, is a tech blogger — not an attorney, as far as I've been able to determine.
Even Eugene Volokh — who is both an actual attorney and uniquely qualified to weigh in here — didn't attempt to digest the 113 pages of the opinion, much less immediately produce a reasoned analysis. I'm sure one will be forthcoming.
The quote you cited from Masnick certainly isn't legal analysis. It's empty invective, as are statements like "This "judge" is an unqualified political hack".
A few other sources:
- Lawrence Tribe, a very senior center-left constitutional lawyer and Harvard prof: https://twitter.com/tribelaw/status/1562951505451266050
"A disgraceful Fifth Circuit decision"
- Reporters' Committee on Freedom of the Press (a deeply centrist/neutral organization) https://twitter.com/katie_rcfp/status/1570897188359909377
"Just finished reading the 5th Circuit’s decision in the NetChoice v. Paxton case and it’s . . . not good. To say the First Amendment analysis is deeply flawed would be an understatement."
- Orin Kerr, a conservative attorney who's also been a Federalist Society backer: https://twitter.com/OrinKerr/status/1570900354061180929
"I am old-fashioned, but I would think that inferior courts start with what the Supreme Court has said the text means."
(I did a quick search and found three sources that span the ideological spectrum, which show how widespread the negativity about this decision has been.)
This is a terribly-reasoned decision that doesn't make much legal sense. It's an ideological decision, motivated by the feeling that rightwing voices, which are actually boosted by the rich people that own social media, are instead, against all sense, suppressed.
That tweet isn't even about this case, it's about voting rights for felons.
Volokh is the Gary T. Schwartz Distinguished Professor of Law at UCLA, uniquely qualified to weigh in on first amendment law, wrote a column on first amendment and speech issues for the Washington Post for years, and frankly, I imagine would be pretty disappointed (but not surprised, in these illiberal times), to be written off as a “conservative attorney” when he’s consistently espoused libertarian views over the decades.
On top of which, he hasn’t actually weighed in on this ruling yet, and may very well take umbrage with the decision!
His blog at reason did, in fact, post a guest article arguing that the ruling falls afoul of the takings clause.
> Orin Kerr, a conservative attorney and notable Federalist Society backer
You just disqualified Volokh for being a “conservative attorney”.
Now you’re citing a conservative attorney whose opinion suits your argument?
That’s not arguing logically or in good faith, even putting aside the fact that your claims regarding Volokh are a fabrication.
They mentioned they cited sources across the ideological spectrum. In theory, that's good.
It sounds like the primary issue here is mischaracterization of Volokh, but that doesn't necessarily change or invalidate the other sources mentioned.
Volokh is a highly-credentialed subject matter expert whose work has been cited by the Supreme Court, and who has been working in first amendment and related law for decades.
His first book, in 2001, was "The First Amendment: Problems, Cases and Policy Arguments. New York: Foundation Press."
He published a 100+ page, peer-reviewed article covering this subject area in 2021:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3913792
> He seems no more qualified than the sources mhneu provided.
He's a great deal more qualified, but that's not the point. He hasn't weighed in on this decision at all yet, other than to note that it was released.
I swear, the amount of "motivated reading" by emotionally invested commenters has me seriously suspicious of anyone that holds a particularly strong legal position on this just-released decision. People do not appear to be thinking. At all.
> This decision has been soundly roasted across the spectrum.
It may very well be rebutted by Volokh, but if so, it won't be a "roasting", and his position will certainly be a great deal more erudite than "this judge is an idiot!"
I brought up Volokh in contrast with the random tech blogger's review of the decision that was cited by the (now great-great-great...-grant-parent post), because if a subject matter expert like Volokh has not yet had time to read and properly analyze the decision, there's simply no way "Mike Masnick" of "Techdirt" has.
To me the one interesting bit was this: “ The websites do engage in editorial control. The difference from newspapers is that it’s ex post control. If there are complaints, they will review the content afterwards to see if it matches with their editorial policies (i.e., terms of use).”
I mean, I disagree — terms of use of a tech platform are miles away from an actual editorial opinion, they are bloodless legal documents and virtually impossible to read for pleasure, unlike actual editorial - but at least this engages with the decision on the merits.
