Following today’s oral arguments, some are making the case that there are two swing votes on the constitutionality of President Obama’s national health care — Chief Justice John Roberts and Justice Anthony Kennedy. Though I agree that Kennedy could go either way, based on today’s arguments, I’d be extremely surprised if Roberts voted to uphold the law.

Those who say that Roberts’ vote is in play point out that he asked critical questions to both sides. But a closer look reveals that when he was badgering President Obama’s solicitor general Donald Verrilli, he was speaking for himself, but when pressing lawyers opposing the law — Paul Clement and Mike Carvin — he created distance from the position by noting he was articulating the position of the government.