“He shall from time to time give to Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient.” By any straight reading of the clause in the Constitution relating to the State of the Union, the justices of the Supreme Court are not meant to play a role. All the same, six of the Court’s justices chose to attend last week’s State of the Union. Their statuesque yet blank expressions stood in sharp contrast to the animated, opinionated faces of the members of the chamber in which they sat. As hundreds of news cameras focused on the justices, attempting to catch the most imperceptible sign — a quivering lip, a raised eyebrow — the event seemed even more of a parade than it already is; the justices themselves had no true business attending the speech at all.
Despite the traditions and ceremony surrounding the State of the Union, tradition itself does little to explain why the justices still choose to attend. The practice of Supreme Court justices attending the speech is a relatively modern invention: starting in the 1950s, justices began to attend the event regularly (and cheer, for that matter). In response to the somewhat uninhibited climate of previous years, the justices of the 1970s learned to sit impassively during the speech, beginning a practice which is followed to this day. Justices Scalia and Thomas have been the two noteworthy exceptions over the years: Scalia has not attended the speech in nearly two decades, describing the event as a “childish spectacle.” Indeed, for what is often considered a key modern tradition surrounding the speech, the attendance record of the justices is rather spotty. In 1975 and 2000, for example, not a single justice was present.
Scalia’s intense stance may be somewhat unsurprising, yet the argument for why justices should attend is rather weak. At best, the justices serve as stoic bystanders. While that type of presence would ideally help the public see the Court as apolitical, it has done the opposite in recent years. Knowing the justices are expected to remain expressionless, media outlets have grown increasingly attentive to their reactions. With hundreds of cameras trained on him during the 2010 State of the Union, Justice Alito visibly replied — mouthing “not true” — to President Obama’s critique of the Citizens United decision. That brief moment caused irreparable damage to the façade of stoicism that ostensibly legitimated the appearance of the justices at the speech; from then on, whether the justices made any overt expression or not, they effectively became part of the pageantry. Following this most recent State of the Union, for example, various articles pointed to Justice Ginsburg, who appeared to have fallen asleep during the speech. If the public were to witness Ginsburg in action at the Court, however, they would realize that she often sits in such a fashion during oral arguments and remains one of the most active questioners on the bench (at the age of 81, no less).
Ostensibly, their presence is intended to reinforce the idea of the Constitution as a living document, not necessarily in the interpretive sense but as one that citizens can see in action. Forced by protocol to sit in stoic silence so as not to convey any semblance of partisan preference, it should not be surprising that many justices have expressed their dissatisfaction with their attendance of the speech. Why then do the justices choose this occasion to present themselves to the American people if they can do nothing less than sit motionless, hoping a camera does not catch a single reaction? As I have said, some have argued justices should attend the speech so they can distinguish themselves from the partisan climate of Congress. While a strong public relations strategy in theory, it has failed in practice. The media has focused on the justices enough to subconsciously reflect the already prevalent assumption that the justices are partisan; whether true or not, that assumption seems to underlie the inordinate attention paid to the justices during the speech.
The Court is at a crossroads between a history of selective invisibility and a future in which it will be increasingly difficult to maintain that strategy. The attendance of the justices at the State of the Union is a relic of a time when such an event was truly one of the only ways that the public could see the justices. Now, however, their attendance is a source of intrigue and controversy. In this age of increasing demands for transparency, the sensible path forward is one in which the Court expands the ways the public can see it in action. It can continue to pick and choose between which forums are best suited for public appearances or it can move beyond largely empty gestures such as attending the State of the Union and move toward meaningful, modern changes which will bring the work of the Court closer to the people. Justice Breyer, a consistent defender of justices who attend the speech, has reasoned that the speech serves as a chance for the public to see all parts of the federal government directly. Whether the justices attend in order to model dignity and civility or so the public sees each branch of the federal government, the only realistic solution to those concerns is to allow citizens to see the Court at work, just as they can observe floor debates in Congress or the President’s State of the Union.
Conor Kelly is an Opinion Columnist for The Cavalier Daily. He can be reached at c.kelly@cavalierdaily.com.
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