Justice Alito Won’t Attend Next State Of The Union

Justice Alito said recently he won't be attending the next State of the Union address. Sounds like a good idea to me.

After becoming the focus of a small media firestorm in January for visibly disagreeing with President Obama’s comments about the Citizens United case, Supreme Court Justice Samuel Alito said in a recent interview that he doesn’t intend to appear at future State of the Union addresses:

When Supreme Court justices enter the House of Representatives in their black robes for the president’s next State of the Union address, Samuel Alito does not plan to be among them.

The justice said the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.”

(…)

Alito, answering questions following a speech Wednesday at the conservative Manhattan Institute in New York, also said, “Presidents will fake you out.” The institute provided an online video link to Alito’s talk and question-and-answer session.

The president will begin a sentence with an invocation of the country’s greatness, Alito said. If justices don’t jump up and applaud, “you look very unpatriotic,” he said.

But, Alito continued, then the president may finish the thought by adding “because we’re conducting a surge in Iraq or because we’re enacting health care reform.” Justices aren’t supposed to react to statements about policy or politics.

The better course, Alito said, is to follow the example of more experienced justices like Antonin Scalia, Clarence Thomas and the recently retired John Paul Stevens. None has attended in several years.

Alito isn’t the first sitting Justice to suggest that the Supreme Court’s presence at what is, at it’s core, a political speech perhaps isn’t appropriate, Chief Justice Roberts said much the same thing back in March:

U.S. Supreme Court Chief Justice John Roberts said Tuesday the scene at President Obama’s State of the Union address was “very troubling” and the annual speech has “degenerated to a political pep rally.”

Obama chided the court, with the justices seated before him in their black robes, for its decision on a campaign finance case.

Responding to a University of Alabama law student’s question, Roberts said anyone was free to criticize the court, and some have an obligation to do so because of their positions.

“So I have no problems with that,” he said. “On the other hand, there is the issue of the setting, the circumstances and the decorum.

“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 the requirements of protocol – has to sit there expressionless, I think is very troubling.”

Roberts and Alito, both have a point, of course.

While the State of the Union has the trappings of a function of state akin to the Queen at the opening of Parliament it is, in reality, nothing more than a political event. There’s nothing in the Constitution that requires the President to actually address Congress, all that Article II, Section III says is this:

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient

For 114 years, from President Jefferson through President Taft, that Constitutional duty was accomplished by the sending of a written address to both Houses of Congress. It was Woodrow Wilson who made the idea of a Presidential address to a Joint Session of Congress a regular part of American political life. Not surprisingly that move was accompanied by an expansion of the power and prestige of the Presidency in American political life that continues to this day. The State of the Union isn’t a vital national event, it’s a political speech designed to enhance the agenda, and power, of the President and his party in Congress. As a co-equal, and ostensibly non-political, branch of government, there’s no reason for the Supreme Court Justices to attend a political speech that protocol demands they not respond to in any way.

In fact, I’d like to see more people follow Justice Alito’s example. Skip the State of the Union, no matter who’s making the speech, it only encourages them if you watch.

FILED UNDER: Barack Obama, Law and the Courts, Politicians, US Politics, ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. Brummagem Joe says:

    I”m sure he’ll be widely missed. As usual Doug you’re somewhat selective in your attitude to the constitution which calls for the president to periodically report on the state of our union. By custom and practice over the last 100 years this has taken the form of a speech delivered to both houses and other notables. However, your desire to undermine the precedents that largely define our polity are not inconsistent with your general philosophy. And btw the State opening of parliament could hardly be described as “unpolitical” since the Queen’s speech drafted by the PM is a recitation of his intended legislative program for the session ahead.

  2. Just because something has been done a certain way for 100 years doesn’t mean it always has to be that way. The SOTU is a pointless exercise in political theater.

    And, Joe, are you sure you’re not a conservative. You seem to have quite the thing for doing things the “traditional” way

  3. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 11:19

    “And, Joe, are you sure you’re not a conservative. You seem to have quite the thing for doing things the “traditional” way”

    Actually I’m a deeply conservative person of the somewhat Burkean variety. This does not however preclude a willingness to recognize the realities the modern world or indicate some irrational hope that the clock can turned back. Societies change, need to change, and it’s best if the change is done at a gentle pace. The state of the union is a bit national theater like the inauguration or laying wreaths at the tomb of the unknown warrior. It’s to be treated with some deference whatever our politics.

  4. @Joe: regardless of what may say about the way we have done the SOTU (especially in the TV era) has absolutely nothing to do with the Constitution.

    I think more than being a political speech (which it is) is has the air of a Speech from the Throne, which is not really what we should want in a democracy.

  5. Jeff Little says:

    Steven L. Taylor what country are you talking about?? The US is not nore ever has been a democracy. We are a Republic.