I’d encourage anyone to read the actual decision, it (and the dissent) are more interesting reading than this. (And unlike at TechDirt the citations don’t approvingly quote someone named “Wonton Killing Hat”). https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...
For example, just look at the section where the opinion argues that the platform is bringing up "hypotheticals" it talking about curbing pro-Nazi or terrorist posts. I kept re-reading the quoted opinion again and again thinking "Is this judge a complete idiot?" To be clear, I'm not basing this on the commentary from the article's author (though I agree with him). But trying to argue that pro-Nazi and terrorist speech on tech platforms are "hypotheticals" makes me wonder if this judge has ever seen the Internet.
But IANAL and had to read through it pretty fast.
The judge’s use of the term “hypothetical” was correct, and does not represent an assertion, one way or the other, about whether “pro-Nazi and terrorist speech” does or does not exist on these platforms.
It's not a way of engaging in dialectic/dialogue. It's saying it's so bad you won't engage in dialogue. That's a legitimate position in some circumstances.
That this is a court decision, however, might mean that in these circumstance one does need to directly challenge despite it's qualities.
If someone doesn't want to discuss a topic, all they have to do is not discuss the topic.
Expressing such a position isn't a legitimate contribution to public discourse; it's a tactic that inhibits the process of building mutual understanding through discourse.
A reply that says "this is obviously wrong" may seem contentless but it's just "minimal content". You should be able to respond like this for the same reason you should be able to down vote things without comment. It's like a professor giving comment on an exam. Some questions they will just mark wrong, some they might write "makes no sense" to get the person thinking or clarifying and others they'd go into detail with.
There was literally zero argument in the original post. You don't have to write a full analysis of everything that was said, you can just pick the parts you're willing to discuss and focus your attention on that or don't engage at all.
That is clearly not based on facts. Corporations simply have a right to choose which speech they will AMPLIFY. That is not the same as muzzling anybody.
They don't knock on your door and say you better stop expressing these views or we will harm you. They don't even harass people online. They just simply choose which speech they will pass on and which not.
If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech". Of course not. Rather it is the case that you don't have the right to demand that I pass on your emails to all my contacts.
This is bad jurisprudence. I wonder, was this judge perhaps nominated by D. Trump?
That makes private messages an interesting question, though. Or even cases where many people explicitly subscribe to a single voice -- is the platform really amplifying anything?
Blocking such messages (to specific recipients who specifically opt to receive them) seems materially different than declining to promote/amplify such messages.
I'm speaking from an ethical standpoint; it may or may not matter legally.
I'll readily admit that algorithms can amplify content; but more than enough people have been tweeting for years and barely have any likes on their tweets (see @CNN, though I'm being cheeky). People say that algorithms reward bad content, because they amplify controversy; but really they just give people what they want. A "controversial" tweet with no likes won't get amplified.
The crux is that if you agree that due to their use of algorithms, these platforms "amplify" all the content they host, then surely that means they endorse whatever they don't ban, to some extent? I'm not making a legal argument, just an intuitive one. That reasoning doesn't scale to an understaffed, undermoderated social media platform that can't even ban the omnipresent "double your crypto" scam accounts.
It depends, can I go to the mall and start preaching the gospel?
The answer is yes - at least in NYC, SF, Chicago, etc (where these legal cases have played out). I’m legally aloud to do that; and as it’s the public square I cannot legally be removed (doesn’t mean you wont). It is considered the commons and open to the public. Inside a store is not the same thing, some jurisdictions have various rules.
Now back to this discussion. I agree a company wouldn’t be obligated to amplify, ie promote via an algorithm. That said, they shouldn’t remove someone’s ability to share political speech. On social media platforms they have been banning people for just that.
Social media is the commons, as such anyone should be able to preach to the masses. Though, perhaps it’ll be limited to only those who follow them.
That said, I think the Texas law is kinda stupid. Because the tech companies have claimed they ban for other reasons such as: misinformation — challenging elections, questioning vaccines, questioning masks, etc all get banned.
None of them are directly political in nature. However, only one political party rejects that stuff… that said, arguably I could go to a mall and preach any of those. The same protections should apply.
Social media is not the commons.
The internet is the commons.
Social media platforms are the stores.
Even for technical users, if you want to post a political video, is there really an alternative to YouTube with any audience for it?
Add to that platforms such as Facebook groups and Reddit subreddits, where the individual groups are much more like stalls and the platform is like the mall.
