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."
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."
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."
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.
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.