Much has already been said about the Supreme Court’s ideological divide — a divide that long predates the present moment. What is particularly worrying, however, is that over the past decade, the Court’s Republican appointees have voted almost uniformly against the expansion of LGBTQ+ rights in nearly every major case before them.

These appointments moved the Court from being precariously balanced to being firmly aligned with the right. Moreover, President Biden’s sole appointment — Justice Ketanji Brown Jackson (who replaced Justice Stephen Breyer) — did not alter the ideological balance at all. If, during his second term, Trump were to replace either Justice Clarence Thomas or Justice Samuel Alito, two of the Court’s oldest members, he would have appointed five sitting justices — an extraordinary level of influence in modern Supreme Court history.

It should be noted that this rightward turn was not accidental. Rather, it was the product of decades of sustained advocacy by leaders of the conservative legal movement — most visibly in the campaign to restrict abortion rights. This project not only reshaped the Court’s composition but ultimately led to the dismantling of the constitutional right to abortion itself.

Also central to this effort was opposition to the “living Constitution” doctrine, an approach commonly associated with jurists who have been more receptive to the expansion of LGBTQ+ rights. This approach understands constitutional meaning as evolving over time in response to changing social conditions. Instead, Trump’s appointees (and most, if not all, legal conservatives) overwhelmingly embrace “legal originalism” — an interpretive method that limits constitutional protections to those rights understood to exist at the time of the Constitution’s framing.

Apart from these limited exceptions, LGBTQ+ rights cases have been overwhelmingly fractured along ideological lines.

It is no secret that ideology plays a significant role in judicial decision-making at the level of the Supreme Court. The oft-invoked image of judges as neutral umpires — famously described by Chief Justice Roberts as officials who merely “call balls and strikes” — has increasingly come to resemble a constitutional myth.

While scholars continue to debate the precise role that ideology plays in judicial reasoning, it is clear that as LGBTQ+ issues become more socially and politically contentious, legal outcomes will increasingly be shaped by prevailing ideological currents. Legal reasoning — particularly in areas such as the scope of substantive due process and equal protection — is malleable enough to produce markedly different outcomes depending on a judge’s ideological commitments.

But this exception notwithstanding, it is quite clear that the future trajectory of LGBTQ+ rights before the top Court will depend less on neutral principles of law (if such principles can be deemed “neutral” at all) and more on which interpretive doctrines carry the most authority — and, by extension, the greatest number of votes on the bench, at any given moment. For LGBTQ+ advocates and allies, this scenario demands a clear-eyed understanding of what an adverse ruling in the upcoming transgender athletes’ cases can portend for the future of constitutional protections in the many other LGBTQ+ rights cases yet to come. That the likely outcome of most of these cases can be anticipated with relative certainty even before a judgment is delivered speaks volumes about the present state of the Court’s LGBTQ+ rights jurisprudence.

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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