Politico says the Supreme Court of Justice John Roberts is on public trial as it wades into another election-year political maelstrom with its consideration of President Obama’s health care law. If the Affordable Care Act goes down — especially if it suffers the same schismatic 5-to-4 blow sustained by the McCain-Feingold campaign finance law in the Citizens United case — critics will accuse the Roberts Court of rigging the game and covering their power play with constitutional doublespeak.
The critics aren't even waiting for the third and final day of arguments before drawing their conclusions. Roberts' grilling of administration officials Tuesday—and his willingness to take up polarizing immigration and affirmative action cases in an election year–has already invited comparisons to the late Chief Justice William Rehnquist, whose court decided the 2000 presidential election in favor of George W. Bush. If the court again splits along a traditional conservative-liberal fault line, the health care debate will further erode the ideal of the court as an impartial arbiter and cast doubt on Roberts's own idyllic description of his role as judicial “umpire” laid out during his 2005 confirmation hearings. “John Roberts is a terrific representative of the contemporary Republican Party, a terrific representative of the Bush administration and living proof that elections really do have consequences,” said New Yorker legal writer Jeffrey Toobin, who sat through Tuesday's deliberations — and judged them “a train wreck” for supporters of the law.