Sandra Day O'Connor says attacks on John Roberts "demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch."

She was testifying at a Senate Judiciary Committee hearing on civics education, which doesn't sound as though it was about airing grievances about her old colleagues on the Supreme Court, but Democratic Senator Patrick Leahy — the chairman of the committee — used the occasion to express his concern "about some of the rhetoric about the chief justice. He’s been called everything from a traitor to having betrayed President George W. Bush."

But watch the video at the link. O'Connor is almost robotic as she steps carefully through a bland transition back to her prepared text — watch her look down at her notes — which seems to the usual civics lesson about the framers and the Constitution:

“It’s unfortunate. Because I think comments like that demonstrate only too well a lack of understanding that some of our citizens have about the role of the judicial branch, and I think the framers of our federal Constitution did a great job in understanding themselves that the judicial branch needed to be able to make independent decisions and the legitimacy — the lawfulness — of actions at the state and federal level...."

But the news media got their sound bite: Unfortunate!

She was also prompted give the other side a sound bite:

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."

Not ideal! Take that!

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."

It's unusual... not how that time is usually spent....

I'm guessing Justice O'Connor thinks it's unfortunate that her time, when called upon to testify about civics education, was used by politicians to extract politically useful statements from her, but that is how the time of politicians is usually spent, and it is exactly what a citizen expects to hear.

Ironically, that's a civics lesson.

The Top 10 Things That Just Had to Wait Until the Last 24-Hours Before the Obamacare Decision.

No, no, no. It's not just filler. It's the last amazing thing that was finally realized, on the Eve of Destruction — or Non-Destruction or Semi-Destruction — and needed to be published right now — quick! link! read! — for the edification of the American people.

1. Scalia is a rascal. I insist that he resign! Pronto! He's been annoying Elmer J. Dionne Jr. for years. Oooh, I'm just so mad. How dare he!

2. The NYT still has Linda Greenhouse available to wheel out for special occasions. Today will probably be a "rare day" of "theater." There might be "tears of relief" or "of regret." But "whose"?

3. President Obama will need to respond to the ruling. Will it be with tears? Of relief? Or of regret? He's got 3 speeches ready. Tears of relief... tears of regret... and laughing through tears.

4. "In the end, you have to make a prediction and take responsibility for it. I believe the mandate will not be invalidated tomorrow." As The Beatles sang: And in the end, the predictions you make are equal to the responsibility you take. Aaaah aaaah....

5. "We don't know what will happen this morning. But no matter what, today is an important day to have Barack Obama's back." Email just now from the Obama campaign. Because everything is an occasion for giving money to Obama. Especially this. Transmogrify your tears of regret — or relief! — into cash for Obama.

6. A roundup — like mine right here — of all the predictable bullshit: "Obamacarians' Pregame Rationalizations: Doesn't Matter; Good for O; All Scalia's Fault, and More!"

7. Instapundit provides a roundup of last-minute links including the roundup of links that I just linked to at #6 (which I took, not from Instapundit, but from that one guy in the comments here).

8. Randy Barnett thanks everyone — whatever happens — he's happy to have at least been taken seriously. Especially by Orin Kerr, who really annoyed him.

9. What do I actually think? Should I after all this time reveal whether I think the individual mandate is constitutional? We're about to hear what the Supreme Court thinks, so what does it matter what I think? It's emphatically the province and duty of the Judicial Department to say what the law is. That's what I think. Now, if they go 5-4, liberal-conservative or conservative liberal, The Law will not have the awesome solidity We, The Children want it to have, but I'm not going to cry about it. I'm old. And I've been watching the Supreme Court for a long, long time. It's 9 human beings — could be 19, but it's 9 — trying to do something serious and complicated.

10. Oh! It's so exciting! Let's watch it unroll at the SCOTUSblog live blog, where the venerable  Lyle Denniston is saying "Good morning from a slightly zoo-like, but still surprisingly civil, press room at the Court."

Only 15% of likely voters think the Supreme Court puts "too many limits on what the federal government can do."

Rasmussen reports.

30% think the Court doesn't put enough limits on the federal government. 40% thinks the Court gets it just right — which I presume is partly because people tend to trust the Court's authority on legal issues and partly because the Court is actually pretty good at providing just about the right degree of countermajoritarian balance.

That 40% — those who think the Court is getting it right — is about the same among Republicans, Democrats, and unaffiliated groups. But what about the rest of the Republicans, Democrats, and unaffiliated groups? Are they saying too much or not enough? Interestingly, the Republicans and unaffiliated voters are saying not enough.  The Democrats are divided into too much and not enough. All of that shows, I think that attacking the Court as "activist" isn't a very useful political move.

Thirty-nine percent (39%) of all voters trust the Supreme Court more than the other two major branches of the federal government – the presidency and Congress. Thirty percent (30%) trust the president more, while only 12% put more faith in the Congress. Nineteen percent (19%) are not sure. Those figures reflect only modest changes since May 2009.... 

