Off-Balance: The Structurally Conservative Nature of American Courts

• In Event: The U.S. Supreme Court in Contemporary Democratic Politics

Abstract

Popular explanations of the recent conservative victories at the Supreme Court often focus on proximate causes—whether the death of Justice Ruth Bader Ginsberg or the influence of interest groups in the Court’s confirmation process. By contrast, we highlight some of the more durable features of the American federal judiciary that result in a conservative bias. Situating the United States in comparative perspective, we build our argument in three parts. First, we highlight how institutional features of American courts – including the unusually strong powers of judicial review wielded by U.S. courts – are amplified by other characteristics of the American political system. Second, we document how these formidable powers interact with judicial selection processes that skew the composition of the judiciary in favor of conservative candidates. Third, we show how the combination of the two factors—institutional and compositional conservatism—biases federal courts’ interventions toward privileging conservative policy outcomes and maintaining the status quo.

Authors

• Brian Highsmith, Harvard University

• Maya Sen, Harvard University

• Kathleen Thelen, Massachusetts Institute of Technology