In a July 10 article featured in the Witherspoon Institute’s online publication Public Discourse: Ethics, Law and the Common Good, Harvard Law School student Joel Alicea ’13 assesses “Chief Justice Roberts and the Changing Conservative Legal Movement” in light of the Supreme Court’s late June decision on the Affordable Care Act. In the article, which was cited in a July 11 commentary by Linda Greenhouse of the New York Times, Alicea asserts that “the clash between Chief Justice Roberts’ opinion and that of the joint dissenters is best seen as a clash between two visions of judicial restraint, and two eras of the conservative legal movement.”

Alicea has published articles in the National Review Online, National Affairs, Harvard Journal of Law & Public Policy, and the Loyola Law Review. He has a forthcoming article (with Dr. Donald Drakeman) scheduled for publication in the University of Pennsylvania Journal of Constitutional Law. At HLS, Alicea is president of the Harvard Federalist Society, a member of the law school’s Administrative Board and a research assistant to Professor John Manning. This summer, he is working at the Dallas office of Gibson, Dunn & Crutcher.

Chief Justice Roberts and the Changing Conservative Legal Movement

by Joel Alicea

At the sprightly age of 57 and less than seven years into his term as chief justice, John Roberts looks like a man whom time has left behind. The reaction among legal conservatives to the Roberts opinion in National Federation of Independent Businesses v. Sebelius (the healthcare case) has been brutal. Many have accused the chief justice of exchanging the black robes of the jurist for the trappings of the politician. The chief justice is said to have “blinked” and “failed [his] most basic responsibility.” Noted originalist scholar Mike Rappaport strongly implied that Roberts is “both a knave and a fool.” The cataloguing could go on.

As much as these reactions reveal about differing views on a hotly contested question of constitutional law, they are at least as interesting because of what they say about the state of the conservative legal movement. Today’s legal conservatives view the chief justice’s opinion as judicial abdication, but it was not too long ago that the philosophy reflected in Roberts’ opinion would have been conservative orthodoxy. The truth is that the conservative legal movement’s conception of judicial restraint has changed, departing from the view it held when it emerged from the constitutional wilderness to which it had been banished during the Warren Court. NFIB v. Sebelius displays a conservative legal movement in transition—and one that is increasingly leaving the judicial restraint in Roberts’ opinion behind. … Read the full article on »