  6. Brummagem Joe says:

    Steven L. Taylor says:
    Sunday, October 17, 2010 at 11:54

    “has absolutely nothing to do with the Constitution.”

    Except inasmuch as the constitution specifically calls for the president to make a periodic report on the state of our union. Why in our modern age shouldn’t that requirement be satisfied by an annual speech? And of course that’s why the custom has arisen. I don’t see how this has “nothing to do with the constitution.” On the other hand the constitution clearly doesn’t call for a bunch of things the president traditionally does from laying wreaths to pardoning turkeys. I don’t see why a speech is a problem. So how would you like the president to make his constitutionally required report? Email?

  7. Joe,

    America survived just fine for more than 100 years with the tradition of the President sending a written message to Congress. Other than for the inappropriate reasons Steven raises, which involve enhancing the power, aura, and authority of the Presidency far beyond the limits of Article II, there is no good reason to turn the minor duty established in Article II, Section III into an annual spectacle that makes the President seem like a King addressing his subjects.

  8. Brummagem Joe says:

    “an annual spectacle that makes the President seem like a King addressing his subjects.”

    And it’s survived just fine for another 100 years in the form of a speech which in an age of mass communication is simply the most efficient method of speaking to the most of the people. As to minor duty you are again highly selective in deciding what is and what isn’t minor in the constitution. I’d also add that the President as head of state is essentially fulfilling the functions of a monarch, an elected one. It’s funny how SoU’s have suddenly become an issue when we have a Democratic president. I remember no such calls when Bush or Reagan were delivering them. But then I am, as you say, a conservative while much of your philosophy revolves around its complete antithesis of conservative beliefs.

  9. Joe,

    Either you haven’t noticed that this spectacle coincided with an extra-Constitutional increase in the power of the Presidency, or you don’t care.

  10. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 12:20
    ‘Other than for the inappropriate reasons Steven raises, ”

    Steven suggests it has nothing to do with the constitution which even you don’t agree with viz.

    “there is no good reason to turn the minor duty established in Article II, Section III”

  11. @Jeff:

    First, I would note that your assertion is a non sequitur in this context. Even if you want to say we are a republic and not a democracy, a speech from the throne is problematic given that the most fundamental definition of a republic is a government without a monarch.

    Second: out of serious curiosity, what does that formulation (a republic, not a democracy) mean to you? The bottom line is that the terms are largely synonymous in a modern context (we have, to be more accurate, a representative democracy).

    Third:

    A Republic, not a Democracy? (Part I)
    A Republic, Not a Democracy? (Part II)
    A Republic, not a Democracy? (Postscript on Federalist #10)

  12. @Joe:

    Except inasmuch as the constitution specifically calls for the president to make a periodic report on the state of our union. Why in our modern age shouldn’t that requirement be satisfied by an annual speech?

    I am not saying the president should fail his requirement to make reports to Congress.

    However, the irony of your statement is that “in our modern age” the need for a massive speech is actually lessened, not augmented. To wit: when the Constitution was written in 1787 there was good cause for the president to make reports to Congress from time to time as it was clearly the case that member of Congress probably didn’t know what all was going on with the government, given the lack of modern communication and mass media. Indeed, a big speech (or a report read to a joint session) made sense given the lack of mass communication technology.

    Now, in the modern age in which we live, there isn’t a member of Congress who doesn’t know, in advance, pretty much exactly what the President is going say in the speech. It is utterly superfluous.

  13. grampagravy says:

    The only sad, sad joke bigger than SOTU is SCOTUS.

  14. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 12:40
    “Either you haven’t noticed that this spectacle coincided with an extra-Constitutional increase in the power of the Presidency, or you don’t care.”

    Well you see Doug this is one of those realities that was inseparable from our rise to superpowerdom. The process was inevitable and is irreversible. It’s basically irrational to believe otherwise. This is not to say I don’t think there should be some constraints on presidential power which was massively expanded during the Bush presidency. And all this obssessing over the national ritual of the state of the union seems both trite and disrespectful of our traditions.

  15. steve says:

    If Alito’s not going, I am not going. No one should go, just TIVO it.

    Steve

  16. Joe,

    Considering that I haven’t actually watched it in more than five years, I wouldn’t say I’m obsessed with the SOTU. I just happen to think it’s a pointless practice that could be ended with absolutely no damage to the Republic.

    And, if you think that the power of the Presidency began it’s expansion beyond the limits of Article II during the Bush years, you’re ignoring a lot of history.

  17. JKB says:

    Well, we’ll know we’ve arrived when the SOTU is delivered by Twitter: SOTU: A ok. Check whitehouse.gov for upcoming agenda.

