I agree with Mike Ramsey's analysis of the Stern case below. I would go further. Chief Justice Robert's approach was the same one he applied in the Free Enterprise Fund case. In both cases, he starts the analysis with the original meaning. He then carefully discusses precedents that conflict with that meaning. But he doesn't discuss the conflict much. Still, if you read his language carefully, you see what he regards as the original meaning and what he regards as nonoriginalist precedent. He then will not extend the nonoriginalist precedent further than it has been applied in the past — the implicit premise being that extending nonoriginalist precedent is problematic. And so ends up moving the law in the originalist direction without much fanfare. This analysis helps to explain why Roberts relied so heavily on Northern Pipeline and Murrays Lessee, but not so much on Crowell v. Benson (much to Breyer's dismay).
Scalia in his concurrence was much more explicit about his position. His position may also be more "originalist" in that he said he is willing to overrule (nonoriginalist) cases that expand the public rights doctrine beyond cases involving the government, while Roberts said nothing about that issue.
Interestingly, Scalia also said that he was willing to accept Crowell v. Benson as a precedent, even though he strongly implies it is not originalist. As is usually the case, Scalia does not explain why he is willing to not overrule Crowell, merely stating that certain adjudications "are governed (for better or worse by our landmark decision" in Crowell. But I think the "landmark" suggests that, in Scalia's view, overturning this 1932 decision would have too upsetting an effect on the existing legal regime. I am not sure that this decision would be saved under my own proposed precedent standards. See here.
Posted at 5:47 PM