How Federal Courts’ Institutional Features Privilege Conservative Policy Outcomes

Courts in the United States exercise formidable institutional powers that are uncommonly broad in comparative perspective. As other scholars have suggested, the courts’ powers to suspend or nullify even major legislation, in whole or in part, are not equally useful across all political projects. Instead, these powers are most useful to political actors seeking to strike down legislative reforms or to limit government intervention in markets and society (e.g., Bagley Reference Bagley2019; Burke and Barnes Reference Burke and Barnes2024). As Burke and Barnes (Reference Burke and Barnes2024, 32) put it, US courts “are much better at gumming things up than they are at making things work.” This asymmetry has significant implications for the role that judicial review will tend to play within a political system.

A vast literature, from historical texts in political philosophy to contemporary public opinion research, conceptualizes ideological conservatism in the United States as being invested in limiting the size of government and government activity, with a particular focus on resistance to governmental involvement in the functioning of free markets.Footnote ² For example, a recent review identified the “unifying theme of all conservative ideology” as the attempt to forestall radical political and social change by “set[ting] limits to the scope of political action” (O’Sullivan Reference O’Sullivan, Freeden and Stears2013, 293–94; see also Jost, Federico, and Napier Reference Jost, Federico and Napier2009, 310, and McClosky and Zaller Reference McClosky and Zaller1987, 189). Closely related to modern conservativism’s “commitment to the limited state” (O’Sullivan Reference O’Sullivan, Freeden and Stears2013, 300) is the protection of existing economic, social, and political institutions. Samuel Huntington (Reference Huntington1957, 457), for instance, observed that the “characteristic elements of conservative thought … all serve the overriding purpose of justifying the established order.” Thus, following the literature, we take conservative policy positions to be ones that prioritize constraining the role of government, particularly so in terms of the market. In turn, these policy positions tend to protect established power, economic, and social hierarchies, although not always. As Huntington (455) writes, “The essence of conservatism is the passionate affirmation of the value of existing institutions.”

Recent accounts have highlighted how these goals can be facilitated by a branch of government well suited to suspending or nullifying government policy or legislation. For example, writing about judicial review in the context of federal administrative law, Bagley (Reference Bagley2019, 346) observes, “Increasing the stringency of judicial review for new agency regulations … will tend to aid those who have the most to lose from government action” while “curbing judicial review will help those who stand to gain.” He goes on to suggest that institutional designs that serve to restrain the state will tend to operate, on net, as “more congenial to a libertarian agenda than a progressive one” (360). Other scholars have underscored the distinct partisan valence of these institutional dynamics. Whittington (Reference Whittington2005, 584), for example, notes that “judicial review is likely to be more useful to some political coalitions than others, depending in part on their substantive agenda and in part on the extent to which they have been able to define the status quo.” Most recently, Burke and Barnes (Reference Burke and Barnes2024, 42) argue, “Given that it is conservatives, not liberals, who are more often interested in constraining the government, this makes [the courts] a more congenial policy tool for Republicans than Democrats.”

Many Americans now take for granted judicial supremacy—that the Supreme Court has the final word on constitutional meaning and that other branches must follow its interpretive authority—as a foundational characteristic of the American system or an inevitable feature of democratic governance. But this institutional arrangement was not provided in the text of the US Constitution; it was initially assumed by courts and then politically contested over time (Whittington Reference Whittington2009). As summarized by Ross (Reference Ross1993, 5), “The power of judicial review was a distinctly American innovation, and the United States has remained the nation in which this power is most potent.”

