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Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act

3 California Law Review Circuit 170 (2012)

14 Pages Posted: 12 Aug 2012 Last revised: 22 Oct 2012

Timothy P. O'Neill

John Marshall Law School

Date Written: August 10, 2012


Chief Justice John Roberts' deciding vote to uphold the Affordable Care Act surprised many court-watchers. This Essay looks at Roberts' ties to certain members of the American legal elite in an effort to understand his vote.

Even before he was nominated to the Supreme Court, Roberts named Felix Frankfurter and the second John Marshall Harlan as two of his judicial models. Both exhibited aspects of James Bradley Thayer's conception of judicial self-restraint; indeed, Frankfurter fancied himself as the person who taught Harlan about Thayer's theories. Harlan, in turn, had practiced in the same law firm with the legendary Second Circuit Judge Henry Friendly. Friendly considered Harlan one of the finest justices ever to serve on the Supreme Court. And to complete the circle, Friendly's law clerk in 1979 was a young man who had just graduated from Harvard Law School named John Roberts -- who, as noted, would later name Frankfurter and Harlan as his models.

This Essay examines the strands of judicial self-restraint that run through Roberts' recent decision. It compares this with similar approaches taken by Justice Harlan in several of his opinions. The Essay concludes by suggesting that the Frankfurter-Harlan-Friendly-Roberts connection may shed some light on the Chief Justice's view of the role judicial self-restraint should play in his work on the Supreme Court.

Keywords: Roberts, Thayer, Frankfurter, Harlan, Friendly, Posner, judicial self-restraint, legal theory

Suggested Citation

O'Neill, Timothy P., Harlan on My Mind: Chief Justice Roberts and the Affordable Care Act (August 10, 2012). 3 California Law Review Circuit 170 (2012). Available at SSRN:

Timothy O'Neill (Contact Author)

John Marshall Law School ( email )

315 South Plymouth Court
Chicago, IL 60604
United States

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