Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts

To mark the release of Volume 9.1, Notice & Comment will be highlighting each of the articles in its own blog post. Today’s featured article: Senator Sheldon Whitehouse’s Conservative Judicial Activism: The Politicization of the Supreme Court Under Chief Justice Roberts. Senator Whitehouse (D-RI) writes:

A troubling and unmistakable trend has developed over several decades, and accelerated in recent years, of extreme judicial activism within the conservative bloc of Justices on the Supreme Court—reaching a new pinnacle under Chief Justice John Roberts.

The Court’s recent activism has advanced a pro-corporate agenda at the expense not only of injured Americans, but also of fundamental democratic institutions. The Court has exposed our elections to corruption and eroded fundamental protections, such as access to the ballot box. It has weakened the role of the civil jury, a constitutional institution intended to ensure equal- ity before the law and an important check in our unique American system of separated powers. The price of the Court’s corporate agenda has been high.

This is admittedly a harsh indictment of the conservative activists. The purpose of this article is to provide a bill of particulars supporting that charge—showing that the patterns to their decisions, and the strategies employed to achieve their results, suggest intentional and purposeful activism. This article will explore the means by which Chief Justice Roberts and the conservative bloc have furthered their agenda—including selective adherence to traditional conservative principles, advance strategic planning to shape policy, and a failure to promote consensus—and describe how the ends promote corporate and ideological interests at the expense of our democracy.

In light of the major issues before the Supreme Court right now, such as King v. Burwell on the subsidies in the Affordable Care Act, Senator Whitehouse’s concerns are especially relevant. Give it a read today!



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