WASHINGTON – Retired Supreme Court Justice Sandra Day O'Connor on Wednesday said attacks on Chief Justice John Roberts over his key vote to uphold President Barack Obama's health care overhaul are "unfortunate."
She also said that Obama's comments while the court was still considering the health care law — that overturning it would be unprecedented and extraordinary — were "not ideal."
The 82-year-old former justice was responding to senators' questions. She found herself part of a game of political pingpong during her testimony to the Senate Judiciary Committee on the importance of teaching schoolchildren how their government works. Dozens of children were in the audience.
The senators did not use Obama's or Roberts' name in their questions, but left no doubt they were talking about them.
First up was Sen. Patrick Leahy of Vermont, the committee's Democratic chairman. Leahy wanted to know what O'Connor thought about critics who called Roberts a traitor to conservative ideals and accused him of betraying President George W. Bush, who appointed Roberts to the high court.
She replied: "It's unfortunate because I think comments like that demonstrate only too well a lack of understanding some of our citizens have about the role of the judicial branch." Federal judges owe their only allegiance to the Constitution, O'Connor said in a defense of judicial independence. She has been promoting civics education and judicial independence since her retirement in 2006.
O'Connor was the first woman to serve on the Supreme Court, named by President Ronald Reagan in 1981. She sometimes was on the receiving end of attacks by conservative critics for her votes in support of abortion rights, affirmative action and campaign finance limits.
Once Leahy was done, Sen. Charles Grassley of Iowa, the committee's senior Republican, wondered whether the real threat to judicial independence came from Obama's remarks in early April, after the court heard arguments in the health care case but nearly three months before it was decided.
"If there's a pending decision at the Supreme Court and the president was to express his views along those lines it would be surprising," O'Connor said. "I guess it could happen, but it's not what we expect and it's not ideal."
At the time, Obama said the "unelected" court would harm millions of Americans if it overturned the health care law. "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress," Obama said.
Grassley also wanted to know what O'Connor thought about Obama's criticism during his 2010 State of the Union speech, with several justices in attendance, of the court's 5-4 decision in the Citizens United case that freed corporations and labor unions of most limits on political spending.
"I don't know if it threatens judicial independence. It's just not what a citizen expects to hear," she said. "It's unusual. It's not how that time is usually spent by presidents."
O'Connor herself has politely criticized the Citizens United ruling, which rejected parts of the McCain-Feingold campaign finance law that the court, with O'Connor in the majority, had upheld just six years earlier.