Chief Justice John Roberts is still “barely invited” to this year’s State of the Union, but the rest of us will have to absorb the festivities from the comfort of our own homes.
As is the quasi-annual tradition at Above the Law, we have prepared a State of the Union Drinking Game, as a solemn civic service to America’s lawyers who gather to watch constitutional order strain under the weight of sundowning fascism. It’s a speech that drove Justice Ginsburg to drink and that was during a sane administration. Traditionally this is a drinking game, but obviously it doesn’t have to be. For any of you concerned about crossing the line into substance abuse, feel free to play with any other metric you wish. Virgin margaritas, iced coffee, smacking yourself in the face with a hammer… whatever gets you through the spectacle of Donald Trump ambling through grievances while trying to avoid sharting himself… again?
If you’re one of the justices staying home because the president publicly called you an “embarrassment to their families,” maybe you can play along tonight, too!
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Unless otherwise noted, take a sip whenever these come up….
Every Absent Supreme Court Justice (one sip per empty seat): Let’s jump right in. Trump told the justices who ruled against his tariffs that they were “barely invited” to tonight’s speech and that he “couldn’t care less if they come.” He heaped insults upon Chief Justice Roberts and Justices Barrett and Gorsuch for daring to read the IEEPA and agree with the conservative conventional wisdom that starting trade wars is bad for business. It was a stark contrast to last year, when Trump personally thanked John Roberts for rewriting the Constitution to allow presidents to commit crimes as a treat. Chief Justice Roberts has maintained a perfect attendance record since 2005, but after the president’s tantrum, the Court as an institution should consider a total boycott to maintain its dignity. They won’t though… Finish your drink if every single justice boycotts.
Every Supreme Court namecheck: When President Obama called out the Citizens United opinion for inventing a new constitutional standard that opened the door for the sort of corrupt assault on democracy that… actually came to pass, he spoke about the Supreme Court as an institution, rather than calling out any individual justice. That’s not Trump’s style. As we saw on Friday, he’s ready to get personal whether he’s bashing Barrett or praising Kavanaugh.
Any Other Supreme Court Decision: He won’t be able to help himself from talking tariffs, but what about Roe or Dobbs or Obergefell? Finish your drink if it’s Marbury v. Madison.
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Attacks Lower Court Judges: The current administration loves attacking judges. The Justice Department is explicitly at “war” with them. A former senior official instructed the DOJ to say “fuck you” to the courts. All this has translated into a 327 percent increase in threats against federal judges. As trial judges continue to act as the constitutional guardrail — with judges appointed by every president from Reagan on putting the brakes on the executive — they represent an enticing target for a president in mid-rage rant.
His Fake U.S. Attorneys: Among Trump’s many beefs with lower courts is the fact that the lower courts have dutifully applied statutory requirements and disqualified his fake U.S. Attorney picks. Alina Habba eventually got drummed out of unlawfully serving as U.S. Attorney in New Jersey. Lindsey Halligan — a Florida insurance lawyer whose prior prosecutorial experience was exactly zero — got tossed from the Eastern District of Virginia after a judge ruled her appointment illegal and then she tried to stay on the job before another judge stepped in and put an end to it. Whenever one of these illegal appointments gets legally replaced, the DOJ fires that replacement (often over X). If they come up, take a sip of water and pretend it’s a real drink.
Threatens Lawsuit: Trump has claimed that his role as president means he doesn’t have the time to be sued — national security requires too much of him to be a party to a lawsuit. Correction: a defendant in a lawsuit. Because he’s shown no reciprocal hesitation in bringing lawsuits, including against the federal government itself, like the one seeking $10 billion that Attorney General Pam Bondi will surely defend vigorously on behalf of American taxpayers.
The Dow Jones: As Pam Bondi pleaded with Congress, we should all be talking about the Dow being over 50000. Finish your drink if Trump — accurately — edits this to 49000.
Trump Claims Credit For Preventing/Ending A War: While no one seems willing to ask him why his “day one” pledge to end the invasion of Ukraine never panned out, Trump is more than happy to take credit for ending wars that you never even imagined. He’s claimed to stop all the wars with France, which was news to the French. He used to take credit for resolving six wars. Then it was eight. How many will it be tonight? Who knows, but you’re sipping for however many it is.
The Nobel Prize: Relatedly, take a healthy sip if Trump renews his fixation with the Nobel Peace Prize, an award that he wants so badly he issued a veiled threat to Norway’s Prime Minister because he didn’t get one. He has since accepted the physical medal from Venezuelan opposition leader María Corina Machado — even though the prize cannot be transferred. After years of snide commentary from conservatives about “participation trophies” in youth sports, Donald Trump now shows off a participation trophy from a game he didn’t play. Finish your drink if he’s wearing the medal tonight.
Commentator Refers to the State of the Union as “Constitutionally Required”: A know-it-all move, but as lawyers we can appreciate that.
Insults Olympians: Trump already called one U.S. athlete a “real loser” for expressing mixed emotions about proudly representing the United States at the same time the nation debases itself on the world stage. The Women’s hockey gold medalists have already declined an invitation to be in Trump’s presence, and should get the better of the deal since they’re partying with Flavor Flav instead.
Birthright Citizenship: He’s going to talk about immigration — we aren’t trying to get anyone’s stomach pumped by including “ICE” or anything like that in this game. But that doesn’t mean we shouldn’t have an item related to his go-to subject. Trump’s been trying to end birthright citizenship by executive order since day one, and the courts have so far stuck to the Fourteenth Amendment saying what it explicitly says. Bonus if he ties birthright citizenship to attacking an Olympian.
Claims He Won the 2020 Election: Six years after the fact, Trump still seems interested in pretending he won the 2020 election. This is like winning the Super Bowl and spending the post-game press conference arguing about a regular season pass interference call from four years ago. Go ahead and finish your drink and make sure your passport is up-to-date if he says this is why he’s going to seize control of future elections.
Legal Enemies List: Take a sip for any of the following mentioned by name: Merrick Garland, Jack Smith, Letitia James, James Comey, Fani Willis, or any of the January 6 Committee. Bonus sip if the words “lawfare” or “weaponization” are used in the same train of thought.
Jeffrey Epstein: How do you set odds for this one? Is he going to pointedly avoid the document releases that implicate him thousands — if not a million — times while dragging his Attorney General Pam Bondi’s malicious incompetence under a spotlight? Or does he return to the playbook that’s incredibly served him so well for years and call his deep and meticulously detailed ties to a notorious sex trafficker “fake news”? Honestly, both seem entirely possible. Maybe this is the drinking game equivalent of a Bingo free space.
Joe Patrice is a senior editor at Above the Law and co-host of Thinking Like A Lawyer. Feel free to email any tips, questions, or comments. Follow him on Twitter or Bluesky if you’re interested in law, politics, and a healthy dose of college sports news. Joe also serves as a Managing Director at RPN Executive Search.