Former Supreme Court Justice Sandra Day O’Connor told a Senate panel Wednesday that criticism of Chief Justice John Robert’s role in upholding President Obama’s health-care reform law was “unfortunate.”
The retired justice also said Mr. Obama’s actions were “unusual” 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.
“If there is a pending decision at the Supreme Court and the president were to express views along those lines … it would be unusual,” Justice O’Connor said.
“We have tended in this country to not speak out about a decision in a pending case,” she added. “It can happen, but it is not expected and not ideal.”
O’Connor 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’Connor was nonetheless drawn into the lingering controversy surrounding last month’s 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 “a member of the court was labeled a traitor and accused of betraying the president who appointed him.”
O’Connor replied: “It is unfortunate because comments like that demonstrate a lack of understanding about the role of the judicial branch.”
Leahy’s reference was to Chief Justice Roberts, who reportedly changed sides during behind-the-scenes deliberations and joined the court’s 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 – and Roberts in particular – as part of his reelection campaign.
In addition to the president, Senator Leahy himself targeted Roberts in a Senate floor speech in May – a month and a half before the decision was announced.
“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.”
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.
“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.