State of the Union

Last year, Justice Scalia told The Hill that he hasn't, "gone to the State of the Union in at least 10 years, and I’m not starting tomorrow night either." He continued the practice last night when he once again declined to attend the President's annual State of the Union address. Only five of the nine Supreme Court justices were in attendance: Chief Justice Roberts and Justices Kennedy, Ginsburg, Breyer, and Kagan.

Every year the State of the Union (or "SOTU") stirs Supreme Court commentators into a discussion about the public presence (or lack thereof) of the Court. For some, the absence of justices displays a barefaced "politicization" of the Court - justices who don't want to attend only do so because they disagree with the current president's ideology or political party.  Adam Liptak wrote an excellent article at the New York Times exploring this argument, citing a study by two professors (Todd Peppers of Roanoke College and Michael Giles of Emory University) who instead found that, "justices are not more likely to attend addresses given by presidents of the same political party as the one who appointed them."

For others, the argument is tantamount to those made when debating the advantages of televised oral argument: Television is one of the cardinal means of reaching a large American audience, and if the Supreme Court is going to make decisions that affect the United States the people should have access to that information.

Most commentators agree. Professor Giles told Liptak that, "This is a very visual age...It shows an image that is beneficial to the court." David Lat from Above the Law wrote last year that "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." Eva Rodriguez from PostPartisan wrote that it was particularly important for Chief Justice Roberts to attend and, "prove that [he] is above the fray, unfazed by attacks and unbowed by pressure - judicial independence incarnate."

In fact, the only people who seem to not want the justices there are the justices themselves. Justice Thomas has groaned about the bickering between members of Congress, Justice Alito has bemoaned the awkwardness of it all, and Justice Scalia has called it a "juvenile spectacle."  It's a similar argument that many people make when they receive an invitation to a loathsome family reunion.

"I'm sorry, my allergies are acting up in a terrible way."

"Deepest apologies, I'll be in Hawaii for a speaking engagement." (Or Guam)

In fact, the State of the Union is in many ways the annual family reunion for the United States Government; It is the only time when Congress, the President, and the Supreme Court can be spotted in the same room. I recognize the importance of having separate branches of government kept separate, but the symbolic display of cohesion is equally as important - especially in a politically charged election year. Justice Breyer put it best when he explained to George Stephanopoulos:

"I think that the reason we should be there is because, particularly today, where for better or for worse, people get lots of their information visually. It shows in that room, this is your federal government. The President is there, the Cabinet is there, the Congress is there, the Joint Chiefs are there...the judges have a role in this government."