From President Jefferson to President Wilson, the "information" required by Article 2 was conveyed only in writing. One solution to all these bruised egos and hurt feelings is to return to a written State of the Union. Everyone can read it and emote freely while sitting on their toilets. Another option is for the justices to attend the State of the Union, with or without the black robes, and indulge in all the eye rolling, high-sticking, and grousing they would indulge in if, say, they were behind a lectern at the University of Alabama School of Law. The third option—the one exercised this year by Justices John Paul Stevens, Antonin Scalia, and Clarence Thomas—is not to come at all. For whatever it's worth, however, this was hardly the first State of the Union to have "degenerated into a political pep rally." Bill Clinton was booed during the 1994 State of the Union when he promised "only the wealthiest 1.2 percent of Americans will face higher income tax rates." And Ronald Reagan's 1987 State of the Union was described by Michael J. Casey as an effort to "fan the flames of the Cold War, to glorify the military, and to heap scorn on the poor." The audience ate it up.No wonder Scalia and Stevens dropped this scene from their schedules. The justices who still attend must have some vested interest in being seen there.
Roberts' word choice yesterday echoed almost perfectly the language used a few weeks ago by Justice Clarence Thomas, who offered up a lengthy defense of the Citizens United decision in a speech at Stetson University College of Law in Gulfport, Fla. Thomas explained that he had stopped attending the State of the Union because "it has become so partisan, and it's very uncomfortable for a judge to sit there. … There's a lot that you don't hear on TV—the catcalls, the whooping and hollering and under-the-breath comments."
"One of the consequences," Thomas added, "is now the court becomes part of the conversation, if you want to call it that, in the speeches." But with all due respect to Justice Thomas, the court already is "part of the conversation." It's one of three co-equal branches of government, save for the fact that this one branch has the power, as it did in Citizens United, to strike down longstanding, duly enacted laws. The court is in a constant political conversation with the other two branches. It's just that some of these conversations happen directly and some happen through a tortured game of judicial telephone.
Nobody knows better than the chief justice that partisan politics has infected the national conversation about the court. According to a CNN report today, a colleague of Roberts says, "The incident at the State of the Union only reinforced [Roberts'] concern the courts have become a political football. … He's tried—publicly and privately—to reach across the branches and sought to reinforce a level of mutual respect and understanding for their work. He felt like those [Obama] remarks really hurt what the court is perceived to be doing."
So the real question today isn't about judicial decorum and presidential propriety at all. The question is whether the Chief Justice genuinely believes that the best way to heal the partisan rift over the court is by lobbing long-distance partisan attacks at Congress and the president.
I score this one to the president and Justice Alito. At least they had the courage to insult one another face-to-face. But whether the Chief Justice cares to admit it to himself or not, a partisan attack on the two other branches of government is still a partisan attack on the two other branches of government. Even when it's whispered in Alabama.