Jonathan Adler makes a lot of sense: “I can’t speak to how the Chief Justice interacted with his colleagues on the Court during the deliberations in NFIB v. Sebelius, or to whether he truly flip-flopped on the mandate or (as Mark Tushnet suggests) he had been the “least persuaded” of the anti-mandate arguments at the initial conference and eventually concluded that it could be upheld. I do, however, think many of the Chief Justice’s critics have failed to recognize how this opinion fits with what we’ve seen from the Chief in his first several years of the Court. Specifically, I believe we can explain Roberts’ vote in a way that is quite consistent with his behavior in other cases and that does not require ascribing political motives to him. While I am not persuaded by Chief Justice Roberts’ opinion, I believe it squares with his overall jurisprudential approach for reasons I first noted here and here, and will elaborate upon in this post….A second example can be found in Jeff Toobin’s behind-the-scenes account of Citizens United. There, Toobin reports, the Chief drafted an opinion that would have stretched the statute to exclude covering CU’s video, thereby avoiding the larger First Amendment question. While some academics and attorneys had advocated this result, few tried to argue that this outcome was dictated by the statutory text. In CU, as in NFIB, it turned out Roberts was the only one willing to accept this approach. The other conservatives were persuaded by Justice Kennedy to swing for the fences, and the Court’s liberals thought a saving construction was unnecessary to uphold the statute. After reargument, Roberts joined the Kennedy’s opinion invalidating the restrictions, but it appears not to have been his preferred course of action.”

Jonathan also mentions the Chief’s opinion in WRTL II.  I’d add NAMUDNO, and this makes me think that it was Roberts, not Kennedy, who pushed for avoiding the constitutional issue in NAMUDNO as to whether section 5 of the Voting Rights Act would stand.

But for reasons I’ve expressed here, I don’t expect the Chief to continue to take that position when the issue returns to SCOTUS next term.