The Court and the State of the Union

By tradition, some justices on the Supreme Court attend the State of the Union address.  Also by tradition, the justices do not express any sign of support of or opposition to the president’s agenda, leading one justice to conclude that the role the Court plays as that of a “potted plant.”

That tradition changed last year, when President Obama criticized the Court for its then-recent decision in Citizens United v. FEC. The president said the decision “reversed a century of law that I believe will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections.”  Justice Alito, who was in attendance, seemed to mouth the words “not true” (the shortest dissenting opinion in Supreme Court history).

This year, Justice Alito will not be in attendance for the State of the Union, although six other justices – including all four Democratic appointees – will be there.

As for what happened last year, Justices Alito, Scalia, and Chief Justice Roberts have all made comments critical of the State of the Union atmosphere and have questioned why the justices should attend.  I have no problem with President Obama’s criticism.  Being a Supreme Court justice is a pretty great job.  Your salary can never be diminished, you have life tenure, you have the freedom to determine which cases you want to hear, plus you get a summer break on par with most high schools.  Once confirmed to the Court, there is little short of impeachment that the other branches of government can do to hold judges accountable.  The Constitution might isolate judges from reprisal, but it does not isolate them criticism.

As a footnote, the National Center for State Courts developed a list of states in which at least some state high court judges attend their governor’s state of the state address.  Enjoy!

  • Arizona
  • Arkansas
  • Colorado
  • Connecticut
  • Delaware
  • Georgia
  • Idaho
  • Indiana
  • Iowa
  • Kansas
  • Michigan
  • Minnesota*
  • Mississippi
  • Missouri
  • New Hampshire
  • New Jersey
  • New Mexico
  • New York
  • North Dakota
  • Oregon
  • South Carolina
  • South Dakota
  • Vermont*
  • Virginia
  • Washington
  • West Virginia
  • Wyoming

*By tradition, the incoming or incumbent governor delivers only an inaugural address. This information refers to those inaugural addresses.

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