Former Supreme Court Justice Sandra Day O’Connor declined to step into the uproar over secret collection of Americans’ phone records, saying a close look at the facts by courts could determine whether the government acted properly.

“I don’t try to monitor what the other branches do,” O’Connor told reporters after speaking about judges’ independence.

The court’s first female member was an influential swing voter who criticized the government’s strategy in the war on terror. She wrote in a 2004 ruling that “a state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

She declined Thursday to say whether the phone record database created by the National Security Agency went too far without seeing “specific facts.”

“The courts have always been generous in interpreting the power of the executive branch during wartime to meet the challenges, so you’d have to look at each case and see what the charges are and what the facts are before hazarding some guess about abuse, if any,” O’Connor said.

Earlier, she told an audience at George Washington University that it’s understandable that people are unhappy with how courts handle contentious issues, but it’s not acceptable for politicians to attack judges for doing their job.

O’Connor said there have been congressional threats to impeach judges and take away courts’ authority to deal with cases.

Although the Supreme Court has not considered the issue of gay marriage, other courts have, she said.

“There have been some state court decisions that have been very unpopular with many people. And that’s fine. That’s understandable,” O’Connor said. “But should it be transferred into retaliation against judges who try to deal fairly and impartially with actual issues coming before them? That’s the concern.”

Judges cannot fully respond to retaliation, she said.

“You can’t as a judge run out and borrow a video camera and go public with all these things. That just doesn’t work very well. So we count on lawyers and citizens to do the job,” she said.

O’Connor, a moderate appointed by President Reagan, was replaced by Samuel Alito, a former government lawyer and appeals court judge who is expected to be more deferential to the government.

She was part of a panel discussion on judges’ independence, sponsored by the American Bar Association, the Constitution Project and Court TV.


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