The State of the Union Speech Can Be a Trial for Supreme Court Justices

From a New York Times story by Adam Liptak headlined “The State of the Union can be a trial for some Supreme Court justices”:

Chief Justice John G. Roberts Jr. does not enjoy attending the State of the Union address. He has called it “a political pep rally.”

“I’m not sure why we are there,” Chief Justice Roberts said in 2010, adding: “The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think, is very troubling.”

But the chief justice has continued to attend, while other members of the court have long ago stopped going. Justice Clarence Thomas, who has said that he could not abide “the catcalls, the whooping and hollering and under-the-breath comments,” has not gone for more than a decade.

Justice Samuel A. Alito Jr. called the addresses “very political events” and “very awkward,” adding, “We have to sit there like the proverbial potted plant most of the time.”

He did speak, sort of, in 2010 in response to President Barack Obama’s criticism of the Citizens United campaign finance decision, then just a few days old, mouthing the words “not true.” He has not been back since.

Last year, Chief Justice Roberts and Justices Stephen G. Breyer, Elena Kagan, Brett M. Kavanaugh and Amy Coney Barrett attended.

Scholars have found that the likelihood of attendance declines with age and length of service.

Attendance in a justice’s early years may be explained in part by loyalty and gratitude. As Justice Antonin Scalia once 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 Justice Ketanji Brown Jackson, who replaced Justice Breyer in June, will be present.

The justices say that attendance can be stressful, largely because they must make careful and largely coordinated choices about what statements from the president are uncontroversial enough to warrant applause.

That is hard, Justice Alito said, because presidents “will fake you out.” They may start with something bland, he said, like, “‘Isn’t this the greatest country in the world?’ ”

“So you get up and you start to clap,” he said, “and the president will say, ‘Because we are conducting a surge in Iraq’ or ‘Because we are going to enact health care reform,’ and then you immediately have to stop.”

It was not always so. In 1964, President Lyndon B. Johnson said, “Let this session of Congress be known as the session which did more for civil rights than the last hundred sessions combined.” Five members of the Supreme Court, including Chief Justice Earl Warren, applauded.

These days, Chief Justice Roberts said in 2019, the justices have to take pains to applaud only very occasionally. “It’s not our job to express support for particular policy initiatives,” he said. “So we do sit there like mannequins.”

He said the justices were not alone. “The Joint Chiefs of Staff are in the same position,” he said. “They’re sitting there like much better dressed mannequins.”

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