Jan. 21 (Bloomberg) -- John Roberts won’t have to say a word to make a statement in the next few days.
The chief justice, like his U.S. Supreme Court colleagues, must decide whether to attend President Barack Obama’s Jan. 25 State of the Union address. Last year, Roberts sat passively as Obama drew a standing ovation from congressional Democrats by criticizing the court’s just-issued campaign finance ruling.
Since then, Roberts has questioned whether the justices should continue to attend the annual speech, which he likened in March to a “political pep rally.” Samuel Alito, who famously mouthed “not true” as Obama spoke, plans to skip the event and instead will be in Hawaii for a speech he will give at a law school the next day.
“Any who attended last year but don’t this year will be sending the message that they were offended by Obama’s attack,” said Lucas A. Powe Jr., a Supreme Court historian who teaches at the University of Texas School of Law.
Their absence would potentially shine a light on the ideological and party-based divide that often runs through the court. The court’s contingent at the speech might consist largely -- perhaps even entirely -- of Democratic appointees.
Of the five Republican-nominated justices, three attended last year: Roberts, Alito and Anthony Kennedy, who hasn’t said whether he will go this year. The other two, Antonin Scalia and Clarence Thomas, skipped the event and have suggested they will do so again next week. Those five formed the majority in the campaign finance ruling, which freed corporations to spend money on political ads.
Three of the court’s four Democratic appointees -- Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor -- attended last year. The fourth, Elena Kagan, was nominated by Obama in May.
Should only the Democratic appointees go, “that would be an explicit disaster, as everybody ought to realize well ahead of time,” said David Garrow, a historian at Cambridge University in the U.K. who writes about the court. “If things devolve to where it looks like an implicit indication of support or non-support for whoever the current president may be, that’s a big negative for the court.”
The court’s spokeswoman, Kathy Arberg, confirmed today that Alito won’t attend. She said she didn’t know the other justices’ plans.
A decision not to attend would mark a change in Roberts’s approach to his job. In his five years as chief justice, Roberts has taken on the mantle of the judiciary’s public face, distinguishing himself from his more insular predecessor and former boss, William Rehnquist. He has attended every State of the Union since taking his oath in 2005.
Roberts’s absence might also mark a subtle shift in his relationship with Obama. Last year’s State of the Union aside, Roberts’s public dealings with the president have been unfailingly cordial. When Obama attended Kagan’s ceremonial investiture at the court last year, Roberts turned to the president and told him, “You are always welcome here.”
Even when Roberts voiced misgivings about the State of the Union in speaking to law students at the University of Alabama in March, he aimed his remarks more at the cheering lawmakers in the audience than at the president who drew their applause.
“The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling,” Roberts said. “And it does cause you to think whether or not it makes sense for us to be there.”
Alito said in October that the event has become awkward for the justices, forcing them to sit “like the proverbial potted plant,” according to an Associated Press account of a speech he gave at the Manhattan Institute in New York.
Justices have voiced similar misgivings for decades, said Mark Tushnet, a constitutional law professor at Harvard Law School. The recently retired Justice John Paul Stevens traditionally skipped the speech regardless who the president was. Scalia follows a similar practice.
“Historically, there’s been a sort of persistent, low-level sense that there’s something odd about the justices attending the State of the Union address,” Tushnet said.
Some commentators have suggested the court might make a collective decision about attending this year. Roberts discounted that possibility in October, saying during a forum at Canisius College in Buffalo, New York, that the decision is “up to each individual member of the court.”
One possibility is that the shooting rampage in Tucson, Arizona, will make the justices more likely to attend. At a Jan. 12 memorial service, Obama appealed to the nation for unity, and some lawmakers say they will break with tradition by sitting alongside members of the opposing party during next week’s speech.
“The justices may feel compelled to be nice,” Powe said.
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