Justices Try to Avoid SOTU 'Pep Rally'

Alito's in Hawaii, Scalia probably won't go, Roberts is hesitant

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A few Supreme Court justices aren't excited about sitting stone-faced through the "pep rally" atmosphere of the State of the Union address. Instead of daydreaming about it during this year's speech, Justice Alito has already booked his ticket to Hawaii. Antonin Scalia and Chief Justice John Roberts have both indicated their reluctance to attend the President's address, especially after last year's "regrettable display of bad manners" when Obama publicly criticized the justices as they sat in front of him. This year, observers are wondering if only Justices appointed by Democratic presidents will be present at the proceedings, an undesirable scenario.

  • I Hope John Roberts Doesn't Go To Hawaii, Too, writes the Washington Post's Eva Rodriguez, who nevertheless notes that "it could not have been pleasant to sit Sphinx-like in the chamber as the president chastised the court and Democrats jumped from their seats in a raucous ovation." Still, if Roberts played the "bigger person" it would "send an unmistakable message that the best interests of the country must always trump personal grievances.In some ways, it's not fair to ask Roberts to be the bigger person. He, after all, did not assail the president or misrepresent one of his policies. But unlike the justices, the president has little choice but to show up to his own speech. That's why all eyes will be on Roberts."
  • A Running Tally: Looks Like the Dem Appointees Will Be There  At the New York Times, Adam Liptak observes that it's a "decent bet" that Justices Breyer, Ginsberg, Kagan and Sotomayer "will be present Tuesday night." As for Republican appointees? "Justice Alito is out; Justices Scalia and Thomas appear to be long shots; and Justice Kennedy, as usual, could go either way," Liptake figures. "Chief Justice Roberts, who is deeply concerned about the court’s authority and prestige, may be weighing the costs of attending an event he has found distasteful against the possibility of a televised tableau showing only justices appointed by Democratic presidents turning up to hear a Democratic president's address."
  • Scalia Probably Isn't Going and It's Not Really a Surprise, notes Outside the Beltway's James Joyner, citing Scalia's statement, quoted in The Hill: "[I] haven't gone to the State of the Union in at least 10 years, and I'm not starting tomorrow night either." Joyner writes: "Scalia is right not to lend the credence of the judiciary to what has long been a partisan pep rally. But inertia is not news."
  • They Don't Seem to Have a Problem Attending Other 'Pep Rallies,' notes Slate's Dahlia Lithwick, who writes that some of the same justices who complain about the "spectacle" of the SOTU, "have shown themselves all too willing to appear in other settings where ideological hectoring is not just part of the program but seemingly the entire objective." She explains:
Scalia and several of his colleagues routinely attend the Red Mass, which occurs every fall. And if the State of the Union is too embarrassingly political and partisan to endure, how is teaching a constitution class for the Tea Party Caucus the day before any less so? Isn't it preferable for a member of the Supreme Court to attend openly partisan events that are televised—and to do so en masse—than to attend those that happen in secret? If anything is likely to harm the prestige of the court, it's this bizarre project of selective invisibility on which some of the justices have set themselves.
  • It All Comes Down To Judicial Etiquette concludes The Atlantic's Garrett Eps, remarking on the "certain sloppiness of action has lately crept over the federal bench." On Justice Roberts attending this years' SOTU proceedings, he writes:
No one doubts that he has deep philosophical differences with the Obama Administration, as well he might. But he is also the head of the federal judicial branch, and he seems to takes his institutional responsibilities as seriously as his own views. As head of the institution, then, he might consider it his duty to be present even for some tedious or unpleasant public events. He might also consider asking the divas with whom he sits to come and sit in their front-row seats without throwing spitballs. Or he might decide that the risks to the institution were greater from attending than from staying away.
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