Comparative analysis has revealed that this design feature is by no means neutral in its effects. At the broadest level, this judicial power primarily takes the form of an institutional veto, enabling courts to strike down policy that has successfully navigated legislative or regulatory processes. An extensive cross-national literature “supports the idea that status quo bias induced by veto points limits redistribution, undermines welfare-state generosity, and exacerbates inequality” (Kelly and Morgan Reference Kelly, Morgan and Hacker2022, 56).Footnote ³ Stepan and Linz’s (Reference Stepan and Linz2011) comparative analysis of the impact of multiple veto points shows that the US system places more barriers in front of efforts to reform policy than that of any other rich democracy, a factor they point to in explaining high levels of inequality in the United States (see also Birchfield and Crepaz Reference Birchfield and Markus1998). The fact that their tally of veto points does not even include the courts only reinforces the argument, because as Tsebelis (Reference Tsebelis1995, 307) points out, “Requiring the agreement of the courts for certain legislation is equivalent to adding another chamber to the legislative process.”Footnote ⁴ Other studies of postindustrial democracies have documented a similar relationship between institutional veto points and various measures of governmental efforts to reduce economic inequalities associated with market liberalism (Crepaz and Moser Reference Crepaz and Moser2004; Immergut Reference Immergut1992; Stephens and Huber Reference Stephens and Huber2001).

These results help clarify which policy goals and associated ideological coalitions may be most likely to benefit—on net and over time—from a distinctive judicial veto that operates within a constitutional system already characterized by an unusually high number of veto points. As Kelly and Morgan (Reference Kelly, Morgan and Hacker2022, 55) observe, multiple veto points and other structural biases against democratic change ultimately privilege elites “who controlled or limited policymaking options in the past”—such that “maintaining the status quo preserves the preferences of those who constructed existing institutions and policy legacies.” Thus, institutional design features such as judicial review can often hobble the ability of representative policy-making bodies to respond to democratic demands for economic, social, or political change—and, by extension and in the aggregate, work to privilege conservative goals.

Of course, the institutional power of judicial review is not unique to the United States, but the American system of judicial supremacy is far from a universal feature of contemporary democratic governance.Footnote ⁵ Some peer common-law countries such as the United Kingdom and New Zealand do not have a written constitution and thus also lack formal judicial review in the broad sense that this term is usually understood in the United States.Footnote ⁶ In other countries where the principle of parliamentary supremacy fuses executive and legislative powers, courts have traditionally been assigned a subordinate function. The Netherlands represents perhaps the strongest surviving version of this model in Europe. There, the constitution expressly prevents the High Court from reviewing the constitutionality of acts of parliament (Lijphart Reference Lijphart1999), although the Dutch are now outliers in this regard within the European Union and are considering reforms to introduce judicial review (Schyff Reference Schyff2020).

In other European countries, high courts have grown more powerful in the postwar period, but parliamentary supremacy has often still meant that the judiciary exercises these powers with restraint. For instance, Iris Nguyen Duy (Reference Duy2015, 18) describes the behavior of the courts in Scandinavia as characterized by “judicial reluctance,” although she also notes that the growing influence of European law has generated some movement toward less reticent courts.Footnote ⁷ Japan presents an extreme example of judicial self-restraint: however, in this case it is the political hegemony of the Liberal Democratic Party and its subtle dominance in shaping the composition of the judiciary that have rendered the court so cautious that it almost never challenges the government (see, especially, Law Reference Law2009).Footnote ⁸

Other wealthy Western states—especially federal states such as Germany and Canada—provide examples of strong judicial review of legislative action. However, the role of the apex court in such systems is different and often more circumscribed than in the United States. Lijphart’s (Reference Lijphart1999) comparative analysis of 36 democracies suggested that, when it comes to the power of judicial review, only Germany’s Federal Constitutional Court even approaches the US Supreme Court in its power. Germany’s High Court (Bundesverfassungsgericht) can and does indeed strike down legislation. But negative rulings often either inspire a search for compromise between the conflicting interests in a particular case or trigger a back-and-forth with the legislature to shape the contested legislation in ways that align with existing constitutional principles (Greene Reference Greene2021; Sweet and Cananea Reference Sweet and Cananea2021, 1551–52). In sum, alongside greater deference toward popularly elected legislatures in most parliamentary democracies, even countries that allow for judicial review often rely on practices that depart from the “traditional and binary American model of simply declaring whether a law is constitutionally valid or not,” in some cases by adopting a more reflexive approach “to coax state organs to a consensus or optimal result” (Langford and Berge Reference Langford and Berge2019, 215).

