Civics lesson from Justice O鈥機onnor: Obama鈥檚 health-care remarks 鈥榰nusual鈥
Retired Justice Sandra Day O'Connor, testifying in the Senate about her national online iCivics project, was drawn into the lingering controversy over health care. She called criticism of Justice Roberts 'unfortunate' and Obama's remarks aimed at the court 'unusual.'
Retired Justice Sandra Day O'Connor, testifying in the Senate about her national online iCivics project, was drawn into the lingering controversy over health care. She called criticism of Justice Roberts 'unfortunate' and Obama's remarks aimed at the court 'unusual.'
Former Supreme Court Justice Sandra Day O鈥機onnor told a Senate panel Wednesday that criticism of Chief Justice John Robert鈥檚 role in upholding President Obama鈥檚 health-care reform law was 鈥渦nfortunate.鈥
The retired justice also said Mr. Obama鈥檚 actions were 鈥渦nusual鈥 when he criticized the justices in his 2010 State of the Union address and when he issued a warning to the Supreme Court this spring that any decision striking down his health-care reform law would be illegitimate judicial activism.
鈥淚f there is a pending decision at the Supreme Court and the president were to express views along those lines 鈥 it would be unusual,鈥 Justice O鈥機onnor said.
鈥淲e have tended in this country to not speak out about a decision in a pending case,鈥 she added. 鈥淚t can happen, but it is not expected and not ideal.鈥
O鈥機onnor made the comments while appearing as a lone witness before the Senate Judiciary Committee. She was present primarily to discuss a nationwide project called iCivics that she organized to foster greater understanding among students about how US government and American courts work.
Despite that mission, O鈥機onnor was nonetheless drawn into the lingering controversy surrounding last month鈥檚 high court decision upholding the Patient Protection and Affordable Care Act.
The committee chairman, Sen. Patrick Leahy (D) of Vermont, opened the door with a comment about how 鈥渁 member of the court was labeled a traitor and accused of betraying the president who appointed him.鈥
O鈥機onnor replied: 鈥淚t is unfortunate because comments like that demonstrate a lack of understanding about the role of the judicial branch.鈥
Leahy鈥檚 reference was to Chief Justice Roberts, who reportedly changed sides during behind-the-scenes deliberations and joined the court鈥檚 liberal wing to uphold the health-care law rather than strike it down.
Angry conservatives accused Roberts of bowing to political pressure, including warnings that Obama would launch political attacks against the Supreme Court 鈥 and Roberts in particular 鈥 as part of his reelection campaign.
In addition to the president, Senator Leahy himself targeted Roberts in a Senate floor speech in May 鈥 a month and a half before the decision was announced.
鈥淚 trust that he [Roberts] will be a chief justice for all of us and that he has a strong institutional sense of the proper role of the judicial branch,鈥 Leahy said. 鈥淭he conservative activism of recent years has not been good for the court. Given the ideological challenge to the Affordable Care Act and the extensive, supportive precedent, it would be extraordinary for the Supreme Court not to defer to Congress in this matter that so clearly affects interstate commerce.鈥
Leahy did not mention his own effort to exert pressure on the chief justice at Wednesday鈥檚 hearing.
O鈥機onnor, in her self-appointed role as judicial educator-in-chief, stressed that the framers of the Constitution understood that judges must be independent enough to base their decisions solely on the law.
Sen. Charles Grassley (R) of Iowa returned to the health-care controversy with a few pointed questions of his own.
鈥淚 regret that threats to the judicial independence seem to be occurring with greater frequency,鈥 he told O鈥機onnor.
Then the senator asked O鈥機onnor: 鈥淐ould judicial independence be jeopardized when a president at the State of the Union misstates the holding of a Supreme Court case in front of justices when they cannot respond?鈥
O鈥機onnor: 鈥淚 don鈥檛 know that it threatens judicial independence, it is just not what a citizen expects to hear. It is certainly possible for a president to do 鈥 but it is unusual.鈥
Grassley: 鈥淐ould judicial independence be threatened when, after a pending case is briefed or argued, the president publicly misstates the process of judicial review and claims that the court鈥檚 legitimacy, and a particular justice鈥檚 legacy, will be tainted unless the court decides the case as the president wants?鈥
O鈥機onnor replied that such actions by the president during a pending Supreme Court case would be 鈥渦nusual.鈥
Grassley: 鈥淎nd judicial independence is certainly weakened if justices give in to those attacks, rather than decide based on the Constitution, or appear to do so.鈥
O鈥機onnor: 鈥淚鈥檓 sure many things go through the mind of a justice in a pending case when a tough issue must be decided.鈥
She added that a justice could learn new details that would shift the tentative outcome. 鈥淵ou can continue to learn until you have signed on to a particular decision,鈥 she said.
Several senators attempted to draw favorable comments from O鈥機onnor on proposals to televise US Supreme Court proceedings.
Grassley announced that he strongly favors such televised access and is aware that several justices strongly oppose it.
鈥淲ould you like me to speak on it?鈥 O鈥機onnor offered.
鈥淥nly if you speak in favor it it,鈥 Grassley replied.
鈥淭hen I鈥檒l keep my mouth shut,鈥 the former justice said with a laugh.
Justice O鈥機onnor served for 25 years on the high court. She was the first woman on the court, and since her retirement in 2006 has been active in promoting a resurgence in civics education.
In 2009, she organized a web-based program, iCivics, which uses a series of computer games to help students better understand how government works. It is available to schools free of charge and is being used in all 50 states.