And Elizabeth Wydra, of the progressive Constitutional Accountability Center, who filed a brief on behalf of bipartisan group of former members of Congress, notes the administration could decide the issue is important enough to go straight to the Supreme Court just to get the programs unblocked pending appeal.
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"It's something of a silly season. We're waiting for big cases to come out and there's nothing we can do about it," said Elizabeth Wydra, chief counsel at the Constitutional Accountability Center, a liberal legal advocacy group.
During a recent end-of-arguments recap session held by the Constitutional Accountability Center, Jones Day's Yaakov Roth predicted that neither the same-sex marriage cases nor the challenge to federal exchange tax subsidies in the Affordable Care Act would have much effect on Roberts' legacy.
"Roberts' record remains very conservative, but he's clearly becoming less predictably conservative in some key areas, and his votes this term underscore that," says Brianne Gorod, appellate counsel at the liberal Constitutional Accountability Center.
Both for the campaign-finance decision and the chief justice’s potential role in the court’s coming decisions on Obamacare and same-sex marriage, Roberts became the main topic of conversation when the liberal Constitutional Accountability Center held a panel discussion about the term last week. "I think arguably this term is going to be the defining term for the Roberts court,” said Elizabeth B. Wydra, the group’s chief counsel.
Supreme Court lawyer Paul Smith, speaking at an event hosted by the Constitutional Accountability Center, was quick to add that he felt that as the argument wore on, Kennedy's questions caused optimism to return to those who want the court to strike down state bans on same-sex marriage.