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9 Harv. L. & Pol'y Rev. 195 (2015)
Conservative Judicial Activism: The Politicization of the Supreme Court under Chief Justice Roberts

handle is hein.journals/harlpolrv9 and id is 195 raw text is: Conservative Judicial Activism:
The Politicization of the Supreme Court
Under Chief Justice Roberts
Senator Sheldon Whitehouse*
A troubling and unmistakable trend has developed over several de-
cades, 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.
Concern over the Court's activism is not limited to lawyers, advocacy
groups, and the partisan fray in Washington. Recent polling shows that less
than one-third of Americans have confidence in the Supreme Court.1 By two
to one, Americans think the Justices often let political considerations and
personal views influence their decisions.2 Americans massively oppose the
Citizens United decision (eighty percent against, with seventy-one percent
strongly opposed).3 And, most tellingly, by a ratio of nine to one, Ameri-
cans now believe the Court treats corporations more favorably than individu-
als.4 This is true even of those who identify themselves as conservative
Republicans, who agree with this sentiment by a four to one margin.5 Even
Linda Greenhouse, who has long resisted labeling the Justices partisan ideo-
logues, recently wrote that she is now finding it impossible to avoid the
conclusion that the Republican-appointed majority is committed to harnes-
sing the Supreme Court to an ideological agenda.'6 Other noted Court
* United States Senator representing the State of Rhode Island. Senator Whitehouse serves
on the Health, Education, Labor & Pensions Committee, the Budget Committee, the Environ-
ment and Public Works Committee, the Judiciary Committee, and the Special Committee on
Aging. On Judiciary, he serves as Ranking Member of the Crime and Terrorism Subcommittee.
He is grateful for the brilliant research assistance of his Judiciary team, particularly Lara Quint.
'Michael Muskal, Gallup Poll: Confidence in Supreme Court Falls to 30 Percent, L.A.
TIMES (June 30, 2014), http://perma.cc/6RQK-JHAU.
2 DEMOCRACY CORPS AND GREENBERG QUINLAN ROSNER RESEARCH, BROAD BI-PARTISAN
CONSENSUS SUPPORTS REFORMS TO SUPREME COURT (May 2014), http://perma.cc/SWJ6-
42GQ.
31d.
4 THE MELLMAN GROUP, INC., FINDINGS FROM RECENT POLLING ON THE SUPREME COURT
(May 2014), http://perma.cc/X2HA-BCXT.
51d.
6 Linda Greenhouse, Polar Vision, N.Y. TIMES (May 28, 2014), http://perma.cc/N3UF-
JUTG; see also Linda Greenhouse, Law in the Raw, N.Y. TIMES, (Nov. 12, 2014), http://perma

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