Most Republicans (70%) and voters not affiliated with either of the major parties (54%) have a favorable regard for the high court. Democrats by a 50% to 42% margin do not.

But then 60% of Democrats trust the president more than the other two branches of the government. Fifty-five percent (55%) of GOP voters express more confidence in the Supreme Court, a view shared by just 19% of those in the president’s party. Among unaffiliateds, 40% trust the court more, while 27% have more confidence in the president.

Interesting how the "unaffiliateds" seem more in sync with Republicans than with Democrats.  This suggests it is not wise for Democrats to continue to denigrate the Court.

Stripping the political rhetoric out of Obama's preemptive attack on a Supreme Court that would strike down the ACA...

... Attorney General Eric Holder files the 3-page, single-spaced letter demanded by the 5th Circuit explaining the Administrations actual position on the judicial review of federal statutes.

The letter — predictably — presents the most ordinary and elementary propositions of constitutional law going back to Marbury v. Madison.

ADDED: Instapundit says " It’s all pretty unexceptional except for the final sentence." Ha ha. The last sentence is the claim that "The President’s remarks were fully consistent with the principles described herein."

See, I think this is a wonderful opportunity to compare political speech about the courts to the speech by politicians to the courts. If you get used to these different styles — as I am, having read this stuff for decades — you can translate back and forth. Speak political rhetoric and I can turn it into a version that is fit for judicial consumption. Show me the way you're talking to the judges and I can whip it into demagoguing-the-public form. And then there's the meta level, where Instapundit is, where you juxtapose them and leverage new critique.

Say I, from meta meta land.

5th Circuit reacts to Obama's remarks on the Supreme Court case and orders response on whether the Administration thinks courts may strike down a federal law.

Jan Crawford reports:

Mr. Obama all but threw down the gauntlet with the justices, saying he was "confident" the Court would 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."...

The panel ordered the Justice Department to submit a three-page, single-spaced letter by noon Thursday addressing whether the Executive Branch believes courts have such power, the lawyer said.

The panel is hearing a separate challenge to the health care law by physician-owned hospitals. The issue arose when a lawyer for the Justice Department began arguing before the judges. Appeals Court Judge Jerry Smith immediately interrupted, asking if DOJ agreed that the judiciary could strike down an unconstitutional law.

The DOJ lawyer, Dana Lydia Kaersvang, answered yes -- and mentioned Marbury v. Madison, the landmark case that firmly established the principle of judicial review more than 200 years ago, according to the lawyer in the courtroom.

Smith then became "very stern," the source said, telling the lawyers arguing the case it was not clear to "many of us" whether the president believes such a right exists. The other two judges on the panel, Emilio Garza and Leslie Southwick -- both Republican appointees --r emained silent, the source said.

Fascinatingly intense. Obviously, the DOJ will concede the power of judicial review, as historically recognized in Marbury. But the court is asking it to spell out exactly what the Administration thinks the limits are. Obama — like many pundits and politicians — throws around the ideas of judicial "restraint" and "activism," but the judges themselves tend to speak in terms of "saying what the law is" and putting the law — constitutional and statutory — in the proper hierarchy — with the Constitution on top — with no element of judicial will injected into the process.

It will be interesting to see if the Administration will endorse such a bland — but highly deferential — view of the judicial power or if it will explicate some more nuanced notion of when courts ought to let important/economic legislation prevail.

"It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

Said Senator Orrin Hatch, commenting on President Obama's preemptive attack on a Supreme Court opinion that would strike down the health care law. Obama, referring to the Court as "an unelected group of people," said "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."

Now, obviously, Obama's attack on the Court is vulnerable to the criticism that it's incoherent because there are other times when he honors the Court precisely because it does strike down laws passed by democratically elected legislatures. Indeed, he seems to use his democratically obtained power to appoint Supreme Court Justices who will, for example, strike down democratically enacted laws restricting abortion. He will lavish praise on the life-tenured, aloof-from-politics judges who produce decisions he likes.

Which brings me back to Hatch's quote: "It must be nice living in a fantasy world where every law you like is constitutional and every Supreme Court decision you don't is 'activist.'"

I had to laugh.

Because I've been living in that fantasy world for almost 30 years.

It's called the legal academy.

Amongst the conlawprofs, it's an idea so standard as to be boringly banal: The courts should vigorously enforce individual rights, confidently stepping up to a countermajoritarian role, but when it comes to the "structural" parts of the Constitution — like federalism and separation of powers — the courts should defer to Congress.

"Obama’s go-slow 'don't ask, don't tell' plan backfires."

The headline in Politico.

In 1993, President Bill Clinton nearly derailed his presidency with an early move to end the military’s ban on gay service members. Aides scrambled to craft the “don’t ask, don’t tell” policy as a compromise to get the politically radioactive issue off the new administration’s back.

President Barack Obama’s aides were intent, above all else, on not repeating that experience when it came to carrying out their campaign promise to open up the military to gays, so they moved cautiously.

Give them credit: They found a new way to screw things up.

