Joel Alicea earlier this summer wrote a fantastic piece in Public Discourse about the competing schools within conservative jurisprudence with respect to judicial restraint (I am just now able to digest it fully).

The old guard (Roberts in NFIB) take the view of Harlan’s dissent in Lochner.

 The reason Roberts does so is that his view of judicial restraint in NFIB v. Sebelius requires him to go to the limits of plausibility to save the statute. The dissenters, who express a different view of restraint, refuse to go that far.

The old conception of judicial restraint is evident in the chief justice’s theme that the Court is a legal—rather than political—body. At the beginning of his opinion, he is at pains to state: “We do not consider whether the Act embodies sound policies. That judgment is entrusted to the Nation’s elected leaders. We ask only whether Congress has the power under the Constitution to enact the challenged provisions.” Then, at the conclusion, almost identical language: “But the Court does not express any opinion on the wisdom of the Affordable Care Act. Under the Constitution, that judgment is reserved to the people.” Like the legal conservatives of the 1970s, the Roberts opinion emphasizes the modesty of the judicial role and the importance of deferring to legislative majorities.

Just as the old theory of judicial restraint came under intellectual attack, so too does Roberts’ opinion for the Court—and for the same reasons. The problem with the old theory of judicial restraint, so the critique goes, is that in straining to sustain the will of today’s fleeting majority, a judge may ignore a fairly clear constitutional command from the original popular sovereign: the people who enacted the Constitution. The more recent idea of restraint sees the old way as a straightforward abdication of a judge’s duty to safeguard the limits of political power. Where a law is unconstitutional, it must be declared so, and the judge who contorts a law to save it is viewed as engaging in the very activism he disclaims.

The modern view of conservative judicial restraint is on display in the dissenting opinion.

 This contemporary view of judicial restraint is on full display in the joint dissent. The four justices lambast the Roberts opinion: “The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching.” In a fascinating peroration, the dissenters appeal to the same values underlying the old version of judicial restraint, but they see it better expressed in their own willingness to jettison the healthcare law entirely:

The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty.

This conclusion sums up the thesis quite well:

The clash between the chief justice’s opinion and that of the joint dissenters is therefore best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.

Of course, Roberts and the joint dissenters have nuanced views on judicial restraint, and NFIB v. Sebelius does not define those views. Justice Scalia has long advocated judicial modesty and deference to legislative majorities, as seen in his dissent in Planned Parenthood v. Casey (1992), and the chief justice joined the Court’s opinion in Citizens United v. FEC (2010) in the face of heated political opposition. The point here is simply to identify the tensions within the conservative legal movement evident in the NFIB opinions.

The overwhelmingly negative response to the chief justice’s analysis shows just how far the movement has distanced itself from the old theory of restraint, embracing instead a view that cares less about how many statutes are struck down than about why they are invalidated. For the chief justice, his opinion is the epitome of judicial modesty. For the dissenters, it is the height of judicial arrogance. Roberts thinks his actions are compelled by respect for the coordinate branches of government; the dissenters see his actions as flouting the Constitution that called that government into being. And at this moment in the history of the conservative legal movement, Roberts stood alone.

I met Joel at a conference earlier this year. Keep an eye on him. He just started his second year of law school, but his level of thought on these topics is extremely advanced and sophisticated.