C'mon, Your Honors, look lively!

Tonight, as everyone knows, President Barack Obama will deliver his State of the Union address. The speech starts at 9 p.m. (Eastern time). For real-time reactions over Twitter, follow @ATLblog, @DavidLat, @ElieNYC, and @StaciZaretsky. For a post-speech wrap-up, check Above the Law, either late tonight or tomorrow morning.

For Supreme Court nerds, here’s the perennial question: How many members of SCOTUS will show up at the SOTU? Feel free to make your guesses, in the comments.

Here’s some historical perspective to inform your speculation….

Over at the New York Times, Adam Liptak has an exceedingly interesting article about Supreme Court justices attending the State of the Union. He begins by revisiting recent history, including the 2010 dust-up between President Obama and Justice Samuel Alito:

[Justice Alito mouthed] “not true” after President Obama took a shot at a six-day-old Supreme Court decision called Citizens United. Mr. Obama said the decision had “reversed a century of law” and would “open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”

On substance, Justice Alito probably had the better of the exchange: the law the decision partly struck down was enacted in 2002, and the older of the two precedents it reversed was from 1990. And the majority went out of its way to say it was not deciding “whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation’s political process.”

As the D.C. Circuit Review put it, “Justice Alito: 1; President Obama: 0.”

The Alito v. Obama confrontation took place in 2010. Despite the controversy it generated, it didn’t dampen attendance in 2011: last year, six justices showed up for the SOTU (which is impressive!).

Six out of nine justices is especially impressive by the standards of recent history. From a great study by Professors Todd Peppers and Micheal Giles (discussed extensively in Liptak’s article):

In the period from 1982 (there was no address in 1981) through 1999… on average only 56 percent of the justices attended and no more than six justices attended any of the addresses (save for two years early in this period, 1982 and 1984). In the period from 2000 forward, on average only 32 percent of the justices attended the State of the Union Address. This includes a three-year time period when only a single justice — Stephen Breyer — represented the Court at the annual address. While there has been an uptick in attendance during this period (with six justices attending the two most recent addresses), the contrast to the earlier time periods is quite remarkable.

Other conclusions from the study, as summarized by Liptak:

Professors Peppers and Giles found that the likelihood of attendance declined with age and length of service.

Attendance in the early years of a justice’s service may be explained in part by loyalty and gratitude. As Justice Scalia put it, it is easier to stay home “when the president giving the State of the Union is not the man who appointed you.” On that logic, it seems likely that Justices Sonia Sotomayor and Elena Kagan will be on hand Tuesday night.

The study found no other partisan correlations: justices are not more likely to attend addresses given by presidents of the same political party as the one who appointed them.

“I went into this project assuming that ideology was going to explain these patterns,” Professor Peppers said. “That doesn’t appear to be the case.”

That’s an interesting — and impressive — finding. In a day and age when so many people see law as politics by other means, it’s nice to see that ideological orientation doesn’t explain SOTU attendance patterns.

This brings us to the normative question: Should the justices attend the State of the Union? Even if it can be awkward for them sometimes, Professor Giles favors it, telling the Times: “This is a very visual age. I do think that it’s important that they show up. It shows an image that is beneficial to the court.” I expressed similar sentiments last year:

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.

Above the Law readers also favor the justices going to the State of the Union. In our 2011 opinion poll, 56 percent of you expressed the view that SCOTUS members should go to the SOTU.

So how many justices will show up for tonight’s proceedings? Check back in with us later, here at ATL or on Twitter, to find out. We’ll see you this evening.

Of Potted Plants and Political Images: The Supreme Court and the State of the Union Address [Roanoke College]
For Justices, State of the Union Can Be a Trial [New York Times]
Study: Justices Flunk Attendance at the State of the Union [WSJ Law Blog]
Justice Alito: 1; President Obama: 0 [D.C. Circuit Review]

Earlier: Prior ATL coverage of the State of the Union
SCOTUS Slammed at SOTU; Alito Mouths ‘Not True’ at the President


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