To be fair, Rumble is a decent alternative. Some videos have millions of views, they basically accept anything that’s protected by the first amendment. A lot of banned creators have moved or are moving there.
That said, I’d still argue YouTube is “the commons”. Just like you can have multiple malls and a town square, there’s no real argument there should be a limit.
In a free society you’re free to speak in the commons. That doesn’t mean anyone has to listen. That said you can’t boot everyone you don’t like from the town square.
Social media posts can be made, doesn’t mean you have to follow or read.
... or share posts. The same applies to social-media-companies themselves. They don't have to "share" your post to anybody.
They have much the same rights and obligations as you do (especially if you believe that corporations are "people").
It is a different question as to are they monopolies and should the law do something about monopolies.
Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.
> Social media companies' platforms are not "Town Square". How do we know that? Because tax-payers are not paying for their operations. Their share-holders are paying for that by retaining some or most of the revenues in the company.
This has already been litigated in American history. It’s called a “company town”. I also previously mentioned how you can have protected speech in places like malls (litigated in New York and Chicago).
https://en.m.wikipedia.org/wiki/Marsh_v._Alabama
> ruled that a state trespassing statute could not be used to prevent the distribution of religious materials on a town's sidewalk even though the sidewalk was part of a privately-owned company town
That would be like expecting Facebook or Twitter to distribute any materials you give them, to everybody who visits FB. That would be totally unfair, companies don't have the obligation to pass on your messages to anybody.
Freedom of Speech means I don't have to repeat and amplify what somebody else says or wants me to say. It is not only the freedom to speak what I want, but also the freedom to NOT speak. And companies have freedom of speech too.
This judicial ruling sounds very suspicious to me.
The stores would be equivalent to stores. So Amazon, Etsy, etc. you can get there through social media.
They are actively blocking stories about Biden. Actively filtering stories about negative aspects of COVID vaccines. They are actively filtering stories about inconsistencies in the 2020 election - "The most secure ever".
They are amplifying stuff - absolutely... but they are also censoring free speech because "corporations are allowed too".
"If you tell me something and I don't tell anybody what you told me, does that mean I "muzzle your speech"."
No... but if you post a story and your account gets banned for stuff that's later found out to be true (IE: hunters laptop and the New York Post RIGHT BEFORE AN ELECTION)? that's absolutely muzzling speech and suppressing facts.
...or from forever blocking nonsense unscientific articles from a newsfeed
...or from wearing a shirt that's pro-Democrat at a convention
...or from bringing scientific consensus into Fox talking heads shows
...or from posting on their subreddit unless certified by a peer as being sufficiently conservative
That your post focuses singularly on denial of Republican establishment talking points shows the real intent implied by those pushing such laws, without any consideration that the "cancel culture" has been a deep tradition pervasive in media and American life on both sides of the aisle.
Also, corporations either have personhood or they don't. Do you support the Citizens United decision?
I'm fine with allowing them to censor speech if they also are liable for the speech they do choose to publish, just like any other individual, newspaper, or publisher would be.
Platforms cannot simultaneously claim that:
(1) They are mere conduits for other people's speech, and thus, deserve to be shielded from any liability for what they publish
(2) What they publish is their own speech, and thus, their publication choices should be considered protected expression under the first amendment.
If Fox News publishes libel, they can’t just claim that they’re hosting someone else’s reporting.
If a telecommunications provider publishes someone’s libel, they are shielded from liability as a common carrier. In exchange, however, they must provide their services non-discriminatorily to the public.
If FedEx delivers controlled substances as part of their usual course of business, they are also shielded from liability as a common carrier, but the same responsibility to serve the general public applies.
YouTube and other “interactive computer services”, however, were granted an explicit privileged shield from liability by the Communications Decency Act of 1996, with none of the responsibilities historically associated with that privilege.
Without the CDA, Twitter wouldn’t exist; they’d have been sued into oblivion long ago. Instead of solving that problem by extending our well-understood common carrier framework to “interactive computer services”, we granted them a massive privilege and asked for nothing in return.
Providing service without discriminating... how does holding all users accountable to the same terms of service not satisfy that requirement? I don't know of any cases where a person kicked off their ISP for torrenting subsequently denounced the ISP as a "publisher".
Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.
The idea that a single website is a common carrier seems to stretch the definition to the breaking point. It ignores the general understanding that common carrier designations tend to occur in situations involving natural monopolies.
A website decides what information it takes in, stores, displays, and transfers. No one's rights are violated when they take information from you but don't display it anywhere else. You are not entitled to an audience on their infrastructure; go find a website who shares your ideas about how to operate.
Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
When internet giants suddenly have a huge incentive to withhold content that powerful interests might sue over, what sort of platform for free expression do you think social media will end up becoming?
https://news.softpedia.com/news/ISP-Sued-For-Banning-BitTorr...
In countries with Net Neutrality, or more : those where Internet access has been deemed a minimal human right, needed for basic citizenship, Internet Service Providers are indeed very restricted in what and how they are allowed to block...
The definition and purpose of a "common carrier" has no relation to monopoly status whatsoever, whether you're referring to English common law (the concept dates back to the 1600s), or in its modern US incarnations.
Conceptually, the principle of common carriage is that:
(1) There are beneficial services that private entities can only feasibly provide if they are granted special privileges generally reserved by the government.
(2) Such services, in exchange for being granted those privileges at a cost to the public, must also serve the public.
> Are you saying that we get to dictate to internet companies exactly what their services entail? Doesn't sound quite right to me.
"Telecommunications providers" — landline and cellular telephone companies — are already classified as common carriers under our telecommunication laws. We don't dictate exactly what their services entail.
ISPs are not classified as "telecommunications providers", mainly because ISPs have spent a lot of money and lobbied very, very hard over the past three decades to avoid exactly that outcome. They convinced Congress to grant them the privileges without the responsibilities. Net neutrality was just a skirmish in this very long-running war.
> Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.
Websites will be forced to either:
(1) Take responsibility for their content posted by their users — including the spread of libel, disinformation, harassment, doxing, threats, et al, or
(2) Serve the public square, neutral as to use and user, in exchange for the privilege of limited liability for what they publish.
From https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?articl...:
"As part of its attempt to exempt new entrants from common carriage requirements, the FCC ruled that even providers who held themselves out as serving all comers were not common carriers unless they possessed market power, only to see this decision struck down on judicial review as exceeding the FCC’s statutory authority. Congress subsequently amended the statute to give the FCC the authority to exempt firms that lacked monopoly power from common carriage requirements. After experimenting with different approaches, the FCC now applies a traditional market-power framework to determine when it should exercise its so-called forbearance authority.
Even skeptical commentators recognize that it has become the dominant, if not the sole, criterion for determining the scope of common carriage."
> > Really, I'm curious if you think making websites liable for the content their users post will actually further the goals of free expression on the Internet.
> Yes, absolutely. If you do not want to operate as a common carrier — that is, on a non-discriminatory basis, neutral as to use and user — then you do not get the special privileges granted by the government to common carriers serving the public interest.
Is this dichotomy recognized as such in any consequential legal decisions? Where can it be shown that internet companies meet the standard criteria for being a common carrier? Since I cited a source, perhaps you might also.
> on a non-discriminatory basis
All references I can find to nondiscrimination in connection with common carriers are about price, e.g. charging different prices for the same service quality, or vice versa. How does this apply to social media companies who charge their users nothing, and whose service is not a commodity whose quality is measurable in absolute terms?
You clearly don't like section 230, but you're not really contending with the ramifications of your position.
Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?
I think it's safe to say that correctly identifying disinformation (not to mention libel) is flat-out impossible at a certain scale. Much disinformation is impossible to prove as such at any scale - would you require users to cite sources? Or just limit themselves to expressions of opinion?
Providers and users will thus have to satisfy themselves with imperfectly coarse filters and policies that inevitably chill more speech than intended. This probably goes double for video content, since analysis is that much more difficult.
Not an internet I would be interested in using.
Lobbying efforts, lobbyist-funded legal opinions, and a captured regulatory body don’t a valid legal/policy argument make.
Yes, congress has given away massive privileges to ISPs and none of the responsibilities; that’s the whole point. That was a mistake; the gift of privatization of a public good.
Thanks to heavy lobbying, ISPs have avoided being classified as common carriers entirely (irrespective of their sitting in a monopoly position).