The result: Obama now faces his own political crisis over the issue that threatens his support from key Democratic constituencies, undermines his relationship with the Pentagon and puts him in the odd position of defending a practice he has denounced as discriminatory and harmful to national security.

“It’s crazy that all this is happening 2½ weeks before a national election,” said Richard Socarides, an adviser to Clinton on gay issues during the ’93 fiasco. “The timing could not be worse for them, but it was fairly predictable that their strategy of postponing and delaying getting into this stuff was, at some point, going to come back to haunt them.”

So, this technique of going slow resulted in the troublesome matter heating up at exactly the point when they least wanted us to notice. Poetic justice.

The article has a lot of detail on the way the lawsuits progressed in court, including the decision not to appeal the 9th Circuit case (Witt) that would have brought the question of the constitutionality of DADT to the Supreme Court — with Elena Kagan, then Solicitor General, defending the statute.

Meanwhile, there was the Log Cabin Republicans' lawsuit, which was filed in 2004 and proceeded terribly slowly under Judge George Schiavelli (a Bush appointee). Schiavelli resigned in 2008, and the new judge, Virginia Phillips, a Clinton appointee, got things going, and she hit Obama with her decision that DADT is unconstitutional on September 9th of this year. Ironically, her decision was based on the heightened scrutiny standard announced in the Witt case that the Obama administration chose not to appeal. Funny, the way a President can't control the courts.

Phillips said it was hard to accept the Justice Department’s arguments that the law was constitutionally sound when Obama was telling audiences that “reversing this policy ... is essential for national security.”

“Obama’s made a lot of statements that we’ve been using as evidence against the government,” said Log Cabin attorney Dan Woods. “They’re in a very awkward position.”

Tangled in their own web.

"Not backing down... President Obama has formally renominated five judges whose candidacies were previously derailed by Senate Republicans."

Sam Stein reports. (Is "reports' the right word?)

Obama's decision to renominate these figures demonstrates that the White House is not just willing, but eager to spotlight the remarkably slow pace of its judicial confirmations...

The administration has been left largely powerless to move Senate Republicans, save for somewhat-idle threats to keep Congress in session while individual nominations are debated. But they are finding more and more allies in their frustration from prominent judicial and political figures. On Monday, the American Constitution Society began circulating a letter signed by a group of former federal court judges appointed by both Democratic and Republican presidents, urging the Senate to take immediate action on languishing nominations.

Former federal court judges appointed by... Republican presidents? Surely, this is impressively neutral support for the President...  or so I will believe when we have a Republican President facing foot-dragging Democratic Senators and there's an equivalent letter signed by former federal court judges appointed by  Democratic Presidents.

Jeffrey Rosen on the two important race cases that will be argued in the Supreme Court in the next few days.

Northwest Austin Utility District v. Holder and Ricci v. DeStefano:

[Northwest Austin Utility District v. Holder] challenges Congress's reauthorization of the Voting Rights Act in 2006... But... Congress didn't engage in a serious empirical comparison of voting patterns in the areas of the country that are and aren't covered by the Voting Rights Act. The civil rights establishment was intent on preserving the status quo, which has led to the election of some African Americans in the South at the expense of the Democratic party as a whole; and ... neither Republicans nor Democrats were willing to acknowledge the evidence suggesting that discriminatory barriers to ballot access today, unlike the '60s, seem to be very rare....

[Ricci v. DeStefano is] the most controversial affirmative action case of the term, involving the promotion of firefighters in New Haven. In 2003, the city administered a promotion test. The test was validated by independent experts, as federal law requires, to ensure that it focused on job-related skills rather than purely cognitive ones. But, after the test was administered, none of the top-scoring candidates for 15 positions turned out to be African American. (Fourteen were white, and one was Hispanic.) ... [T]he city refused to certify the exam and promoted no one. The city was then sued by 19 white firefighters (and one Hispanic) led by Frank Ricci, a sympathetic 34-year-old white man. Ricci, who is dyslexic, spent more than $1,000 buying the study guides recommended by the city and paying an acquaintance to record them as audiotapes, which he listened to as he drove to and from work.

The Ricci case is a nightmare for moderate liberal supporters of affirmative action, because it presents the least sympathetic facts imaginable. The Supreme Court has said repeatedly that affirmative action is most troubling when its burdens are concentrated on a few innocent white people rather than being widely dispersed among a large group of white and black applicants....

If the Supreme Court strikes down part of the Voting Rights Act and the New Haven affirmative action program, [it] would force Obama to articulate a moderate, middle-of-the-road position on race that is rooted in empirical evidence rather than ideology....

With all the other problems facing the country--from the economy to the war on terrorism--Obama has no incentive to take on liberal racialists who believe we've made little progress on race since the 1960s or conservative color-blind partisans who insist that anti-discrimination laws are no longer necessary. But everything in Obama's background suggests that he has the inclination and ability to help the country transcend the extremes that have defined our racial politics for too long.

I added the boldface.