Supreme Court Justices and the State of the Union

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In case you missed it, President Obama delivered the annual State of the Union address last night. The address is rooted in Article II, section 3 of the Constitution, which provides in part that the president “shall from time to time give to the Congress Information of the State of the Union.” Contrary to popular belief, the Constitution does not mandate that the address be full of platitudes and political posturing — that is merely a long-standing American tradition. Those interested in learning more about the history of the State of the Union address could do worse than reading the relevant Wikipedia entry.

One of the interesting things about the State of the Union is that the Justices of the Supreme Court are always invited. Sometimes that creates controversy, as it did in 2010, when President Obama criticized the Citizens United decision, causing Justice Alito to mouth the words “not true” on camera. Other times, things go a little too smoothly, as they did last year when Justice Ginsburg fell asleep.

How about this year? For starters, five of the nine Justices attended: the Chief Justice, and Justices Kennedy, Ginsburg, Breyer, and Kagan. That’s better than average attendance, as the New York Times discussed here. The attendance rate since 2000 has been just 32%. In several years, only Justice Breyer has been present. In 2000, Justice Breyer was ill and no Justice attended. Since his confirmation, Chief Justice Roberts has not missed a year. Though not addressed by the Times, it appears that there has been a recent surge in attendance, with six Justices watching last year and five this year. I suspect that the Chief’s example, and perhaps his behind-the-scenes influence, is partly responsible for that.

We’ll see if Chief Justice Roberts keeps going. Apparently, Justices become less likely to attend as they get older. Justice Scalia, who rarely appears now, noted that “when the president giving the State of the Union is not the man who appointed you,” there’s less incentive to show up. Justice Sotomayor, who was appointed by President Obama and who attended the last two years, skipped this year’s address in favor of a visit to Guam.

Pity the Justices. As the Times reported, attendance  is “stressful” because they “must make careful and largely coordinated choices about what statements from the president are uncontroversial enough to warrant applause.” In recent years, virtually nothing has warranted applause. In 2011, the Justices did not even clap when the President “expressed hope for a speedy recovery by Representative Gabrielle Giffords,” thought they did applaud when the President thanked the men and women of the armed forces for their service.

Attending may be awkward, and the Constitution requires the President to provide information to Congress, not the judiciary. Nonetheless, it would be a shame for one of the three coequal branches of government to be absent from an important ceremonial event such as the State of the Union address. So I’m glad to see more Justices attending, and, as noted above, I suspect that the Chief Justice deserves some of the credit. Let me end by noting that I’d be interested to learn more about judicial attendance at North Carolina’s State of the State address. Governor Perdue’s 2011 remarks are here, and she notes the presence of “[d]istinguished members of the judiciary.” Anyone know who that includes, or what our state’s relevant customs and traditions are?

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