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.

John Roberts. Click image to expand.
John Roberts

This year's State of the Union speech has kicked up a fair amount of speculation among court watchers. After last year's showdown between President Obama and Justice Samuel Alito over the president's criticism of the Citizens United decision and Alito's live, on-camera dissent, Alito indicated last fall that he probably won't be in attendance on Tuesday. Chief Justice John Roberts, while emphasizing that it was a decision that would be left to each individual justice, said after last year's speech that "to the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

Putting aside the fact that the State of the Union has been a political pep rally for much of its history, the question for the court, and the country, is this: Should the justices have ever been there in the first place?

Justice Antonin Scalia hasn't attended a State of the Union address in years. Clarence Thomas seems to come and go, although he recently explained, "I don't go 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." So if Thomas and Scalia are ditching and Alito bows out for 2011, it will leave the chief justice in an unenviable position. As my colleague Greg Stohr points out, if all four conservative justices stay home this year, "The court's contingent at the speech might consist largely—perhaps even entirely—of Democratic appointees."

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Justices Sonia Sotomayor, Ruth Bader Ginsburg, Anthony Kennedy and Stephen Breyer have all attended in previous years, so the prospect of the court's most conservative members boycotting the speech creates an appearance of a sharply divided, partisan court. Court historian David Garrow told Stohr that such a split would be an "explicit disaster." "If things devolve to where it looks like an implicit indication of support or nonsupport for whoever the current president may be," he said, "that's a big negative for the court."

To be sure, this is not a purely partisan issue. Former justices John Paul Stevens and David Souter stopped attending the State of the Union. And as Linda Greenhouse has written, there were years when Stephen Breyer attended all alone. Last year's criticism of the court from the president, while not quite unprecedented, was probably not pleasant for the justices to witness—and it upped the ante for all the justices, not just those who were in the majority in Citizens United.

But Roberts, who hasn't missed a State of the Union since he became chief justice in 2005, is in a uniquely sticky position. A decision to absent himself from this year's speech will be perceived as partisan retaliation for last year's speech. There's no way around it. And that would be the worst possible outcome for a court that devotes so much of its public energy to appearing above both politics and partisanship.

Both liberals and conservative court-watchers seem to agree that, for appearance's sake, it would be best for the court as an institution if either all the justices attend or none does. My friend Tony Mauro offers a bunch of good arguments for picking the former course: Acknowledging that "it was an awkward moment to see them sit stoically, as they must, while Obama partisans cheered his attack on the court," Mauro observes that the joint chiefs of staff must also sit stoically amid all the chortling and hollering because it goes along with any position of public office. He adds, crucially, that "as long as the Supreme Court continues its stubborn refusal to allow cameras to cover its proceedings, the State of the Union address represents the best opportunity for the American people to see the third branch of government in a small measure of public accountability."