Should the Supreme Court Justices Avoid the SOTU Address?

As I’m sure you recall, at last year’s State of the Union address, President Obama shocked the legal community–and certain sectors of the public, more generally–when he slammed the Supreme Court for its recent ruling on Citizens United. Alito mouthed the words “not true” in response.

As a result, some news reports are suggesting that certain justices may not show up to this year’s SOTU. Alito, for instance, has said that he won’t attend the SOTU. But what about Chief Justice Roberts, who compared the SOTU to a “political pep rally” last March? Here’s the WSJ law blog:

If Roberts and other justices decide not to attend the address next Tuesday, it sends a loud message “that they were offended by Obama’s attack,” said Lucas A. Powe Jr., a Supreme Court historian who teaches at the University of Texas School of Law.

Supreme Court Justices should not be in the business of setting up the stage props — that’s Rob Long’s job. By showing up again, the Justices risk being used as an accessory to President Obama’s latest heated claim, and even the subject of more crude political efforts to pressure our independent judiciary. Maybe Obama won’t even wait until after they have decided a case. Why not harangue the Justices before Obamacare arrives on their docket?

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.  I wouldn’t go as far as some have, and say that all Justices should stay away because they should not show signs of support for the government.  The judges can be, and are, patriots.  But they should just be consistent about it, no matter who happens to be President, so they do not show any partiality to a particular political party or individual person in office. 

  1. David Limbaugh
    C
    Kenneth: I don’t think anyone should attend SOTU.  The thing is an anachronism.

    It made sense back in the day, when politics wasn’t a 24/7 business, for the President to be required to inform the legislature what was going on in the executive branch. 

    But it’s long since become nothing other than gaseous political pageantry. 

    Do away with the thing.  Let the White House email a Powerpoint presentation to Congress.  · Jan 21 at 11:50am

    Edited on Jan 21 at 11:54 am

    Kenneth: You’ve captured it concisely with “gaseous political pageantry,” but sadly, that’s precisely why it won’t be canceled: rhetoric is their stock in trade and they’ll never miss an opportunity to capitalize on the medium. This one will be the next volley that began with the AZ speech — another designed to boost his ratings with more “hope and change.” That’s basically what he’s gotten back to — it’s his bread and butter, the only thing that’s ever worked for him. Feel good platitudes and bromides.

  2. Kenneth
    David Limbaugh

    Kenneth: I don’t think anyone should attend SOTU.  The thing is an anachronism.

    It made sense back in the day, when politics wasn’t a 24/7 business, for the President to be required to inform the legislature what was going on in the executive branch. 

    But it’s long since become nothing other than gaseous political pageantry. 

    Do away with the thing.  Let the White House email a Powerpoint presentation to Congress.  · Jan 21 at 11:50am

    Edited on Jan 21 at 11:54 am

    Kenneth: You’ve captured it concisely with “gaseous political pageantry,”

    Thanks, David.  You turn a nice phrase yourself.

  3. Kervinlee

    The thing is such a politicized mess but we’re stuck with it in our media age.

    If all the justices stay home we will hear endless analysis about incivility and payback.

    If half (more or less) stay away the analysis will focus on the divided nature of politics.

    What a bore. The prez should just Fed-Ex the thing over and be done with it.

    Wasn’t it the odious Woodrow Wilson who started the SOTU as performance art anyway?

  4. Richard Epstein
    C

    I think of this problem somewhat differently from John. There are two ways to look at this, one is as a game without cooperation between the President and the Justices, and one in which there is some cooperation, also known as quiet diplomacy, between them. I thought that the President was wrong on substance with respect to Citizens United and corporate speech.  But he was worse on taking to a public forum to castigate justices who by long standing conventions have a duty to remain silent.  It was that sense of frustration that drove Justice Alito to speak, which then generated the larger flap.

    No one needs a repetition of that fiasco.  But it would be a loss to the tradition if the conservative justices thought it appropriate to absent themselves from the talk, so as to emphasize the gulf between them on the President.  So someone has to reach out to someone. As a matter of political decorum, I think that the President should reach out to the offended justices, apologize quietly, and let them be assured that he will not make partisan remarks on the judiciary but talk about how civility extends to judicial disputes, and that these rules bind him as they do others.  He need not make any substantive change in his position.  But he has to guarantee that the conservative justices will not be blind-sided again.

    Whether Obama’s move to the center will lead him to take this course of action, i cannot say.  If the justices do come, I think that we can assume that the conversations took place.  If they do not, people will be left to speculate.  This is too important a symbolic issue to be left hanging.  The President has to be, and for his own success, should be the first mover.

  5. Jim Brown

    I believe you are right on the money, Professor.  Mr. Obama has the bully pulpit and used it as a bully last year.  It is up to him to make amends. 

  6. Kenneth
    Kervinlee: The thing is such a politicized mess but we’re stuck with it in our media age.

    If all the justices stay home we will hear endless analysis about incivility and payback.

    If half (more or less) stay away the analysis will focus on the divided nature of politics.

    What a bore. The prez should just Fed-Ex the thing over and be done with it.

