As I noted in this post, I think the pattern of the Chief Justice’s behavior is a product of multiple elements within his jurisprudence. First, I think he genuinely believes in constitutional avoidance as an important principle. He also believes that the Court should strive to bring clarity and concreteness. As a consequence he dislikes splintered holdings. Thus, in NAMUDNO he was willing to adopt a strained reading of the statute on avoidance grounds because other justices were willing to go along. Similarly in FIB, while other justices did not join the portion of his opinion on avoidance, a majority did embrace his conclusion that the mandate could be viewed as a valid exercise of the taxing power. In Citizens United, on the other hand, embracing constitutional avoidance would have required the Chief to adopt a statutory interpretation that was rejected by all eight other justices. Thus, he would have written a controlling opinion based on a premise that every other justice rejected. Yet, according to Jeffrey Toobin’s reporting, he was prepared to go the narrow, avoidance-based route when it appeared other justices would agree.
While Prof. Hasen puzzles over the behavior of the Chief, I think it is the approach to avoidance taken by other justices that is harder to explain. Chief Justice Roberts appears ready to rely on avoidance quite aggressively to avoid invalidating statutes, but not at the expense of fracturing the Court. But what about, say, Justice Ginsburg? She wouldn’t join the Chief to adopt a narrow holding in Citizens United that would have saved the statute, at the expense of a holding with which she would have disagreed, but was in NAMUDNO. Is there a theory to explain this?
I agree that if the Chief Justice offered to use the avoidance canon in Citizens United and the liberals refused to go along, that would indeed be puzzling. But for this reason I am unconvinced that on this point Toobin’s description is accurate.