The State of the Union and the Supreme Court: What if no Republican appointees showed up?

The law, lawyers, and the court.
Jan. 21 2011 6:40 PM

Should They Stay or Should They Go?

Some Supreme Court justices are still in a snit over last year's State of the Union speech.

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I agree. Given that most Americans will never see the justices again after their confirmation hearings, attendance at the State of the Union is quite literally the only glimpse they will have of the third branch at work. The justices who complain (as Alito recently did, saying he had to sit there "like the proverbial potted plant") seem not to appreciate that the act of distinguishing themselves from those partisans is precisely the point. Anyone who has been through a modern confirmation hearing could probably teach a clinic on sitting for hours like a potted plant. It may be the single most important prerequisite for the post of justice.

The justices attend the State of the Union in their identical black robes for the same reason they are expected to sit there impassively amid the mayhem: They are supposed to be a testament to the fact that they are different from the elected officials all around them. Instead of complaining about how awkward it is to have to hide their feelings and ideologies, the justices should avail themselves of this once-a-year opportunity to show the public that their feelings and ideologies don't matter in the first instance. This year, in the wake of the Tucson tragedy, an institution that can light the way to civil disagreement would be more welcome at the State of the Union than ever. Yes, it's undoubtedly a tricky performance. But even if it's just an act, it's an act the justices play out most days at oral argument, where they sit impassively and decline to cheer and whoop and holler, even when they wish they could.

Some of the justices seem to think sitting tranquilly while everyone around them shrieks with partisan laughter makes them look like chumps. Another way to think of it is that they are modeling dignity and civility, and they should cherish the opportunity to do just that.

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Finally, some of the same justices who decline to attend what Scalia recently decried as the "juvenile spectacle" that is the State of the Union, have shown themselves all too willing to appear in other settings where ideological hectoring is not just part of the program but seemingly the entire objective. Scalia and several of his colleagues routinely attend the Red Mass, which occurs every fall. And if the State of the Union is too embarrassingly political and partisan to endure, how is teaching a constitution class for the Tea Party Caucus the day before any less so? Isn't it preferable for a member of the Supreme Court to attend openly partisan events that are televised—and to do so en masse—than to attend those that happen in secret? If anything is likely to harm the prestige of the court, it's this bizarre project of selective invisibility on which some of the justices have set themselves.

As is so often the case in matters of the court's public image, by failing to work together to foster the appearance of bipartisanship, the nine justices are working against the interests of the institution as a whole. The chief justice delivered an impressively bipartisan State of the Judiciary speech last month, blasting both sides for holding up much needed judicial appointments. But for those inclined to believe that the federal judiciary is hopelessly and irreparably broken—and partisan to boot—this year's State of the Union may provide a damning last snapshot: One of the court's most conservative members giving a group of Tea Party Republicans a private Commerce Clause tutorial on Monday, while, the next day, a Democratic president lectures the court's moderates and liberals alone.

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