O'Neill on Roberts's Thayerian Justice

Check out Prof. Tim O'Neill's (John Marshall) excellent piece in the Cal. Law Review on Chief Justice Roberts's approach to deference in the Obamacare case, NFIB v. Sebelius: Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act.

O'Neill notes that "Chief Justice Roberts has never been shy about finding acts of Congress to be unconstitutional," but that he nevertheless extolled the virtues of deference to the legislature and ultimately upheld the individual mandate in NFIB. O'Neill asks: Where did this "newly minted Thayerian justice" come from?

This essay will attempt to answer that question. It will begin by further examining Posner's article and the reasons he provided for the death of Thayerian review. It will then turn to an examination of one justice in particular whom Chief Justice Roberts has cited as his model: the younger Justice John Marshall Harlan, perhaps the last justice on the Court who exhibited Thayer-like restraint. It will conclude by contending that when faced with the most important case of his judicial career, Roberts took a Thayer-like approach that might have been similar to the approach his judicial model, Justice Harlan, would have taken. Thayer-like restraint may be dead, but it appears to have come back to life for at least one decision on June 28, 2012.