Equally important, judicial review elsewhere is typically more centralized, and this feature contrasts especially sharply with the United States, where even lower-level federal trial courts are able to issue rulings immediately striking down national-level policies. Again, this institutional power privileges outcomes that constrain government action—and thus can be used more effectively by conservatives, who are more likely to prioritize constraining government action (as compared to social and economic reformists). In 2018, for example, a Republican-appointed federal district judge sitting in Fort Worth, Texas, ruled that the Affordable Care Act was invalid in its entirety. In 2022, a different Republican-appointed federal district judge—from the same Fort Worth court—struck down President Biden’s plan to cancel billions of dollars in outstanding student debt. In 2023, yet another Republican-appointed federal district judge elsewhere in Texas ordered the withdrawal of the abortion medication mifepristone from the nationwide market, suspending the Food and Drug Administration’s regulatory approval 23 years after it had been issued. It is difficult to identify examples of such consequential rulings from individual lower-court judges in any other wealthy democratic country.Footnote ⁹

In addition, although it is possible for the government to appeal an injunction, the hemorrhaging may in the end be fatal to a piece of legislation. For example, a 2024 review by the editors of the Harvard Law Review notes,

Of course, there are similar accounts of district judges striking down conservative policies or of courts expanding government powers.Footnote ¹⁰ For example, several of President Trump’s immigration policies were famously enjoined by district courts in Hawaii and California. Additionally, as Melnick (Reference Melnick1983, Reference Melnick1994) has demonstrated, there are cases where the judicial role of statutory interpretation has been used to “enlarge programs created by other branches of government” (1994, 17) through institutional reform litigation. For example, Melnick (Reference Melnick1983, 3) examines judicial oversight of air pollution regulation during the 1960s and 1970s and concludes that “far from constraining the growth of governmental power, court decisions led to further increases in the size of governmental programs.”Footnote ¹¹ But such counterexamples are not inconsistent with our suggestion that the aggregate net consequence of such institutional designs is to bias policy making against the forms of legislative change that conservative coalitions are more likely to oppose. After all, and as noted earlier, scholars have documented consistent and predictable biases in policy making where legislative veto points stymie progressive goals.

Moreover, the power of judicial review as a policy tool must be considered in light of other features of the US political and institutional landscape. It would be one thing if American courts’ interventions in political matters could be revisited and potentially revised or rebuffed by other actors. But due to the high hurdles to formal amendment of the Constitution and the proliferation of veto points, the Supreme Court’s word—both on constitutional matters and on statutory meaning—is generally final on many contested issues. This is often the case for extended (often indefinite) periods and even where its rulings are deeply unpopular among the voting public.

On this point, consider, first, the formal amendment mechanism (found in Article V of the US Constitution). In a review of constitutional amendment mechanisms in 32 written national constitutions, Lutz (Reference Lutz1994) finds that the US Constitution is the most difficult to amend. A glance at the timeline of constitutional amendments in the United States and other advanced countries highlights the extent to which the United States is an outlier in terms of the rarity with which it revisits its constitution (see https://comparativeconstitutionsproject.org/chronology/). Thus, one underappreciated consequence of the myriad hurdles specified in the Article V amendment process is that the site of collective decision making about contested fundamental rights is shifted to an unelected tribunal of nine that requires only a simple majority. These constraints mean, institutionally, that laws that are struck down as unconstitutional may not be so easily reimagined or reinstituted. This feature again will tend to favor the interests of those coalitions that generally seek more limited government or whose interest lies in blocking legislative reforms.

In many ways the court whose powers most resemble those of the US Supreme Court is the European Court of Justice (ECJ).Footnote ¹² As with the Supreme Court, the ECJ’s power to authoritatively interpret the provisions of the EU’s founding treaties (which serve the same functions as national constitutions and are even more difficult to amend)Footnote ¹³ lies beyond the reach of the democratically elected legislatures of the member states; it is also unchecked by the weak European Parliament (Manow and Schmidt Reference Manow and Schmidt2023; Scharpf Reference Scharpf2017, 316–17). The resulting lack of democratic control and accountability has been one of the factors contributing to the EU’s “democratic deficit” and the associated legitimacy crisis.

