After last year’s State of the Union “shout out” to the Supreme Court over its controversial campaign finance decision, speculation has been rife throughout the legal community and elsewhere over which justices would attend tonight’s speech.
Well, the Supreme Court has ended the speculation. Speaking through its information office, the Court reports that six justices will take their seats in the House chamber. There is no official word on which six of the nine will show, but some additional speculation helps to put faces on the number.
Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan are the likely sextuplet.
Justice Samuel Alito, now famous for mouthing the words, “Not true,” in response to President Barack Obama’s characterization of Citizens United v. FEC during last year's address, will be about as far away as possible and still be in the United States tonight. He is in Hawaii giving a speech to the Hawaii Bar Association.
Justices Antonin Scalia and Clarence Thomas rarely attend State of the Union addresses. Scalia last year in a speech to the Federalist Society called the annual gathering on Capitol Hill “a juvenile spectacle. And I resent being called upon to the indignity.” Thomas has said the event has become too “partisan” and he finds it uncomfortable as a judge to sit there. Scalia appeared yesterday before the House Tea Party Caucus to discuss how to write constitutional legislation. The talk was hosted by Rep. Michelle Bachmann (R-Minn.).
The real question of who would attend this year has focused on the chief justice. Roberts has attended every State of the Union address since his confirmation in 2005. But after President Barack Obama’s criticism of the Citizens United decision in last year’s speech, Roberts wondered publicly if the justices should attend an event that has become, in his words, “a pep rally.”
Roberts, however, has a strong sense of the Court as an institution, some court watchers noted, and of his own role as its leader, both of which may play a part in his decision to appear.
I'm sure that the joint chiefs must feel a similar awkwardness. They appropriately should not display political partisanship, and yet the president is also their commander in chief. When to applaud? Is standing ever appropriate? Parts of the speech are purely patriotic and non-partisan, but other parts may (or may not) be obliquely referring to partisan policy goals. For example, extolling scientific education is innocuous enough, but if you know that there's a concurrent political fight over education funding and testing standards, does it suddenly become a partisan statement? Just ... awkward.
Posted by: Chris Hall | January 26, 2011 at 12:35 PM
If I were a justice, I would NOT attend ANY state of union address. There is NO need for any justice to rob-shoulder with anyone of the executive or the legislative.
Three separate powers can indeed work together without having to be obligated to attend or feel guilty or harshly critiqued for not attending a certain function.
Posted by: Prof. John Moye | January 25, 2011 at 08:20 PM
As for Mr. Justice Scalia,
I can see where one who was willing to conjure up a one-time, never-to-be-repeated reason to stop the vote recount in Florida that would decide the outcome of a presidential election, would be so disdainful of the traditional, once-a-year assembly of the highest officials of all three branches of the federal government.
Let him sit at home and stew in his arrogance.
Posted by: David W. Brown | January 25, 2011 at 06:22 PM
In what way will America be damaged by the absence of a few justices?
Posted by: Sidney Gendin | January 25, 2011 at 05:45 PM