> Your analysis stops at the point of passage of some hypothetical legislation removing section 230 protections, which is not really the point of my question about free expression. What is the actual downstream systemic effect on what speech users are allowed to express, and that providers are discouraged from permitting?
The downstream effect is that providers either have to take responsibility for what they claim is their own speech, or in exchange for the privilege of a shield from liability for what they post, serve the public good regardless of use or user, and operate their sites as an open public forum.
I think it’d be an incredible improvement to the state of public discourse.
If this particular comment section is any indication, there are large groups of people living entirely in information bubbles that have no idea what their ostensible opposition actually believe, have seemingly lost the ability to actually critically read and understand opposing viewpoints, and whom argue voraciously and without exception against straw men solely of their own devising.
At any rate, this would be a stupid and abhorrent policy which would nonetheless not discriminate in the sense described by federal law. The marketplace of ideas being what it is, I'm not sure what kind of foothold such a site would be able to get, having such a stupid policy.
Good luck with that I guess. I'm going to go blow up the Do Lung bridge.
Not true.
The first of the two judges who concurred on this opinion, Andrew Oldham, was unanimously rated “well qualified” by ABA’s federal judiciary standing committee on Feb 15 2018 according to their website see page 5: https://www.americanbar.org/content/dam/aba/administrative/g...
Also concurring, Leslie Southwick was also unanimously voted “well qualified” by that same ABA committee on Jan 9 2007 see top of page 1 https://www.americanbar.org/content/dam/aba/administrative/f...
Edith Jones was appointed by Reagan in 85 so I can’t readily find her rating, but she almost entirely dissented from this ruling, so if she’s unqualified it runs against your point.
(Judges names via original opinion https://www.ca5.uscourts.gov/opinions/pub/21/21-51178-CV1.pd...)
Can I ask what the basis for your statement is?
Here is a sloppy copy paste of the list of judges voted unqualified by ABA since 1989 to further confirm the above (none of the concurring judges are on it and both were appointed since then)
—————————
Via https://ballotpedia.org/ABA_ratings_during_the_Trump_adminis...
Nominee Court President Rating Outcome
Alexander Williams Jr. District of Maryland Clinton Substantial majority not qualified Confirmed on August 6, 1993
Bruce Greer Southern District of Florida Clinton Substantial majority not qualified Nomination withdrawn
David Hamilton Southern District of Indiana Clinton Majority not qualified Confirmed on October 7, 1994
David Katz Northern District of Ohio Clinton Substantial majority not qualified Confirmed on October 7, 1994
Daniel Patrick Ryan Eastern District of Michigan G. W. Bush Substantial majority not qualified Nomination withdrawn
David Bunning Eastern District of Kentucky G. W. Bush Majority not qualified Confirmed on February 14, 2002
Dora Irizarry Eastern District of New York G. W. Bush Majority not qualified Confirmed on June 24, 2004
Frederick Rohlfing District of Hawaii G. W. Bush Unanimously not qualified Nomination withdrawn without hearings
Gregory Van Tatenhove Eastern District of Kentucky G. W. Bush Majority not qualified Confirmed on December 21, 2005
Michael Brunson Wallace Fifth Circuit Court of Appeals G. W. Bush Unanimously not qualified Nomination withdrawn without hearings
Roger Benitez Southern District of California G. W. Bush Substantial majority not qualified Confirmed on June 17, 2004
Vanessa Bryant District of Connecticut G. W. Bush Substantial majority not qualified* Confirmed on March 28, 2007
Brett Talley Middle District of Alabama Trump Unanimously not qualified Nomination withdrawn
Charles B. Goodwin Western District of Oklahoma Trump Majority not qualified Confirmed on August 28, 2018
Holly Lou Teeter District of Kansas Trump Substantial majority not qualified Confirmed on August 1, 2018
John O'Connor Northern, Eastern, and Western Districts of Oklahoma Trump Unanimously not qualified Nomination withdrawn
Jonathan Kobes Eighth Circuit Court of Appeals Trump Substantial majority not qualified Confirmed on December 11, 2018
Justin Walker Western District of Kentucky Trump Substantial majority not qualified Confirmed on October 24, 2019
L. Steven Grasz Eighth Circuit Court of Appeals Trump Unanimously not qualified Confirmed on December 12, 2017
Lawrence VanDyke Ninth Circuit Court of Appeals Trump Substantial majority not qualified Confirmed on December 11, 2019
*This rating represents Bryant's nomination to the 109th Congress; Bryant's rating changed when her nomination was submitted to the 110th Congress. A substantial majority rated her as qualified at that time. Source: American Bar Association Ballotpedia f in Twitter logo
If you Google Jones you will find an ethics complaint, maybe that’s what OP was thinking of. It was over a speech she gave (not recorded) and was dismissed.