Although the powers discussed so far are permanent features of the US institutional landscape, other, more temporal factors also play a role. For example, polarization between the Democratic and Republican Parties in other branches of government also enhances the power of the courts by making it difficult to assemble the supermajorities needed to substantively “correct” the Supreme Court’s interpretation or overturning of important legislation. In principle, Congress always has the power to revise the Court’s interpretation of a federal statute by amending it or by passing a new law. Hasen (Reference Hasen2012), however, shows that political gridlock also magnifies the role of the Supreme Court on matters of statutory interpretation. His work documents a dramatic drop in congressional overrides of the Supreme Court’s statutory interpretations since 1991 and shows that override activity basically stopped in 2009—concluding that, under current conditions of gridlock and polarization, “the Court’s word on the meaning of statutes is now final almost as often as its word on constitutional interpretation” (209). To be sure, gridlock is best understood as the interaction between the enduring institutional arrangements described earlier and variable political dynamics (including most consequentially polarization) that wax and wane over time. But this dynamic nevertheless reflects structural features of our institutional arrangements, with direct consequences for the role of courts in policy making.Footnote ¹⁴

This has the effect of empowering an institution that, as we noted, is especially well equipped to overturn legislation and thus act to constrain active government. As an example of this dynamic, consider the Voting Rights Act (VRA) of 1965. Introduced into Congress following the deadly repression of voting-rights marches from Selma to Montgomery, bipartisan legislative majorities overcame the threat of a southern filibuster to enact the law by a final vote of 79–18 in the Senate and 328–74 in the House. As described by Mickey (Reference Mickey2015, 260), this landmark enactment, in conjunction with the Civil Rights Act of 1964, “brought on the death blows” to the authoritarian rule that characterized the Jim Crow South. The VRA subsequently was reauthorized and amended five times—on each occasion by large bipartisan majorities, including most recently in 2006 when it passed the Senate without a dissenting vote (98–0). But in 2013, in Shelby County v. Holder, the Supreme Court invalidated the law’s geographic coverage formula—effectively abrogating its requirement that covered states and localities receive federal “pre-clearance” before making changes to their voting laws and practices. Efforts to reauthorize the legislation have been unsuccessful, blocked even under periods of unified Democratic rule by the threat of Republican filibuster.

The finality of Supreme Court decisions represents an important aspect of American courts’ power, but its importance is sometimes overlooked. In some cases, as Tsebelis (Reference Tsebelis2002, 223) observes, political decisions in the United States are “delegated to courts because the political system is unable to legislate on the issue.” In such instances, he continues, “In the United States the Supreme Court decided on several extremely important issues that in most other countries would have been the prerogative of the legislative branch” (223). And of course, kicking an issue to the Supreme Court can be strategic: as Whittington (Reference Whittington2005) and others have emphasized, politicians may prefer to give courts the final say on contested issues, especially where the probable outcome aligns with their own goals. The important point is that when courts opt to strike down a statute, they are doing more than shifting it back to the political branches: in practice, they are wielding what is in effect a final super veto.

Lastly, federal courts operate as a powerful veto player within the US system in large part because of the power to strike down legislation and amend the public meaning of constitutional law, both by a simple majority vote. But an important feature of their power derives from the interaction between their affirmative authority and the fact that other bodies and the people themselves cannot easily do the same. Whereas the process for enacting legislation requires multiple successive moments of consensus from different actors, the Supreme Court can act swiftly with a bare five-person majority. This can be especially convenient for minority interests who oppose popular legislation and who seek to preserve the traditional status quo. By outsourcing to judges the task of striking down these policies or limiting their (and thus government’s) reach, such interests can achieve their objectives while avoiding electoral backlash—offloading the task to a handful of individuals isolated from public accountability, whose constitutional decrees are unreviewable by the political branches that will bear most of the blame for possibly unpopular retrenchments.

How Judicial Selection Mechanisms Tend to Privilege Conservative Policy Outcomes

In addition to the permanent features of US courts that make them asymmetrically useful to those pursuing conservative policy outcomes, other features of federal institutional design and characteristics of the contemporary American political landscape result in judicial composition that is distributed asymmetrically across the parties—and in a manner that privileges conservative judicial appointments. In other words, federal judges tilt to the right, relative to the electorate at large, and this is a pattern that, although temporal and tied to current political forces, is fairly durable.

