Off-Balance: How US Courts Privilege Conservative Policy Outcomes

A growing literature has challenged some of the more influential accounts regarding the role of courts in the development of social and economic policy in the United States. We highlight some of the more durable features of the American federal judiciary that together tend to privilege ideologically conservative outcomes on matters of politics and public policy. Situating the United States in a comparative perspective, we build our argument in three parts. First, we review interdisciplinary accounts documenting how institutional features of US courts—including the unusually strong powers of judicial review—can tilt outcomes in a conservative-leaning direction. Second, we document how these formidable powers interact with judicial selection processes that currently skew the composition of the judiciary in favor of conservative candidates. Third, we show how the combination of the two factors—institutional and compositional—biases federal courts’ interventions toward privileging conservative policy outcomes.