Some believe Roberts has inoculated the court against charges of partisanship. Liberals fear the Roberts rebound

Liberals who celebrated the Supreme Court’s decision on health care may be nursing an ugly hangover after the justices dive back into their work this fall, with a docket likely to be loaded with controversial cases.

And left-leaning courtwatchers are already worried about the jurist who brought them such relief last week: Chief Justice John Roberts.


Some liberals contend that Roberts’s surprise crossover on the health care law has given him a free hand to craft and sign onto a slew of conservative opinions next year without suffering much of a public drubbing from Democrats and the press. With one major case, Roberts may have inoculated himself and the court against charges of partisanship.

( Also on POLITICO: Robert's switch: Gasoline on the fire)

The chief will have plenty of chances to make his mark in the next term. Already, the justices are planning to delve into the politically charged issue of affirmative action. They may well add hot-button disputes over same-sex marriage rights and voter ID laws. And the court could even take up the constitutionality of the landmark law Congress passed nearly half a century ago to guarantee African-Americans equal access to the polls: the Voting Rights Act.

The looming slate of cases could have far-reaching impact for the nation. Liberals and President Barack Obama’s administration have strong reason to expect at least some big disappointments, despite the jubilation they felt when Roberts joined with the court’ s liberal wing to uphold Obama’s health care law. Conservatives could be in line for a series of major wins.

“I wonder whether some of the liberals who are pouring effusive praise on the chief justice are going to feel the same way a year from now,” Duke University law professor Neil Siegel said.

Caroline Fredrickson of the American Constitution Society, a liberal lawyers’ group, said the upcoming term will provide far greater definition to the Roberts Court.

“A lot of us were considering this term to be an incredible blockbuster because of the scope of cases in front of the court,” Fredrickson said. “The next term is looking to be a close second, if not tied, in terms of its impact. … I’m not sure we now have very much — or have any — cause for optimism simply because the Affordable Care Act was upheld.”

George Washington University law professor Jeffrey Rosen was even more blunt about Roberts’s new leeway.

“He has now increased his political capital that will allow him to continue to move the Court in a conservative direction in cases involving affirmative action and the Voting Rights Act, both of which he may well strike down next year by 5-4 votes,” Rosen wrote in The New Republic.

One conservative lawyer involved in the affirmative action and voting rights litigation, Ed Blum, said he believes talk of the George W. Bush appointee making a 180-degree turn and signing onto the Obama administration’s approach more broadly goes a bit too far.

Invoking former swing-vote Justice Sandra Day O’Connor, another Republican appointee, Blum joked: “Some observers have started to call John Roberts ‘Chief Justice John O’Roberts,’ and I think that characterization is misplaced.”

But another conservative lawyer who closely tracks the court said Roberts’s defection in the health care case has given the jitters to those counting on him in other pivotal and politically potent cases likely to go before the court.

“I think from a conservative perspective lots of folks are going to be concerned that a vote they had thought was sound on a range of matters might suddenly be in play,” said the attorney, who asked not to be named while discussing prospective rulings of individual justices.

It’s unclear how the court’s dynamics could change following reports of acrimony between Roberts and the court’s other Republican-appointed justices after the chief justice allegedly changed his vote on the health care case.

Roberts could be eager to make amends with conservative justices and conservatives in the public at large.

On the other hand, according to CBS News’s behind-the-scenes account of the deliberations, Justice Anthony Kennedy was the most involved in trying to get Roberts to strike down the mandate. Kennedy also delivered the impassioned dissent verbally from the bench — a dissent that seemed replete with barbs aimed at Roberts.

However, Kennedy would be an odd suspect to hold an ideological grudge against Roberts that could make deliberations more awkward, since Kennedy himself is the least reliably conservative of the GOP appointees.

“It’s hard to play psychiatrist to the court,” Fredrickson said. “I don’t know how it plays out and whether they have grudges for not ending up where people thought they’d be.”

Her chief concern is the Voting Rights Act cases that could come before the court. “I have a lot of worry about the pressure [Roberts] may be under from the clearly strong reaction from the far right to the Affordable Care Act decision,” she said.