A key reason has to do with the judicial selection procedures that again make the United States an outlier in comparative perspective. Appointments to the federal bench—and to the Supreme Court in particular—are intense partisan battles, increasingly accompanied by vigorous (and expensive) campaigning by well-resourced outside interest groups (Cameron et al. Reference Cameron, Gray, Kastellec and Park2017; Rahman and Thelen Reference Rahman, Thelen and Hacker2022; Vogel and Goldmacher Reference Vogel and Goldmacher2022). This kind of overt politicization of the judicial selection process contrasts sharply with Europe, where seats on the bench are more often a matter of rigorous civil service education and testing, internal promotion, and appointment by special neutral judicial bodies (Kagan Reference Kagan2019, chap. 1, esp. 8, 12). In the United Kingdom, for example, a special judicial appointments commission is charged with reviewing applications to High Court appointments and making a recommendation to the Lord Chancellor. Although a political appointee, the Lord Chancellor is limited in the extent to which she or he can veto candidates that the committee puts forth. Moreover, when the nomination is forwarded to the prime minister, he or she is obliged to pass the recommendation on to the monarch for formal approval (Millhiser Reference Millhiser2019). The process is similar in Denmark and Sweden, where independent expert panels manage the nomination and interview processes before forwarding their recommendations to the government for final approval.

In other countries, the appointment process is more political but generally far less politicized. In Germany, for example, the legislature is more directly involved in judicial selection because nominations come from commissions established in each of the parliamentary chambers (with proportional representation by the parties). Importantly, however, confirmation requires a two-thirds supermajority, which has effectively blocked the appointment of ideologically extreme candidates.Footnote ¹⁵ Politics also plays a role in appointments to the High Court in France, where the president, the leader of the National Assembly, and the president of the Senate are empowered to (each) nominate three of the nine seats on the High Court. There, however, political conflicts over the appointment process are blunted somewhat by the fact that judges are not appointed for life (instead, for nonrenewable nine-year terms). A regular and predictable appointment schedule—one-third of the High Court’s members are replaced every three years—ensures that successive democratically elected governments will have their own chance to shape the Court’s composition (Morton Reference Morton1988, 98–99).Footnote ¹⁶

By contrast, the prize of appointing judges with lifetime tenure, combined with political (as opposed to expert) control over federal court appointments in the United States, encourages the politicization of the appointments process. Indeed, as Bonica and Sen (Reference Bonica and Sen2020) have documented, there are substantial ideological differences in judicial composition resulting from judicial selection via merit commissions versus selection via the executive appointment system used in the federal courts. Because merit-based selection mechanisms—of the sort used in several states and in other countries (e.g., Denmark and Sweden, as noted earlier)—rely on lawyers’ involvement in initiating or approving recommendations, such processes tend to reinforce the preferences of the legal elite, which, in the United States currently leans less conservatively than the general public (Bonica and Sen Reference Bonica and Sen2020; see also Fitzpatrick Reference Fitzpatrick2009).

By contrast, executive appointments will return a judicial composition that largely reflects the preferences of the president and those who must provide “advice and consent”—in the federal context, members of the US Senate. These officials, anticipating that rulings will tend to follow from ideological preferences and that the party of the appointing president accurately predicts rulings (Segal and Spaeth Reference Segal and Spaeth2002), are incentivized to choose ideologically like-minded individuals. Thus, federal courts largely track the composition of federal-level political actors, specifically those of presidents and senators (see Bonica and Sen Reference Bonica and Sen2017; Reference Bonica and Sen2020).

