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Civics lesson from Justice O’Connor: Obama’s health-care remarks ‘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.'

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“I 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,” Leahy said. “The 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.”

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Leahy did not mention his own effort to exert pressure on the chief justice at Wednesday’s hearing.

O’Connor, 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.

“I regret that threats to the judicial independence seem to be occurring with greater frequency,” he told O’Connor.

Then the senator asked O’Connor: “Could 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?”

O’Connor: “I don’t 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 … but it is unusual.”

Grassley: “Could 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’s legitimacy, and a particular justice’s legacy, will be tainted unless the court decides the case as the president wants?”

O’Connor replied that such actions by the president during a pending Supreme Court case would be “unusual.”

Grassley: “And judicial independence is certainly weakened if justices give in to those attacks, rather than decide based on the Constitution, or appear to do so.”

O’Connor: “I’m sure many things go through the mind of a justice in a pending case when a tough issue must be decided.”

She added that a justice could learn new details that would shift the tentative outcome. “You can continue to learn until you have signed on to a particular decision,” she said.

Several senators attempted to draw favorable comments from O’Connor 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.

“Would you like me to speak on it?” O’Connor offered.

“Only if you speak in favor it it,” Grassley replied.

“Then I’ll keep my mouth shut,” the former justice said with a laugh.

Justice O’Connor 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.


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