Just days before the health care decision, Roberts did join liberals to strike down three sections of Arizona’s anti-illegal immigration law. But beyond that there are few signs that Roberts has changed his fundamental conservative ideology, according to many courtwatchers. In the same week, he led the conservative wing in dissent in a case barring lifetime prison sentences for juveniles.

“He’s a deeply committed conservative on matters of race. I’d be surprised to see that change,” Siegel said. “On the challenge to the Voting Rights Act, he’s warned Congress we’ll strike it down if you don’t change it.”

Blum is representing Alabama’s Shelby County in a challenge to the provisions in the Voting Rights Act that require some states and localities to clear all changes in election procedures with the Justice Department or a federal judge. He said he expects in the next three or four weeks to ask the Supreme Court to take the case. “It’s reasonable to think the Supreme Court could consider [taking it] at a conference sometime in October or November,” Blum said.

Pending litigation over so-called voter ID laws in South Carolina and Texas could also end up at the high court on an emergency basis before the November election.

The court announced in February that it will consider Fisher v. University of Texas, a challenge to undergraduate affirmative action programs affecting admissions at the flagship state school. Conservative justices will have the chance for a hockey-style power play on that case since Justice Elena Kagan recused herself. The federal government filed a friend-of-the-court brief in favor of the university when she was solicitor general in the Obama administration.

In addition, last week lawyers for the House of Representatives moved to ask the court to consider the constitutionality of the Defense of Marriage Act, the 1996 law that bans many federal benefits for same-sex married couples. In May, the 1st Circuit U.S. Court of Appeals struck down a key part of that law.

As if those cases were not momentous enough, the justices are all but certain to be asked to take up the 9th Circuit’s ruling invalidating California’s ban on gay marriage. That opinion seemed carefully tailored to try to win the vote of more frequent swing justice Kennedy. In 1996, Kennedy wrote the high court’s 6-3 decision that struck down a Colorado voter referendum that prevented efforts to ban anti-gay discrimination.

Regardless of what happens in the coming term, the just-issued ruling in the health care case showed that a five-justice majority on the court favors more limits on Congress’s ability to use the Constitution’s interstate Commerce Clause to regulate American life. Some conservatives hailed that development and said liberals are celebrating prematurely over a ruling that dramatically reined in federal power.

“It is a serious blow to 90 percent of the legal academics and about 90 percent of Congress,” Heritage Foundation scholar Todd Gaziano wrote. “Liberal legal scholars are not going to like most of [the ruling], their wailing will start pretty soon. … In the long run, [those] constitutional rulings will be seen as an important victory in promoting fidelity to the Constitution and the ideal of limited government.”

Dan Tokaji, a liberal law professor at Ohio State, offered a similar analysis — and wasn’t happy about it.

“Overall the opinion is one that conservatives should be very happy with, especially conservatives who worry about the power of the federal government,” he said. “For those of us who think the federal government sometimes needs to act to protect political and civil rights, it’s a very worrisome decision.”

But other legal experts said they’re unclear about precisely which regulations, if any, are really in danger because of the court’s rhetoric about the Commerce Clause.

“I don’t see how it’s going to be more than a symbolic limit,” Siegel said.

David Driesen, a law professor at Syracuse who has defended against lawsuits claiming environmental regulations are unconstitutional, said he doesn’t think the health care ruling will ultimately have that much impact on other Commerce Clause-related cases.

He said one challenge that could arise is against federal environmental efforts, such as Superfund laws, that try to force landowners to clean up chemicals discharged on their land long ago even if the current owners aren’t responsible for the spill.

“It creates a tough question because it could be an individual landowner is not a business and is not involved in any commercial activity himself,” Driesen said, adding that he doesn’t think businesses will escape federal oversight as a result of the new ruling.

Many commentators said the most far-ranging impact of the court’s health care decision could be the 7-2 portion ruling that the federal government can’t threaten to cut off Medicaid funding to states to try to force them to expand coverage under the program.

Tokaji called the Supreme Court’s holding on Medicaid a “somewhat murky doctrine,” but one that shows a court determined to undermine liberals’ efforts.

“This is a court that is very suspicious of federal power and is intent on narrowing the federal government’s power,” he said. “Liberals have reason to be very worried.”