ANALYSIS OF THE 2020 SUPREME COURT DOCKET

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.