    Interesting that the SOTU became spectacle just when the communications methods (newspapers) rewarded such. I wonder if the degradation of the civility tracks the introduction of cameras, until finally it is live theater. As times are changing, MSM is no longer the controlling medium, I wonder if it’ll change to be more reflective of the comms of the time, hopefully, not all the way to twitter. These days, there are options not to endure the speech since it is no longer on every channel or station. Liveblogging is good where some endure the pain so the many don’t have to. See socialism has some uses.

    Of course, someday (always the optimist) we could have a president who treats the SOTU with respect and gives a simple summary of the the state of the union, a listing of his agenda for the upcoming year but leaves the bulk of the partisan politics for outside the event.

  18. Brummagem Joe says:

    Steven L. Taylor says:
    Sunday, October 17, 2010 at 12:52
    “I am not saying the president should fail his requirement to make reports to Congress. ”

    Well you said it had nothing to do with the constitution when it clearly has. I, and I’m sure most people, have no problem with it regarding it as one of those national rituals that collectively help cement our polity. Of course it’s to be expected that those anxious to weaken the bonds of polity would think otherwise.

  19. JKB says:

    Sorry, change “live theater” to “reality TV”

  20. @JKB: this is not doubt that technology is at issue here.

  21. @Joe:

    I see the confusion. I left a word out of this sentence: the second “it”–I have also edited it slightly for clarity. My apologies for being unclear.

    “@Joe: regardless of what may be sayid about the way we have done the SOTU (especially in the TV era) it has absolutely nothing to do with the Constitution.”

    Now, it is still hardly the best or most clear sentence I have ever written, but the “it” to which I was referring was “the way we have done the SOTU”–i.e., the form it has taken in the modern era–which is not a requirement of the constitution.

  22. I, and I’m sure most people, have no problem with it regarding it as one of those national rituals that collectively help cement our polity

    I am going to have to call foul on that one. A rather large number of people totally ignore the SOTU. Now, when I was a kid it was pretty much the only thing on TV, but that hasn’t the case for decades.

  23. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 13:04
    “And, if you think that the power of the Presidency began it’s expansion beyond the limits of Article II during the Bush years, you’re ignoring a lot of history.”

    I never said anything remotely approaching that as you must know if you paid attention to what I said. Of course you could be deliberately distorting what I said. I said the growth in the power of the presidency was inseparable from our rise to superpowerdom which long preceded the presidency of George Bush. Indeed there are many who think our decline from superpowerdom may well have begun during the presidency of Bush. It’s perhaps not entirely coincidental that the first president to make a SoU speech to congress was also the one who presided over our decisive shift to the top of the global ladder.

  24. ponce says:

    Alito is a thin-skinned diva?

    Color me surprised.

  25. Brummagem Joe says:

    Steven L. Taylor says:
    Sunday, October 17, 2010 at 13:13
    “I am going to have to call foul on that one.”

    Just because they don’t watch it this is your evidence that a majority of the country wants it to end? I’m sure most people don’t watch lighting the national christmas tree (I certainly don’t) but it hardly means I’m desirous of it ending. Is this the best you guys can do.

  26. Just because they don’t watch it this is your evidence that a majority of the country wants it to end?

    That’s not what you said. You said “one of those national rituals that collectively help cement our polity”–and I find that to be a statement utterly devoid of evidence to support it.

  27. @Joe:

    Let’s put it this way: you like the SOTU and I have increasingly moved to an anti-SOTU position and, hence, I don’t like it.

    You win because it isn’t going away. You don’t have to make grandiose claims about is national significance.

  28. Joe,

    If President Obama announced tomorrow that he would mailing the SOTU in rather than delivering a speech, I doubt most Americans would miss it.

  29. Brummagem Joe says:

    “which is not a requirement of the constitution.”

    Steven:The constitution doesn’t define the form in which the report shall be made, it just says it shall be made. A speech doens’t seem innappopriate. What would you prefer an illuminated address in Latin?

  30. Joe,

    I won’t speak for Steven but I’d be fine if the President just posted the text of the address on the White House web site. Heck, he could even make one of those YouTube videos of it if he wanted. Just end the needless spectacle

  31. Brummagem Joe says:

    Steven L. Taylor says:
    Sunday, October 17, 2010 at 13:23

    “You win because it isn’t going away. You don’t have to make grandiose claims about is national significance.”

    I’m not making any grandiose claims (why do you and Doug keep distorting what I say). I just said it’s bit of national theater which performs the same function as many other national rituals of greater and lesser significance. Perhaps we should do away with most of those as well since I’m sure far fewer people watch the laying of the wreath on the tomb of the unknown warrior than do the SoU, and audience size seems to be your criteria for national significance.

