Wert Honors Constitution Day – Hobart and William Smith Colleges \
The HWS Update

Wert Honors Constitution Day

In the ruling on the National Federation of Independent Business v. Kathleen Sebelius -also known as the case concerning the Affordable Healthcare Act – many were left astounded. It was not that the legislation was ruled constitutional that had the nation stunned, but rather the source of the deciding vote: Chief Justice John Roberts.

In honor of Constitution Day, the Colleges welcomed to campus Justin Wert, an associate professor of political science at the University of Oklahoma, to discuss the recent ruling on healthcare. In his public talk, Wert posed the question: “Why did Chief Justice Roberts vote like a Democrat?”

In the 5-4 ruling, it was Roberts, considered to be one of the most conservative judges on the court, who upheld the healthcare bill as constitutional.

“This case is important in understanding the traditional decision making in the U.S., the process by which judges go through deciding cases,” remarked Wert. “The real take home is that we have this idea that the Supreme Court is an apolitical or non-political institution – in distinction from the other two branches of government. However, to think that politics don’t factor in just isn’t true.”

The issue of healthcare, explained Wert, is one the most visceral and divisive issues in the country today. In fact, it is one of the few issues that is completely divided along party lines.

Although judges do not have direct party affiliation, they were appointed by politicians who do. “Justices are certainly political, or they wouldn’t have been chosen by really smart political players who are successful at winning elections,” said Wert.

A major factor in Roberts’ decision, Wert believes, wasn’t a strong conviction in the bill’s constitutionality, but rather his desire to be perceived as legitimate. “The executive branch has the power of the sword, the legislative branch has the power of the purse, but the Supreme Court has no power,” explained Wert. “It takes the agreement of the other branches and the opinion of the people to affirm legitimacy. The court over time needs to be preserved as legitimate because it takes the other branches to enforce their decisions.”

That is to say, affirmed Wert, that Roberts could not be viewed by the public as making too many polarized and partisan decisions; recently, his views on such issues as the Commerce Clause have been viewed as extremely conservative.

In an effort to appear more impartial, Roberts voted on a moderate line on the highly public and charged issue of healthcare. A move that will also allow him to vote more conservatively on cases he views as more important in the future. “Justice Roberts was perceived to be leading a conservative faction in court,” said Wert. “It’s a short term loss for Roberts and the Republican Party, and perceptions of legitimacy have been on the rise since this case was decided.”

In the end, the case serves not as an example of the impartiality and balance of the Supreme Court, but rather as a means to expose the truly political and institutional nature of the Justices. “The Justices are going to vote in ways that go against what they believe the law means, what they believe their party wants; they will sacrifice certain cases so that over time – not to always produce the best outcome, but to prevent the worst.”

First instituted in 2005, Constitution Day commemorates the Sept. 17, 1787, signing of the Constitution by the 55 delegates to the Constitutional Convention; it was their final meeting.