WASHINGTON – They have called it a “childish spectacle,” a “political pep rally” at which they feel “very awkward” and “very uncomfortable.” One of them fell asleep because she “wasn’t 100% sober.”
Among the issues that deeply divide the Supreme Court – and there are many – one of the most personal is whether to take their reserved front-row seats for the president’s annual State of the Union address.
A slim majority are expected to attend President Trump’s delayed address Tuesday night, led as usual by Chief Justice John Roberts, who has lamented the partisan nature of the event. That would be an improvement on last year, when only four of the nine justices showed up.
Presidents Barack Obama and George W. Bush had similar difficulties attracting justices for much of their tenures in office. President Bill Clinton’s 2000 address, coming a year after his Senate impeachment trial, was the last to strike out completely; the entire Supreme Court stayed away.
The justices’ objections have risen over the years as the event has become increasingly political. Members of the president’s political party can be heard “whooping and hollering,” in Associate Justice Clarence Thomas’s words, while the loyal opposition engages in “catcalls.”
Retired Associate Justice John Paul Stevens, now 98, never attended during his 35-year career. The late Associate Justice Antonin Scalia stopped going in 1997 after deciding it was a “childish spectacle” that did not deserve a row of justices to “give it dignity.”
The same night as Obama’s 2013 address, in fact, Scalia appeared before an audience at nearby George Washington University. “I didn’t set this up tonight just to upstage the president,” he quipped.
Associate Justice Samuel Alito stopped attending after becoming part of the story in 2010. He was seen on television shaking his head and mouthing the words “not true” when Obama criticized the court’s Citizens United v. FEC ruling, which upheld the right of corporations and unions to make unlimited, independent political expenditures.
“They have become very political events and very awkward for the justices,” Alito said later that year. “We have to sit there like the proverbial potted plant most of the time.”
But not all of the time. More than once, Associate Justice Ruth Bader Ginsburg has appeared to nod off during the speech, which can drag on for more than an hour.
She did so in 2013 and again in 2015, later explaining that the justices had dined together before the speech to the accompaniment of a fine California wine.
“I wasn’t 100% sober,” Ginsburg acknowledged.
The 85-year-old justice has a good excuse this year: She is recovering from surgery to remove two cancerous nodules from her left lung. She and Trump had a dust-up during the 2016 presidential campaign when she called him a “faker” and he replied that her “mind is shot.” He’s been kinder in the wake of her illness, saying “I hope she lives for a long time.”
Trump should benefit Tuesday from the attendance of his two nominees, Associate Justices Neil Gorsuch and Brett Kavanaugh, along with State of the Union stalwarts such as Associate Justices Stephen Breyer and Elena Kagan.
And then there is Roberts, who in November rebuked Trump for calling a federal district judge who ruled against him in an immigration case “an Obama judge.”
“To the extent the State of the Union has degenerated into a political pep rally,” he said in 2010, “I’m not sure why we’re there.”
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