Although they are temporal and dependent on which party holds the presidency and controls the Senate when appointments to the Supreme Court are made, these arrangements introduce a conservative bias in judicial composition that is not only detectable but also quite enduring, given that appointments are for life. There are three reasons for this bias. First, the structure of the electoral college has resulted in two presidential elections (in 2000 and 2016) won by more conservative candidates who lost the popular vote. Second, smaller and more rural states wield power in the Senate that is disproportionate to their populations; this currently tips the body that is formally charged with confirming these appointments in a more conservative direction than the national electorate (Rodden Reference Rodden2019, 2). As Zoffer and Grewal (Reference Zoffer and Grewal2020) have recently demonstrated, this has led to a modern phenomenon of “minoritarian” judges who were selected by a president and then confirmed by a Senate that each lacked popular-vote support. Lastly, as another temporal factor, note that, as Senate Republicans have shifted to the right—as part of broader trends in asymmetric partisan polarization—this has translated into shifts to the right in Republican judicial appointments as well (shown by Bonica and Sen Reference Bonica and Sen2021). Evidence shows that Supreme Court justices are to the right of the average US voter and are more closely in line with the average Republican voter (Jessee, Malhotra, and Sen Reference Jessee, Malhotra and Sen2022). These are not permanent or institutional features, and the political landscape could, of course, shift, but all accounts point to these factors contributing to a durable, right-leaning compositional skew.

In terms of international comparisons, the closest comparator to the United States is Japan. In that case, as David Law (Reference Law2009, 1545–46) has argued, institutional features combine with the political hegemony of the dominant conservative party, the Liberal Democratic Party, to “disguise” the party’s influence by “delegating political control of the judiciary to ideologically reliable agents within the judiciary itself” in ways that have given the (formally independent) High Court a decided, long-standing conservative slant. Note, however, the very different mechanisms driving the outcome in the two cases: in the Japanese case, the conservative tilt ultimately stems (as Law argues) from the almost uninterrupted rule of the Liberal Democratic Party for longer than the past half-century. In the United States, where the Republican Party does not enjoy the same dominance, the conservative tilt in the Court is a function both of the current trends in party dynamics and of the specific institutional features just discussed that together give conservative interests disproportionate power over the appointment and confirmation processes.

Implications for Existing Scholarly Frameworks of Judicial Power

Understanding these forces and how they interact helps explain a key puzzle: If US courts indeed wield such unusual power, why have many influential accounts arrived at the opposite conclusion—that they are primarily “constrained” in their ability to independently effectuate significant policy change? We contribute to an emerging literature documenting the ideologically asymmetric policy consequences of judicial review by connecting the two factors we discussed: (1) strong veto powers interacting with legislative and constitutional counter-majoritarianism and (2) a conservative bias in judicial selection to the federal bench. These powers, wielded by a conservative judiciary, are particularly effective in blocking reforms that aim to expand the government’s role in challenging traditional hierarchies of social and economic power and in addressing economic inequalities or problems generated by market forces. Thus, these two factors powerfully interact to tilt judicial outcomes in a conservative direction in a more enduring way than typically acknowledged.

Because so many influential accounts of courts’ power have generalized from assessments of their ability to advance progressive goals, like school integration and gay marriage, scholars have drawn incorrect conclusions about the degree to which courts can independently influence policy outcomes. Recall, in this context, Rosenberg’s (Reference Rosenberg2008, xiii) description of his research question as understanding the degree to which courts are constrained in their ability to “produce liberal change.” His classic account considered the extent to which the judiciary might be a vehicle for overcoming American politics’ stubborn resistance to large-scale, redistributive efforts or efforts oriented toward equality for historically disadvantaged groups.Footnote ¹⁷ Based on an analysis of significant decisions such as Brown v. Board of Education (1954) and its progeny, his conclusion is that whatever hope the Court offers to social reformers is ultimately “hollow” because its impact on policy outcomes is minimal, especially compared to that of the elected branches.

Many researchers—correctly observing that social welfare expansions tend to come from legislatures rather than courts—have extrapolated from this finding to make fairly broad statements about courts’ power to effect policy change generally. Such reasoning, however, obscures what may be the most important role of courts in the development of our social protections—which is not as an originator of reform but rather as a reliable and powerful obstacle both to their initial success and to their endurance over time. Revisiting his classic account in 2023, Rosenberg (576) observed that American courts “are not symmetrically constrained from furthering both progressive and conservative ends … because, typically, progressive litigators are asking the courts to require institutional change while conservatives are supporting the status quo.” In short, we join Rosenberg and other emerging accounts that emphasize that a “constrained” Court—one that can strike down legislative enactments but not promulgate them effectively—is constrained primarily in one ideological direction.Footnote ¹⁸ Its extraordinary powers to veto or circumscribe legislation means that the judiciary can, indeed, be very effective in furthering outcomes, but these outcomes are primarily ones that limit the reach or scope of government—and these tend to be more in concert with conservative policy goals. This is the case even as its ability to secure progressive goals is, as Rosenberg’s classic account identified, constrained.

