The outcome of the health care case will go a long way in defining the Roberts Court. Roberts Court on trial

John Roberts is having his Bush v. Gore moment.

If the wily chief justice felt squeamish about leading the Supreme Court into an election-year political maelstrom, that was nowhere on display Tuesday, when the Roberts-led conservative majority signaled its collective skepticism, even hostility, for President Barack 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’s 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.

( Also on POLITICO: 5 takeaways on health law arguments)

“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.

“I think people have always underestimated how political a body the Supreme Court is,” he added. “Roberts isn’t a hypocrite. … His judicial worldview is so close to his political worldview, I think he honestly believes he’s an umpire — but this is an incredibly activist court, especially when — sorry, I mean if — it overturns health care.”

Norm Ornstein of the American Enterprise Institute, a frequent court critic, expressed the view of many liberals who think Roberts is, at his core, a partisan who works from a conclusion backwards: “If he’s the umpire, how come he always has a bat in his hand?”

The outcome of the health care case, Democrats and Republicans agree, will go a long way in defining a Roberts Court already ranked among the most conservative in recent history.

In a larger sense, the case is also a critical test of Roberts’s evolving role as the leader of his own court: In decades past, chief justices have labored mightily to secure something approaching consensus on major decisions.

In the historic Brown v. Board of Education case, for instance, Chief Justice Earl Warren agreed to several compromises from more conservative justices, including Felix Frankfurter, to win his hard-fought 9-0 ruling.

Shortly after Roberts was confirmed, he told ABC News that he didn’t think it’s appropriate to “lobby” other justices but would try to make accommodations to ensure seven-, eight-, or even nine-vote majorities.

“I do think it’s natural for someone who’s a chief justice to feel a certain responsibility for making sure the court functions well as a court, bring as many justices on board a particular opinion and decision as possible, try to make sure the court speaks with as much a single voice as it can,” he said at the time.

It hasn’t quite worked out that way. Many of the highest-profile cases in the Roberts Court — from the controversial Citizens United ruling to the 2006 decision striking down school desegregation plans in Louisville and Seattle — were bitter 5-4 affairs, with Roberts, Antonin Scalia, Clarence Thomas, Samuel Alito and swing voter Anthony Kennedy in the majority.

In the 2010 term alone, 16 cases out of about 80 were decided by 5-4 majorities, 20 percent of the total docket, according to analysis by SCOTUSblog. The split verdicts included a Roberts-backed decision blocking Walmart employees from refiling gender discrimination suits that had previously been dismissed on a technicality.

The divisions haven’t been universal: There has been bipartisan agreement on a handful of key cases, including some involving the rights of accused criminals, with Scalia in particular siding with court liberals such as Ruth Bader Ginsburg.

Roberts defenders say the court’s schisms are overplayed.

“People are assuming this one will be 5-4, too, so people will say that proves we’re judicial activists. But it’s my sense that reasonable people will come to different conclusions,” said former Thomas clerk Dan Himmelfarb, who has argued 11 cases before the high court.

”I don’t see this case being like Bush v. Gore or abortion cases, where you can just accuse one side or the other as being nakedly political. … To me, it’s a case involving the reach of federal power under the Commerce Clause that has legal and jurisprudential significance beyond politics.”

Yet the specter of Bush v. Gore, with its controversial result and tenuous grounding in established law, shadows the health care decision. Besides that case and Citizens United, this is the most politically important case argued in the past decade.

” Bush and Citizens United, taken together, are both partisan, political and corrupting,” said Tom Perriello, a former Democratic congressman from Virginia who now runs the liberal Center for American Progress Action Fund. “They cast doubt on the legitimacy of the court.”

Not surprisingly, the conservatives who served on both the Rehnquist and Roberts courts don’t see it that way.

“I think it’s a highly respected institution. It was when I came, and I don’t think I’ve destroyed it,” Scalia told California Lawyer last year.

Referring to Bush v. Gore, he added, “Nobody on the Court liked to wade into that controversy. But there was certainly no way that we could turn down the petition. … What are you going to say? The case isn’t important enough? And I think that the public ultimately realized that we had to take the case. … I was very, very proud of the way the Court’s reputation survived that, even though there are a lot of people who are probably still mad about it.”

But Harvard law professor Michael Klarman, who has written two histories of the high court, said the fact that the fight over the health care law is playing out according to the standard Republican vs. Democrat script — the same script as the 2000 election fight — has eroded the idea that the GOP-appointed court is rooted in restraint and precedent-based impartiality.

“The idea they are operating from precedent can’t pass the laugh test, especially after Bush v. Gore. The country is dividing along the same ideological and political lines this time, and so is the court,” Klarman said.

“If the court strikes it down, it’s a big deal. … Since 1948, Democrats have been running on universal health care. This would pretty much cement the idea it’s never going to happen. … It will cement, at least in the eyes of Democrats, that this is a Republican court doing the Republicans’ business.”

If the law is struck down, legal scholars say it would be the first time since 1936, during FDR’s pitched battles with a conservative-run court, that the high court has voided a major regulatory statute.

There’s no way to know if that is going to happen until June, when the court is expected to rule on the law’s individual mandate provision, which requires nearly all Americans to obtain insurance or face a penalty. But all signs at Tuesday’s feisty oral arguments over the mandate pointed to a tough road ahead for the act’s backers — who also are fighting an uphill battle against public resistance to the law’s universal insurance requirement.

“So can the government require you to buy a cell phone because that would facilitate responding when you need emergency services?” a dubious Roberts asked Solicitor General Donald Verrilli Jr., who represented the Obama administration.

But he seemed less critical of the law than Kennedy, whom liberals predicted would be more open to the argument that the law is rooted in the Commerce Clause of the Constitution.

“Assume for the moment that [the health care law] is unprecedented. This is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce,” Kennedy began, adding: “I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?”

The policy consequences of the court overturning the individual mandate are hard to predict. The political fallout is anything but.

Obama has already shown a penchant for attacking the court, calling out Roberts and Co. to their faces for the Citizens United ruling during his 2010 State of the Union speech — eliciting an aggrieved “not true” mouthed by Alito.

A Roberts Court rejection of the health law will launch dozens of fundraising appeals on both sides — and the court’s actions will mobilize a liberal base that was never thrilled with Obama’s compromises on health reform anyway.

But, as FDR’s ill-fated court-packing scheme showed, there are limits to SCOTUS-bashing.

And the court, while flagging in popularity, is not nearly as reviled as Congress across the street. It clocks in with 46 percent approval, according to a Gallup poll taken last October.

During a low tide, in the weeks after Bush v. Gore, the court’s approval rating was even higher, in the mid-50s to low-60s.

“I don’t think any of this poses a great institutional risk to the court,” said Toobin, former editor of the Harvard Law Review . “But people are starting to realize correctly that the court basically reflects the country’s political divisions.”