    Wasn’t it the odious Woodrow Wilson who started the SOTU as performance art anyway? · Jan 21 at 12:17pm

    Actually, Washington and Adams gave addresses.  Jefferson simply distributed a letter, which then became the norm until Wilson.

  7. KC Mulville

    This is the one time that Congress behaves like Parliament, with all the standing and applause and occasional hollering. Were I dictator for an hour, I would decree that the president must take questions at the State of the Union, as does the prime minister. 

    Frankly, if one chief of a government branch can deliver a speech to Congress, why can’t another? Why can’t we allow the Chief Justice to discuss the State of the Law? (Yes, and take questions.) Let the CJ spell out some perceived gaps in current law, or areas where the Court can recommend improvement. 

    We treat law like American Idol. We stage performances, then wait anxiously for the dramatic revealing of the decision (usually at the end of June) of who the winner is. Out of curiosity, why can’t Congress or the president ask the Court for some legal guidance before they make the law in the first place? When he wanted to know whether waterboarding was legal, why didn’t Bush ask the Supreme Court? Why guess and take a chance on the activity, then wait nervously for the decision? 

  8. Nathaniel Wright

    I believe that the President should deliver the State of the Union address to Congress and that the Supreme Court Should Attend.  I also believe that it should not be done as a prime time broadcast.

    It should be an intimate conversation between the branches of government that establishes the order of business/conflict for the coming year.  Instead it has become a series of stories about individuals who have been affected by policies or the lack thereof.

    It is showmanship and not a serious event. 

  9. Michael Labeit

    If the President was a skilled orator and could give a Joseph Addison-caliber speech in early modern English with a Timothy Sebastian accent, extolling the ideals of republicanism, freedom, and private property, then the SOTU address would have redeeming value.

  10. Charles Mark

    Hasn’t Breyer already said he’s attending? I think I saw him say it while promoting some book.He seemed a rather odious type.Surely the three ladies will also turn up and all the talk will be about whether Kennedy will swing by?As usual.

  11. Mike LaRoche

    Oh, for a president who would get rid of the pomp, circumstance, and meaninglessness of the State of the Union Address and refrain from attending the ridiculous White House Correspondents Dinner, I would give anything.

  12. Chris Johnson

     Prof. Epstein’s response has merit, as does KC Mulville’s; mine does not.

    I think that as Boehner has declared open seating, the SC should sit behind Obama, where, should they feel so compelled, they might make donkey ears behind his head.

    Alternarively, we might just erect a Mendacity Meter behind the podium to alert the viewers when the speaker is straying.

  13. Charles Mark

    Suppose Professor Obama was to make the closing arguments to the Supreme Court in defence of the individual mandate?

  14. Stuart Creque

    The Justices should attend, with the prior agreement amongst themselves that if the President uses the SOTU to criticize the Court, all of the Justices present will immediately rise and leave the House chamber.  If the President disrespects a separate and co-equal branch of the Federal Government, the members of that branch should not be bound by convention to sit there and take it.

  15. Patrick Shanahan

    I don’t understand why the SCOTUS attends at all. It by definition creates a false sense of subservience to the Executive Branch. The Constitution says that the President must advise Congress of the state of the union.  The Court has no business getting in the middle of it, and nothing good can ever happen by their participation.

  16. Dan Holmes
    Richard Epstein:

     So someone has to reach out to someone. As a matter of political decorum, I think that the President should reach out to the offended justices, apologize quietly, and let them be assured that he will not make partisan remarks on the judiciary but talk about how civility extends to judicial disputes, and that these rules bind him as they do others.  He need not make any substantive change in his position.  But he has to guarantee that the conservative justices will not be blind-sided again.

    Whether Obama’s move to the center will lead him to take this course of action, i cannot say.   · Jan 21 at 12:19pm

    Edited on Jan 21 at 12:21 pm

    Professor Epstein, do you honestly think that Obama has political decorum and will actually reach out and apologize to the offended justices?  Or that he has indeed moved to the center?  You talk as though his recent feign toward the center is real.  Nothing about this man is real.  

  17. George Rapp

    The Justices – at least the five mostly-sensible ones – should skip this year as payback for last year’s castigation from the President, then come back next year.  (Alternatively, although it’ll never happen, they should stand up and leave en masse the next time President Obama mischaracterizes a SCOTUS ruling …)

  18. Tommy De Seno
    C

     Do away with all the props and applause.  It should be a report on where we are delivered with facts not rhetoric.

    But I’m not much of a pomp and circumstance guy anyway.  Were I President, there would be no inaugural day celebration.  I find them divisive no matter which side does them.

    I’d rather see a President get sworn in and head straight to his desk.

  19. Kenneth

    I don’t think anyone should attend SOTU.  The thing is an anachronism.

    It made sense back in the day, when politics wasn’t a 24/7 business, for the President to be required to inform the legislature what was going on in the executive branch. 

    But it’s long since become nothing other than gaseous political pageantry. 

    Do away with the thing.  Let the White House email a Powerpoint presentation to Congress. 

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