ANALYSIS OF THE 2020 SUPREME COURT DOCKET

 
 

Summary

In this memo, we demonstrate that assessing the Supreme Court’s ideology exclusively in terms of decision contents overlooks a critical factor: the ideological composition of the docket the Court chooses to take up. A handful of Supreme Court decisions announced in 2021 led many media observers to conclude that the Court is moderate despite its 6-3 conservative majority. An assessment of the ideological potential of the Court’s 2020 merits docket (October 2020 - July 2021) allows for a much fuller understanding of the Court’s ideological leaning and impact.

More than three-quarters (77%) of cases with clear ideological lines had the potential to move the law in a conservative direction, while less than a quarter (23%) had the potential to move the law in a liberal direction. Because the Court controls its own docket, the ideological potential of the cases the Court chooses to take up is as important in assessing the Court's ideological leaning and impact as are its ultimate rulings.

 
 

Background

Following a handful of 2021 Supreme Court decisions in which the Court rejected extreme conservative arguments, many court observers rushed to assert that despite the Court’s 6-3 conservative supermajority, the Court is in fact far more moderate than popular perception. Some went so far as to assert the existence of a “3-3-3” Court with three liberal justices, three conservatives, and three justices in the middle. 

This conventional wisdom was premature, as the Court’s subsequent moves to gut the Voting Rights Act and allow a Texas abortion ban to stand made clear. But even were it not premature, this conventional wisdom would have been wrong, because it was premised on a myopic misunderstanding of the way the Court affects the law, overlooking the ideological implications of the cases the Court chooses to take, not just the decisions it reaches. Cases are not assigned to the Court; the Court itself chooses the cases it decides. The choices the Court makes in constructing its own docket are essential to understanding the ideological leaning of the Court. 

If, for example, the Supreme Court were to issue seven decisions in which it favored the liberal perspective and three in which it favored the conservative perspective, it would superficially appear to be a liberal Court. But if all ten cases had the potential to change the law in a conservative, rather than liberal, direction, the overall impact of the Court’s term would be quite conservative, even if the Court only favored the conservative outcome in 3 of the 10 cases because the other seven would have merely maintained the status quo. 

In order to assess the impact of the Court’s 6-3 conservative supermajority on its docket -- the field on which America’s most impactful legal battles are waged -- Take Back the Court commissioned an independent analysis of the ideological potential of the 53 cases that comprised the 2020 term. Each case was coded as having liberal, conservative, or no ideological potential. The coding was based on the potential change to the status quo represented by each case.

Brnovoich v. DNC, for instance, is coded as conservative. By agreeing to hear an appeal of a Ninth Circuit decision that Arizona voting laws violated the Voting Rights Act, the Supreme Court created an opportunity for itself to reinstate conservative voting laws and weaken the Voting Rights Act, or to maintain the status quo. A liberal ruling in Brnovich would not have moved jurisprudence in a progressive direction, but would have merely declined to move law in a conservative direction.

Conversely, California v. Texas is coded as liberal, because the status quo was a lower court decision finding the Affordable Care Act unconstitutional.

Results

Well over half (n = 31) of the 53 cases from the 2020 Supreme Court Term could be coded along ideological lines and the dataset contained more cases with conservative potential than any other type.

 

This graph shows all of the cases coded in this set, including the cases that did not present an ideological valence or were dismissed.

All Cases


Ideological Cases

 

These cases additionally break down by issue area, demonstrating the balance of potential ideology across the different subject matter before the Court. The following graph distinguishes cases on the basis of issue area as well as by potential ideological direction.


Number of Cases by Topic and Ideological Potential

In each issue area, the number of cases with conservative potential was higher than the number of cases with liberal potential. Only three out of the seven issue areas the Court considered included any cases with potential liberal ideology: criminal, economics, and immigration, with the most in the area of criminal law. There were no cases with potential liberal ideology in cases dealing with voting, religious liberty, environmental law, or takings.