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'Connor holds a copy of the Constitution before a recitation of preamble, at the National Constitution Center, on Sept. 16, 2011, in Philadelphia.
Matt Rourke/AP Photo
EnlargeFormer 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.?
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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.?
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