Our argument also can be distinguished from alternate accounts that emphasize American courts’ dynamic power. Consider, for example, Kagan’s (Reference Kagan2019) seminal argument of “adversarial legalism,” which highlights the unusual degree to which American legal processes replace what in other countries are typically handled by regulatory agencies. Kagan’s argument has profoundly shaped how political scientists view policy implementation in the United States and has drawn attention to some of the negative externalities of American reliance on adversarial legalism (e.g., socially wasteful litigation costs). However, he largely sidesteps discussion of how adversarial legalism might introduce an ideological bias into the outcomes of such litigation, focusing instead on distortions to its process. He observes, for example, that often “adversarial legalism produces generally desirable outcomes but at a disturbingly high price in time and money” (Reference Kagan2019, 38) and stipulates that “often it produces a difficult-to-evaluate-or-agree-upon mix of costs and benefits” (39).Footnote ¹⁹

Although we join Kagan in his emphasis on the uniqueness of America’s system of regulation through adversarial litigation and judicial decision making, we depart from the ideological neutrality he assigns to this system with respect to substantive outcomes. Instead, we emphasize that what Kagan describes as adversarial legalism—and the central role of courts in resolving conflicts of all sorts, including political—is hardly outcome-neutral in two important ways. First, by setting bounds on the administrative state itself (and instead prioritizing regulation via litigation), adversarial legalism reduces the ability of governments to engage in regulation across substantive arenas and tilts the playing field toward organized groups that command the resources necessary to pursue their political goals through expensive and drawn-out litigation (Rahman and Thelen Reference Rahman, Thelen and Hacker2022). If we understand the conservative position to be one of minimal government regulation, particularly in constraining the interests of capital, then adversarial legalism will more often than not privilege these outcomes.

Second, adversarial legalism slows down such regulation: even in instances where regulation moves forward, judicial review of administrative actions means that it can still be stalled in litigation, in some instances indefinitely. This is why regulatory arbitrage (“moving fast and breaking things,” including the law) has been such a powerful mechanism through which firms have been able to create “facts on the ground” before regulators can react (Hacker et al. Reference Hacker, Hertel-Fernandez, Pierson, Thelen and Hacker2022; Pollman and Barry Reference Pollman and Barry2017). As Burke and Barnes (Reference Burke and Barnes2024, 42) note, “The predominant tendency in adversarial legalism, with its multiple access points for contesting government policies is to slow things down, not speed them up; to block government actions rather than to initiate them.” By favoring policy inaction, these features again privilege conservative or small-government policy positions.

Moreover, to the extent that litigation results in administrative involvement by the judiciary, this calls into play the compositionally conservative nature of the courts—and the US Supreme Court in particular. On this last point, the Supreme Court’s recent overturning of the Chevron administrative law doctrine has the potential to submit many areas of federal regulation to the scrutiny of a conservative-leaning Court. Indeed, the rise and fall of the Chevron doctrine—which mandated judicial deference to federal agencies’ interpretation of congressional statutes—aptly illustrate this point. As Craig Green (Reference Green2021, 633) has described, the original case emerged in 1984 from efforts by “conservative political leaders” during the Reagan Administration “to use [agencies’] interpretive authority to implement deregulatory policies immediately without new federal legislation.” Yet, four decades later—with Republicans having lost the popular vote in seven of nine subsequent presidential elections while also appointing a six-justice supermajority onto the Supreme Court—the Court significantly curtailed the doctrine’s application and eventually overturned it altogether during the 2024 term (Loper Bright Enterprises v. Raimondo). Following this ruling, federal agencies are no longer entitled to deference in their interpretations of statute, a switch that could potentially bring significant amounts of administrative regulations under increased judicial oversight. One prominent Republican, former Senate majority leader Mitch McConnell, called the dismantling of Chevron “far and away the most important, most consequential thing I’ve done during my time as leader” (Brugger Reference Brugger2024).

