Ideology and Instrumentalism in Test Case Litigation

"Test case litigation" defines judicial cases purposely brought before a court with the hopes of penetrating common law (laws established by legal precedent rather than legislative statute). Heavily based on strategy, test cases involve lawyers with a distinctly political agenda: activist lawyers deliberately manufacture controversy to bring cases before courts that would otherwise lack a justiciable dispute. Their goal is to secure a ruling on a specific issue, requiring careful selection of the case, jurisdiction, and timing to ensure the court's decision addresses their intended legal question. Test cases rely on the belief that issues framed as moral concerns will not be addressed through statutory law and must instead be resolved through common law, itself an implicit concession that public opinion, the foundation of statutory law, opposes the cause being advanced.

Greatly emerging during the Warren Court (1953 to 1969), test cases were the source of major decisions concerning school desegregation, reapportionment, and the rights of the accused. Specifically, test cases served as one of the largest tools used by activists to advance civil rights. Emblematic Supreme Court cases were completely manufactured: in Plessy v. Ferguson, civil rights groups recruited Homer Plessy, a one-eighth Black man, to sit in a whites-only train car, with a private detective hired in advance to arrest him and set the legal process in motion. While manufacturing litigation was initially illegal, this was overturned in NAACP v. Button (1963), where the courts ruled that manufacturing litigation is "a form of political expression." This legitimization set a powerful precedent. With a new tool now legally available, liberal political movements used test cases to expand women's rights, poor people's rights, and gay rights, each time turning to the courts precisely because prevailing public opinion would not have supported the outcome through the legislative process. Despite this unpopularity at the time, a vast majority of Americans today embrace these results in hindsight, which has historically been offered as the moral justification for bypassing democratic processes in the first place.

However, this justification grows more complicated when examined against the current political and judicial climate of the United States. The moral confidence underpinning test case litigation—the assumption that lawyers and judges together can identify what is right when the public cannot—sits uneasily alongside a judiciary that is increasingly and empirically politicized. A comparative study by David Weiden found the U.S. to be the most politically polarized judiciary among comparable democracies, far exceeding Canada and Australia. In highly politicized courts, judges are more likely to vote along ideological lines and engage in judicial activism, striking down legislation that conflicts with their personal or political leanings. Weiden's findings indicate that Supreme Court justices overwhelmingly align with the ideology of the executive who appointed them, making attitudinal decision-making a dominant force in judicial review. This shift was underscored by Donald Trump, during his first presidential term in 2016, and his explicit promise to appoint justices who would overturn Roe, revealing the overtly political motivations behind his Supreme Court nominations. The subsequent confirmation of Justice Amy Coney Barrett and the 2022 decision in Dobbs v. Jackson Women's Health Organization laid bare how nakedly political the Supreme Court composition—and by extension, the outcomes of cases brought before it—had become.

Creating contradictions via test cases in the past has been used to advance basic human rights that American society agrees upon in hindsight. However, today, we see the use of test cases shift from liberal hands to conservative ones. Conservative activist lawyer Ed Blum is the most prolific test case architect of recent times. Operating through his organization the Project on Fair Representation, Blum has brought eight cases to the Supreme Court since the 1990s, each a carefully constructed challenge to race-conscious policy framed as a defense of the right to be free from racial discrimination. In Fisher v. University of Texas (2013), Blum recruited Abigail Fisher, a white applicant rejected by UT Austin, to challenge the university's race-conscious admissions policy. While this case didn’t overturn affirmative action outright, it significantly narrowed its permissible scope and laid out the groundwork for his subsequent efforts. 

After Fisher, Blum openly acknowledged needing to reframe his litigation strategy, claiming he “needed Asian plaintiffs.” His solution was Students for Fair Admissions v. Harvard and UNC (2023) where he formed Students for Fair Admissions (SFFA) as a vehicle specifically to file litigation and recruited members before challenging the college admissions processes of both UNC and Harvard. This time, however, he claimed racial discrimination against Asian Americans. Critically, Blum also waited: he petitioned the Supreme Court only after Justice Ginsburg's death and her replacement with Amy Coney Barrett secured a solidly conservative supermajority, demonstrating the same careful timing relative to Court composition that has always defined test case strategy. The Court ruled 6–2 that race-conscious admissions were unconstitutional, effectively ending affirmative action in American higher education.

Test cases appealing to the personal moral outlooks of judges, in congruence with increased judicial partisanship, has dangerous implications for the role of judges in this country. Ultimately, whether utilized by liberal or conservative political agendas, the fact remains that test cases do not discriminate when it comes to bypassing popular public opinion. Thus, their use raises fundamental questions about democratic legitimacy and the role of the judiciary as a vehicle for moral and legal change outside the bounds of popular consensus.

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