Last year, President Obama publicly upbraided the Supreme Court during his State of the Union speech for its Citizens United decision, claiming — incorrectly — that it reversed “a century of law.” In fact, it reversed the McCain-Feingold law that barred corporations from spending money on political advertising within a certain period of time before an election, not the “century of law” that barred corporations from donating to political candidates, which is still very much in place. Justice Samuel Alito knew the difference, which is why he shook his head and mouthed the words “not true,” which so offended Obama that the White House continued its ignorant attack on the Supreme Court for another few days rather than picking up the decision and reading it.
Now CBS wonders whether the Supremes will bother to show tonight — and at least some of them will find other ways to keep themselves amused rather than participate in what Justice Antonin Scalia calls “a juvenile spectacle”:
And ever since, we’ve all wondered whether any of them would return to another State of the Union. Ever again.
So we can take Alito off the guest list. But don’t go all “Justice Alito is still mad as hell over what happened last year, and he’s not going to take it anymore, so he invented an excuse to go up to Baltimore for the night.” No. Negative. Alito had a long-standing teaching engagement in Hawaii.
That leaves eight others. I’d say we can also scratch off Justices Antonin Scalia and Clarence Thomas from the “YES” list. Scalia told me in an interview at the Federalist Society dinner last fall not to expect him. “It is a juvenile spectacle, and I resent being called upon to give it dignity,” he said. “It’s really not appropriate for the justices to be there.” So that sounds to me like a big N-O. And Thomas doesn’t go for similar reasons.
Now we’re down to six. Moderate conservative Justice Anthony Kennedy seems to like all that pomp and circumstance, but he didn’t appreciate the president’s shot last year (he wrote the campaign finance decision). So will he stay away? And then what about the four liberals: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan? Maybe they’d like to attend, since it will be Kagan’s first chance as a new justice, and she can wear that black robe and look inscrutable.
And this is where it gets really interesting. If Kennedy stays home and the four liberals decide to go, then what does Chief Justice John Roberts do? He so does not *get* why justices go to the State of the Union in the first place, and he’s criticized the event for having degenerated into a “political pep rally.”
In the best of all possible worlds, the Supreme Court would decide as a group whether to attend or not and then unanimously follow through on that decision. Obviously, we don’t see a lot of unanimous decisions on the law from the court, but this question deserves some thought not just for this presidency but as a tradition. Roberts is right that the State of the Union has long since become a political pep rally, something that started long before Obama, and as the one ostensibly non-political and non-partisan branch of government, the captive presence of the Supreme Court among the partisan cheers is quite unseemly.
If Roberts can’t get unanimity, though, the members of the court who are in town at the appointed time of the SOTU should make an appearance. Having just the liberal judges show for Obama and then presumably just the conservative justices show for a Republican President would be even more unseemly. Having been the target of the White House political team after last year’s SOTU, Alito can certainly be excused. And perhaps the members of the court can at least agree that an explicit attack on one of their decisions by a President in a State of the Union speech in the future will result in the entire court walking out on the rest of the speech, in what would be the only rebuke that the court’s members can deliver in that setting.
Update: Fox News reported earlier that six of nine will attend tonight, with Alito and Scalia definitely out. Although no announcement has been made, the third no-show is believed to be Clarence Thomas, who had earlier stated that he would not attend due to the “partisan atmosphere” of these events.