(The Hill) — On Fridays at the Supreme Court, justices gather behind closed doors to discuss the petitions for appeal filed from across the country. Roughly 98 percent of the time, the justices deny an appeal, a result which leaves intact the decision of a lower court and consigns the unsuccessful petition to the trash heap.
For the slim fraction of cases the court does hear each term, however, the dynamics surrounding the selection of these disputes represent a huge source of the 6-3 conservative majority Supreme Court’s power as it remakes constitutional law.
Yet despite being highly consequential, the court’s critical gatekeeping stage is perhaps one of the least well-understood aspects of how the Supreme Court goes about its business. Here’s a snapshot of how the conservative supermajority is using the Supreme Court’s docketing process to flex its muscle.
The court’s 6-3 conservative majority wants to go big
The Supreme Court has near total discretion over the cases it hears. This power is subject to the so-called “rule of four,” an informal rule stipulating that four or more justices must agree to grant an appeal.
This was not always the case. During its roughly first hundred years, the Supreme Court decided the merits of virtually all appeals within its jurisdiction, but over the course of its lifetime, justices have gained an increasing amount of control over the court’s caseload.
The present-day docket is now shaped according to the preferences of the justices, though certain factors — like the existence of conflicting decisions among intermediate appeals courts — make the justices more likely to take up a case. It’s worth noting that this procedure does not reflect the activity that occurs on an emergency basis under the court’s so-called “shadow docket.”
With a 6-3 conservative supermajority, the court has shown ample appetite to hand-pick bold slates of cases with the potential to move constitutional law very far and very fast to the right.
“Last term showed six conservative justices who have a very conservative agenda for the law and are aggressively implementing it,” said Erwin Chemerinsky, dean of the University of California, Berkeley School of Law. “I think we’ll see that again this year.”
Last term, the court chose to confront the constitutional right to abortion, which it scuttled; took on the Second Amendment, which it expanded; and chose to confront the federal government’s power to regulate the environment, which it narrowed. This term, the court is weighing voting rights, affirmative action in higher education and LGBTQ discrimination.
Of course, agreeing to hear a case is not the same thing as deciding a case. And the court has declined to hear a number of hot-button issues already this term, turning away a challenge to the ban on gun bump stocks and a push for the legal recognition of fetal personhood, for instance. It’s also worth noting that the court often issues unanimous opinions on below-the-radar legal disputes concerning civil procedure and other technical matters.
Still, court watchers have grown less tentative about predicting that the most politically divisive cases placed on the court’s docket will ultimately shake out along ideological lines.
While previewing the court’s new term, Irv Gornstein, executive director of Georgetown Law’s Supreme Court Institute, said last month that “there’s no reason to think this coming term, or any term in the foreseeable future, will be any different” from last term’s outcome.
“On things that matter most,” he said, “get ready for a lot of 6-3s.”
The new dynamic has left the court’s conservative supporters electrified.
The chief justice’s influence has waned
The conventional wisdom is that the conservative Chief Justice John Roberts, sensitive to the court’s standing among the public, prefers incremental rightward movement in the law to radical change.
But the addition of former President Donald Trump’s three nominees to the court means Roberts is now outflanked by five justices to his right who can form a majority without him.
An example of Roberts’s diminished authority arose last term in the Dobbs v. Jackson Women’s Health Organization, which struck down Roe v. Wade. Although Roberts agreed with the judgment in the case, his concurring opinion said he would have reached the judgment on much narrower grounds, using a rationale that would have preserved Roe while chipping away at the federal right to abortion.
But the court’s five most conservative justices — Clarence Thomas, Samuel Alito, Neil Gorsuch, Amy Coney Barrett and Brett Kavanaugh — had the numbers to disregard Roberts’s more measured approach. This five-member conservative majority opted instead to strike down Roe in a decision that was significantly more conservative than the views held by most Americans, according to public opinion polling.
Roberts does retain some procedural arrows in his quiver that he can use to rein in some of the court’s conservative impulses. For instance, Roberts wields control over which petitions the justices will discuss at their Friday conferences.
Another source of leverage resides in Roberts’s status as the court’s senior-most justice. This means when Roberts is in the majority in deciding a case, he chooses who will write the opinion.
But when the chief is not part of the majority — as in the Dobbs case — the duty of assigning the opinion-writing falls to the senior-most justice who is among the majority. In Dobbs, that justice was Clarence Thomas, who handed the pen to fellow hard-right conservative Justice Samuel Alito, whose opinion overruling Roe was criticized not only for its substance but for its defiant tone and potentially sweeping implications for other constitutional rights.
A weakened Roberts appears to have emboldened the court’s more conservative members to be more aggressive about the cases they select.
“It puts the four most conservative justices in a position where they can actually choose the legal vehicles for achieving whatever agenda they’re seeking to achieve,” said Steven Schwinn, a constitutional law professor at the University of Illinois Chicago.
Liberals have less power than in decades
With only three members, the court’s liberal justices lack even enough votes to satisfy the “rule of four” needed to add cases to the court’s docket without conservative support. The court does not typically disclose how the justices voted on a petition for appeal. But logic dictates that if a case was added to the court’s docket, it was not done so by the liberals acting alone.
The Supreme Court’s liberals, outnumbered 6-3 last term, repeatedly found themselves on the losing side of landmark rulings, which seems likely to continue going forward.
Increasingly, the liberal wing has used dissenting opinions as a platform for articulating the role of liberal judicial ideas in public life, to lay down a historical marker for a future court and to sound the alarm over the conservative-led legal upheaval. Dissenting from the court’s abortion ruling in June, liberal Justices Stephen Breyer, Elena Kagan and Sonia Sotomayor accused their conservative counterparts of sowing legal chaos.
It’s the culmination of a decades-long effort
The rise of the 6-3 majority marks the culmination of a decades-long effort by the conservative legal movement to take control of the bench.
Many conservatives are quick to blame Democrats for turning court battles into partisan warfare, pointing to the scuttling of Reagan-nominated judge Robert Bork’s nomination 35 years ago in a historical chapter that left deep wounds. Led by the Federalist Society and enabled by then-Sen. Majority Leader Mitch McConnell (R-Ky.), this grievance helped fuel a retaliatory campaign that shifted the court dramatically to the right over a generation.
An abridged version of what transpired since then includes the GOP’s norm-shattering “constitutional hardball” to block President Obama from filling the late Justice Antonin Scalia’s vacancy, as well as the death of Justice Ruth Bader Ginsburg, which allowed Trump to seat his third justice over the course of just a single presidential term.
The end result has been the reshaping of American law in a conservative mold, a project that continues apace in the court’s new term that began earlier this month.
Chemerinsky, of Berkeley Law, said he expects the court this term to eliminate affirmative action in both public and private colleges, further narrow the Voting Rights Act and allow violations of anti-discrimination law based on claims of free speech and free exercise of religion.
“Again, we’ll see dramatic changes in the law,” he said, “all in a very conservative direction.”