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." 

Since Noah Feldman will be on one of the panels tomorrow at the Brookings Institute (and because this quote is just really funny), I decided to share a "Quote of the Day" post from Above the Law.

His quote is part of an article he wrote in response to David Segal's piece in the New York Times, "What They Don’t Teach Law Students: Lawyering." In it, Professor Felman argues that law professors play a momentous role in policy-making, especially when you  look at just how many high-level positions are staffed by former law professors. He also slips in a few quips about FDR and the Supreme Court, in homage to his recent book.

  I think the dislike, though, is a result of law professors being too much in the world. You see, law professors -- and I should disclose here that I am one -- very nearly run the world, or at least certain parts of the U.S. government. When you include Justice Anthony Kennedy, who taught nights, they make up the majority of the Supreme Court.

He also slips into the article a few quips about the late Supreme Court Justice Felix Frankfurter in the New Deal era as he progresses through a historical summary of law professors in government:

Ever since Felix Frankfurter sent his “happy hot dogs” to write New Deal legislation and staff FDR’s new agencies, law professors have been trying to affect the way government works...

If you'd like to read more, head over to Above the Law: http://abovethelaw.com/2011/11/quote-of-the-day-law-professors-rule-literally/

The rest of Noah Feldman's article is here: http://www.bloomberg.com/news/2011-11-27/for-better-government-don-t-kill-all-the-lawyers-noah-feldman.html

I apologize for the lack of updates, work has a way of interfering. Tomorrow I'll be attending a conference at the Brookings Institute: "The Conservative Legal Movement and the Future of Liberal Jurisprudence." I'll post a review of the event on Friday.

Some names you might recognize from the press are:

• Jeffrey Rosen (author of The Supreme Court: The Personalities and Rivalries That Defined America) 

• Dahlia Lithwick, Supreme Court correspondent from Slate

• Jeff Shesol (author of Supreme Power: Franklin Roosevelt vs. the Supreme Court)

If you follow the legal side of things, you might also recognize some notable professors:

• Noah Feldman (Harvard, also the author of Scorpions, another great read about FDR and the Court)

• Pamela Karlan (Stanford, Public Interest, and a Board member at the American Constitution Society)

• William Forbath (University of Texas, here is a recent article by him on originalism)

• James Ryan (University of Virginia, oversees their SCOTUS clinic, argued Abbott v. US in OT10)

• David Strauss (University of Chicago, author of The Living Constitution (Inalieable Rights))

• Michael Klarman (Harvard, who has written extensively on racial equality before the Supreme Court)

Also in attendance will be Lee Liberman Otis from the Federalist Society (she previously clerked for Justice Scalia, and is currently an adjunct law professor at Georgetown) and Judge Harvie Wilkinson III from the Fourth Circuit Court of Appeals (a conservative, he voted to uphold indefinite military detentions and has been considered for a Supreme Court nomination).