  32. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 13:26
    Joe,

    “Just end the needless spectacle”

    Doug national rituals are very important in both defining and cementing societies. There are a host of books on this subject. You should read one.

    And ditto Steven who apparently thinks the importance of national rituals is dependant on how many people tune in.

  33. “National rituals” are only important if you think there is some inherent value in nationalism.

    Given the bloody history of nationalism, I tend to discount it’s importance

  34. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 13:39
    “National rituals” are only important if you think there is some inherent value in nationalism.

    So our national rituals like quoting the pledge of allegiance, the inauguration, 4th of July parades and fireworks, the State of the Union Address, Thanksgiving day parades, et al, are all evidence of our attachment to bloody nationalism?

    To Steven’s point that viewing numbers are what matters I was making a mental list of bit’s of national theater we could dispense with. Does the constitution require the inauguration be a highly public affair on capitol hill? is the president absolutely required to make a speech? is a parade insisted upon? Since the audience for these events is probably not dissimilar to that for the SoU shouldn’t we eliminate one and all?

  35. Most of what you list are social rituals, not government functions intended to clothe the Presidency and the State in a aura of power and authority that it really isn’t entitled to.

    And, as for the Pledge, I’ve never believed it to be very American to pledge allegiance to a piece of cloth.

  36. And to answer your question, yea I wouldn’t mind if much of the pomp and circumstance of Inauguration Day were scaled back as well.

    It’ll never happen, of course, but that doesn’t mean that I have to pretend that it, and the SOTU, are anything important.

  37. Brummagem Joe says:

    Doug Mataconis says:
    Sunday, October 17, 2010 at 14:27
    Most of what you list are social rituals,It’ll never happen, of course, but that doesn’t mean that I have to pretend that it, and the SOTU, are anything important.”

    The inauguration, reciting the pledge, the SOU, 4th celebrations, Thanksgiving celebrations, are NOT national rituals? Are you serious? If you don’t think these are national rituals then you don’t know what a national ritual is. A national ritual does not exclude a social element. Rituals don’t get more national than Bastille Day but it’s also a massive occasion for social celebration. And the fact you consider ritual unimportant in our national life is yet more evidence of inanity I fear. (Note: inane def = lacking in imagination NOT crazy!!)

  38. c.red says:

    Ok, for full disclosure, I’m makling my comments after football games which means i’ve been drinking heavily. I do believe in the doctrine of truth in alcohol.

    That being said, Alito is an ass. He can’t attend the single functon that he may or may not be required to attend one night of the year because he might disagree with it? So what if he might have looked like a dumbass last year because of his comments. This year he looks like a total ass and a partisan fool to boot.

    i’m not abig fan of the State of the union Speech and the whole partisan applause thing and what the hell is up with the opposition rebuttal? But anyway it is the official addres the President to the country and everyone should so some respect.

  39. c.red says:

    …should show some respect.

    I mentioned i have been drinking heavily right?

  40. Brummagem Joe says:

    “But anyway it is the official addres the President to the country and everyone should so some respect.”

    Basically my position. Doug complains about “the spectacle,” but the spectacle is what it’s all about. Alito really is a total ass. He makes a spectacle of himself by that silly intervention instead of sitting there with a neutral expression on his face as we all do at similar occasions and then compounds it by saying he’s taking his ball home. For a supreme court judge he shows lamentable judgement.

  41. Alito isn’t the only Supreme Court Justice who believes it is inappropriate for members of the Court to be present during what is clearly nothing more than a partisan political speech.

    John Paul Stevens, hardly a right-winger, didn’t attend the SOTU for decades.

  42. Rick Almeida says:

    “He can’t attend the single functon that he may or may not be required to attend one night of the year because he might disagree with it?”

    I am aware of no authority whatsoever that suggests Supreme Court Justices must attend the SOTU, which the President is required to deliver to Congress.

    While I might have little else in common with Justices Alito and Scalia, I wholehearedly support them in their disdain of nighttime workplace activities.

  43. Rick,

    I know you’re late to this discussion and I largely agree with you, but it’s worth noting that the Constitution does not require the President to deliver a SOTU to a Joint Session of Congress. That is a modern, Wilsonian, invention

  44. Brummagem Joe says:

    “but it’s worth noting that the Constitution does not require the President to deliver a SOTU to a Joint Session of Congress. That is a modern, Wilsonian, invention”

    It’s also worth noting of course that the constitutional article requiring a state of the nation report to congress DOESN’T exclude it being delivered in the form of a speech either.

    ” John Paul Stevens, hardly a right-winger, didn’t attend the SOTU for decades.”

    Nor was he in the habit of shouting out NO during Ronald Reagan’s SOU’s either. The only reason Alito’s proposed absence is remotely newsworthy is because of his gauche behavior at this years event.