The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

What Would An Actual 6-3 Conservative Court Have Done This Past Term?

Fewer relists, more grants, and far more Kagan dissents.


The Supreme Court may have 6-3 conservative majority on paper. But in reality, there is more of a 3-3-3 split. If the Court actually had a 6-3 conservative majority, the past term would have been very different. Consider a few counterfactuals.

  1. The Court would have overruled Smith in Fulton, and GVR'd Ricks.
  2. The Court would have granted Dobbs in November 2020 without narrowing the QP, heard arguments in March 2021, and already overruled Whole Woman's Health. Then the Court would have GVR'd Cameron.
  3. The Court would have granted review in Small v. Memphis Light, Gas & Water in October, and would have already overruled TWA v. Hardison.
  4. The Court would have granted NYS Rifle & Pistol without narrowing the QP.
  5. The Court would have granted Students for Fair Admission without a CVSG.
  6. The Court would have granted review in Texas v. California, the original jurisdiction case that challenged the Golden State's "travel ban."

Justice Kagan would have been very busy churning out dissents.

I'm sure there are other examples. But these suffice to illustrate what a 6-3 conservative Court will actually have done. Yet, I suspect even after this lukewarm Term, advocates for Court "reform" will still rail against the arch-conservative Roberts Court. In their dreams.