How conservative is the Supreme Court? To some observers, it is unambiguously anchored on the right, eager to write its ideological vision of the Constitution into the fabric of American law. To others, there are glimmers of moderation: rulings that fall short of right-wing activists’ ambitions, rejections of high-profile cases, and the faint possibility that a center-right bloc of three justices could end up steering the court into the next few decades. Some observers even touted the possibilities of a 3–3–3 court instead of a 6–3 court toward the end of the last term.
A new analysis by Take Back the Court, a liberal legal advocacy group, suggests that the Supreme Court is even more conservative in its goals and ambitions than its rulings indicate. Almost half of the court’s overall docket last term was made up of conservative cases—cases where the justices had a chance to move the law further to the right. “This study really shows how the court’s conservative supermajority is using its docket-setting power to stack the deck in favor of conservative outcomes,” Sarah Lipton-Lubet, the group’s executive director, told me.
Not every case heard by the Supreme Court falls into neat ideological lines, of course. Water disputes between Florida and Georgia, like the one heard by the justices last April, can’t be neatly classified as “liberal” or “conservative.” The report classified just 31 out of the 53 argued cases in the 2020–2021 term as either liberal or conservative. Of those cases, however, more than three-quarters could be defined as conservative. Most of them involved economics-related cases or criminal justice cases. In areas like voting rights and religious freedom, there were no cases where the court had a chance to move the law in a liberal direction.
Since the justices have almost complete control over their docket, those behind-the-scenes decisions may better reflect the court’s overall ideological posture than outcomes or rulings alone. “By taking an outsize number of cases that can only move the law in a conservative direction, they’re creating many opportunities for themselves to do so, and they’re also shaping the narrative and the way that cases are understood when they don’t choose the most conservative radical option on the table,” Lipton-Lubet said.
What makes a case “conservative” or “liberal”? That depends on a few factors, according to the analysis. Take Back the Court said that it divvied up the cases depending on whether they gave the court the opportunity to change the status quo in a direction favored by liberals or conservatives. That status quo is defined by the outcome if the Supreme Court didn’t take up the case at all. If a lower court’s ruling favored the liberal outcome, for example, then the case would be classified as a conservative case if the justices decided to review it because only conservatives would benefit from the court’s action. If the lower-court ruling favored conservatives, on the other hand, then it would be a liberal case if the court decided to review it.
A counterintuitive example might help. Last term, the Supreme Court took up California v. Texas to decide the constitutionality of the Affordable Care Act once again. Most of the previous ACA battles were conservative cases under this methodology: Liberals and their allies asked the court to uphold lower-court rulings in favor of the ACA, while conservatives and their allies asked the court to overturn those decisions and the status quo. In California v. Texas, however, the Fifth Circuit Court of Appeals had ruled against the individual mandate to buy health insurance, leaving open the possibility that the entire law was unconstitutional. Since liberals were now asking the Supreme Court to change the status quo set by the Fifth Circuit ruling, California v. Texas would be considered a liberal case.
This methodology sheds new light on the court’s ideological balance by focusing on how the justices choose cases, not just how they eventually decide the cases that are chosen. In a few cases last term, the justices handed down narrow rulings or declined to give right-wing litigants a clear win. Some observers thought that the court would use Fulton v. City of Philadelphia, a case involving the city’s decision to stop working with a Catholic adoption agency that refused to work with same-sex couples, to overturn a major religious freedom precedent from the 1990s that conservatives have often criticized. But the conservative justices split on that question, with Justice Amy Coney Barrett writing separately to explain that the litigants hadn’t provided a workable alternative to that precedent.
The court’s ruling turned out to be a narrow victory for the adoption agency, which later received $2 million in a settlement with the city to avoid further litigation. Some observers saw it as a sign of moderation by the justices and a signal that they would not accept every right-wing litigant’s interpretation of the law. Even so, the case still represents a major rightward shift for the court in and of itself. A court with a 5–4 liberal majority may have been more inclined to let the Third Circuit ruling in the city’s favor stand. Simply getting the case before the justices at all was a victory in and of itself for conservatives.
“The conservative justices don’t need to adopt every right-wing theory presented in a term to move the law dramatically to the right,” Lipton-Lubet told me. “If 10 are offered up and three are adopted, that’s still a significant, radical movement.”
The highest-profile case this term, Dobbs v. Jackson Women’s Health Organization, illustrates how the court’s docket choices are tilting further to the right. Before Anthony Kennedy retired in 2018 and Ruth Bader Ginsburg died in 2020, the court typically took up abortion-related cases that were brought by clinics and physicians who challenged state-level restrictions on the procedure. Dobbs, by comparison, involves a Mississippi state law that was already blocked by the lower courts. It also explicitly invites the justices to overturn or sharply narrow Roe v. Wade.
Inferring the court’s ideological balance from its docket choices isn’t without caveats. For one, it only takes four votes for the justices to hear a case—an internal rule that helps ensure that a five-justice majority can’t wield exclusive control over cases and outcomes. At the same time, in cases with an ideological tint, a four-justice minority may be reluctant to bring a case before the court. The Supreme Court routinely declined to hear major Second Amendment cases over the past decade, possibly because neither the conservatives nor the liberals knew how the court’s median votes would approach them.
Take Back the Court’s report only focused on the 2020–2021 term, its first one with the current six-justice conservative majority. It also only examined cases that were fully briefed and argued before the justices. In that sense, the analysis might actually underestimate the court’s conservatism by omitting cases on the shadow docket, where the justices have effectively resolved recent disputes ranging from an alleged racial gerrymander in Alabama to the Occupational Safety and Health Administration’s Covid-testing mandate in the right’s favor. A full analysis of the current term won’t be possible until it ends in June. But if it’s anything like the last one, it will be filled with opportunities to pull the law—and the country—toward the right. And with a conservative supermajority for the foreseeable future, those opportunities will be readily taken.