Our argument also implicates other influential frameworks explaining the role of courts in American politics, including Dahl’s (Reference Dahl1957) classic treatment. We find much in common with Dahl’s underlying premise that the US Supreme Court operates as a political institution, rather than simply a forum for mediating legal disputes. Like Dahl, we similarly emphasize how “a court can and does make policy decisions by going outside established ‘legal’ criteria found in precedent, statute, and constitution” (278). Even more directly, we conceptualize our research question in near-identical terms, by asking, just as Dahl did, “What groups are benefited or handicapped by the Court and how does the allocation by the Court of these rewards and penalties fit into our presumably democratic political system?” (281).

But we arrive at a different answer. Dahl (Reference Dahl1957, 285) argues “that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” On this view, disagreements in outcomes between the Court and other branches and the public at worst reflect a temporary lag before interbranch alignment is again achieved. Although this assumption resolves the democratic dilemma that Dahl identifies, recent patterns in party polarization have translated into a more pronounced rightward shift in judicial appointments and in elected judges. Indeed, recent research reveals that the Supreme Court is sharply out of step with mainstream public opinion (Jessee, Malhotra, and Sen Reference Jessee, Malhotra and Sen2022). Other work projects this rightward hold on the Supreme Court as lasting roughly until 2085, given “the status quo of nomination politics” (Cameron and Kastellec Reference Cameron and Kastellec2021). This pattern, in tandem with the institutional features that enable courts to strike down—but generally not to buttress—legislation, results in a Court that is more useful for pursuing conservative policy outcomes. As recently summarized by Baumgardner and TerBeek (Reference Baumgardner and TerBeek2022), “Today’s Supreme Court is not a Dahlian court, and it is not part of a dominant national alliance. Instead, it is allied to a specific political project set forth by modern movement conservatism” (149).

Relatedly, an important line of scholarship in the legal academic literature cites democratic justifications in defense of the expressly counter-majoritarian nature of judicial review. Most prominently, Ely’s (Reference Ely1980, 8) Democracy and Distrust argues that the aspirational task of constitutional law “has been and remains that of devising a way or ways of protecting minorities from majority tyranny that is not a flagrant contradiction of the principle of majority rule.” To be sure, judicial review can be and has been used to strike down long-standing legislation that reinforces traditional hierarchies of power, as courts did in many of the most closely studied (and widely celebrated) exercises of this power. However, as Doerfler and Moyn (Reference Doerfler and Moyn2022) note, this sanguine view of the role of the courts is premised on the “empirical conjecture” that the judicial veto will tend to protect vulnerable minorities who are excluded from the political process. But a longer view of history—and the institutional dynamics we describe—suggest that this conjecture is questionable. To the contrary, and as Bowie (Reference Bowie2021) points out, “As a matter of historical practice, the Court has wielded an antidemocratic influence on American law, one that has undermined federal attempts to eliminate hierarchies of race, wealth, and status.” Our argument provides a more comprehensive explanation for Bowie’s historical observation. To the extent that “minority” interests are reliably protected, they will be entities whose interests are best served by minimal government intervention and by the slowing down or blocking of the legislative process (Burke and Barnes Reference Burke and Barnes2024)—which by and large will dovetail with outcomes favored by conservatives.

In turn, this has implications for the Court’s legitimacy itself. As shown by Bartels and Johnston (Reference Bartels and Johnston2013), Jessee, Malhotra, and Sen (Reference Jessee, Malhotra and Sen2022), and others, the more the Court drifts away from the preferences of the public—that is, the more there is ideological disagreement—the more the legitimacy of the Court will be called into question. Thus, although these are temporal patterns, we are not surprised to see a decline in feelings of legitimacy toward the Court among left-leaning citizens that has corresponded with the rightward shift in the Court’s rulings (Jessee, Malhotra, and Sen Reference Jessee, Malhotra and Sen2022), which in turn, has been driven by the forces we describe here.