Last year’s SOTU did not disappoint drama-seekers. As you may recall, an Article II vs. Article III smackdown took place: President Obama chided the Supreme Court for its Citizens United decision, with six members of the Court sitting a stone’s throw away from him, and Justice Samuel Alito responded by mouthing “not true” at the POTUS.
(Speaking of Citizens United, the decision celebrated its one-year anniversary last week, on January 21. And as Josh Blackman notes, the world has not come to an end, contrary to the dire predictions of distraught liberals. Of course, experts in this area — including some Obama-supporting liberals — told us that Citizens United wasn’t that big a deal.)
Let’s make some predictions, justice by justice….
The Supreme Court’s spokesperson, Kathy Arberg, told the WSJ Law Blog that she didn’t know which justices, if any, would be attending. So, in the absence of actual knowledge, here is some speculation.
UPDATE (1/25/11, 2:30 PM): The Court’s public information office announced that six justices will be attending the State of the Union, but did not reveal which six. See The BLT and the WSJ Law Blog for more.
Chief Justice John Roberts: In the wake of last year’s SOTU controversy, Chief Justice Roberts criticized the State of the Union as having degenerated into a “political pep rally.” I say there’s a 60-40 chance that JGR won’t go.
The chances of his going would be even lower if he were an associate justice. As chief justice, though, Roberts may feel that he has to keep up appearances. As Jan Crawford suggests, in a post over at Crossroads:
[A]s chief, he may decide he has to bite the bullet and go again this year. He has to consider the reputation of the Court and how it is perceived, and if four liberal justices go — and no conservatives — that could be interpreted as some kind of political statement. It would be especially stark this year, since a bunch of Republican and Democrat lawmakers have decided to buck tradition and sit together in peaceful harmony.
I still think that JGR won’t go, given how steamed he was over what happened last year. He can probably rely on Justice Kennedy (see infra) to represent the Republican-appointed wing of the Court. But I’d be happy to be proven wrong on this.
Justice Antonin Scalia: Negative on Nino. First, he didn’t go last year. Second, he said the following before the Federalist Society in November: “[The SOTU] is a juvenile spectacle, and I resent being called upon to give it dignity…. It’s really not appropriate for the justices to be there.”
Justice Anthony M. Kennedy: Crawford identifies the competing considerations here: on the one hand, Justice Kennedy “seems to like all that pomp and circumstance” (have you seen the rug in his chambers?); on the other hand, AMK wrote Citizens United, which was on the receiving end of President Obama’s slap last year.
So it’s a close call. But I predict that, in the end, Justice Kennedy’s love of publicity will carry the day.
Justice Clarence Thomas: I can’t remember the last time CT attended the SOTU. And given all the (presumably unwanted) publicity he’s been getting lately, he probably wants to keep a low profile these days. Asking questions at oral argument is more a part of his job description than attending the SOTU, and he doesn’t even do that — so why should he show up tomorrow night?
(If Clarence Thomas ever appears at the State of the Union, Kashmir Hill and I would like to see him delivering it, not sitting in the audience.)
UPDATE: As noted last year by the ABA Journal, Justice Thomas is on the record as avoiding the SOTU “because it’s become so partisan,” making it “very uncomfortable for a judge to sit there.”
Justice Ruth Bader Ginsburg: RBG attended last year, and she will probably want to attend again, to send the nation the message that she’s doing just fine (despite her advanced age and health issues). If she can take the bench the day after her husband’s passing, she can make it to the State of the Union.
Justice Stephen G. Breyer: Justice Breyer loves to brag about his time on Capitol Hill (he served as chief counsel to the Senate Judiciary Committee), and he is something of an Article I Groupie. If he had a Facebook profile, he’d list “deferring to Congress” under his “Activities and Interests.” So expect him to appear — in fact, if only one justice out of nine shows up tomorrow night, the one will be SGB.
Justice Samuel A. Alito: Once bitten, twice shy. Justice Alito previously stated, in remarks before the Manhattan Institute, that he probably wouldn’t attend this year. And now it’s confirmed: SAA will be in Hawaii for “a long-standing teaching engagement,” according to Jan Crawford.
Justice Sonia Sotomayor: The Wise Latina is a social creature: she loves a good party, and she loves to dance. Look for her to sashay down that aisle, toe to toe with lawmakers and Cabinet members, en route to the justices’ primo seating at the front of the chamber.
Justice Elena Kagan: It would be her first State of the Union as a justice, so expect to see the Divine Miss K in the House. And don’t worry about an Alito-esque faux pas; Lady Kaga has a great Poker Face.
So those are my thoughts on whether the justices will attend. My bottom-line prediction: five justices — Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan — will show up.
Here’s a related question: Should they attend? Professor John Yoo doesn’t think so:
No matter what the Justices do — go or don’t go to the State of the Union — observers will take it as a statement on the current administration. So the simplest thing to do is stay home. They can avoid a long, boring speech and spend more time reading and writing.
In other words, sitting through the SOTU is… torture?
With all due respect to Professor Yoo, we hope as many justices as possible ignore his advice and show up in their robes. It’s fun to see some fraction of The Nine rubbing shoulders with luminaries from the other branches of government. And it’s nice for ordinary Americans to be reminded of our courts, our judges, and the important work that they do.
The judiciary might be the least dangerous branch, but it’s definitely the most fabulous. Here’s to hoping that the justices turn out in force tomorrow night!
What are your thoughts on SCOTUS at the SOTU? Take our two polls at the very end of this post.
Should the Supreme Court Justices Avoid the SOTU Address? [Ricochet / John Yoo]
Will the Supreme Court Justices Return to the State of the Union? [Crossroads / CBS News]
The Question for the Chief Justice: To Show or Not to Show on Tuesday? [WSJ Law Blog]
Catcalls and Muttering Keep Justice Thomas Away from State of the Union [ABA Journal]