Edit: example https://www.wsj.com/articles/anticompetitive-woke-law-school...
How exactly do their political positions figure into their ratings? Conservative judges are de facto unqualified? Left leaning judges get a pass?
If you have a concrete criticism of their rating practices you don't need to focus on their politics, do you?
If those biases appear partisan, it may be the case and that they are partisan for a reason having to do with the nature of the professional expertise that and the lack of said expertise on the other side of a partisan divide.
My generation saw the legalization, nationally, of gay marriage as well as the protection of personal property rights regarding firearms against government attempts to circumvent those rights for law-abiding citizens. Meanwhile, an attempt to modify the census (a fairly broad executive power) failed to pass muster in the court because someone wrote down basically the only way such a modification could be illegal (blatantly attempting to disenfranchise states along racial lines)... Was their actual intent.
And we probably shouldn't go into the absolute debacle that was the attempt to override the electoral will of the 50 states in the 2020 election.
Even “liberal” legal decisions are far more conservative today than they were in the 1970s. Compare Roe and Obergefell (both written by socially liberal Republicans). Roe has lots of high minded hand waving about rights and dignity and whatnot. Obergefell meanwhile starts from deeply rooted traditions and spends a tremendous amount of ink making the case that gay marriage is sufficiently like traditional marriage that it should be covered by the same constitutional protection.
This became starkly apparent when Roe was overturned. By that point, the ground had shifted so much that even liberals had a hard time defending Roe on the merits. They had instead retreated to stare decisis. Because even a lot of liberal lawyers today have a hard time swallowing the idea that judges should be in the business of inventing new rights to implement their vision of what’s just.
Yes, there are a lot of textualists on the Supreme Court right now (thanks to a concerted political effort to put them there). That doesn't imply they represent the "intellectual horsepower" of the legal profession as a whole. They might represent the political savviness and luck of the GOP, to have managed to appoint so many from a minority-populace-support footing by maximally gaming the non-representative quirks of the US political system. But I wouldn't classify political savvy as legal "intellectual horsepower;" the ABA doesn't rate voters.
To be sure, the overwhelming majority of lawyers are liberal, and indeed the majority of very smart lawyers are liberal. But legal conservatism punches way above its weight in shaping the turf everyone is playing on.
That doesn't imply it's good law that well-trained lawyers believe is correct. If anything, the prevalence of lawyers who aren't on board with it indicates the contrary. But the federal legal system itself is not a democracy, and when we change a handful of key operators in the courts, the timbre of the law can change quickly.
You’re incorrect about both democracy and demographics. The legal profession is dominated by the ideology of a white liberal minority. Not only are there few conservatives, but the conservative views prevalent among Black, Hispanic, and Asian people are also absent. (This is a common mistake where people confuse minorities voting democrat for being liberal. Most democrats are not liberal, and “changing demographics” hasn’t affected that because most minorities aren’t liberal either.)
Modern liberal legal thought arose in the 1950s and 1960s to allow that ideological minority to change society in ways they couldn’t achieve at the ballot box. For example, both Republican and democrat lawyers and judges are much more secular than voters in their respective parties. Thus, the Supreme Court banned school prayer more than 70 years ago, but even as of 2012 a strong majority of Americans opposed that decision: https://www.pewresearch.org/fact-tank/2013/06/13/south-carol....
Another example is racial preferences in education and hiring. It’s the pet project of white liberals and their allies. The majority of non-white Americans, including Black people, oppose express racial preferences for both college admissions and hiring. (E.g. https://www.pewresearch.org/social-trends/wp-content/uploads...)
https://www.wsj.com/articles/anticompetitive-woke-law-school...
I'll save you some trouble, the ABA replied here: https://www.wsj.com/articles/american-bar-association-aba-la...
Edit: also unclear whether you realize I'm agreeing with the comment I responded to or not. /shrug