New York Times

January 25, 2011

Six Justices to Attend State of the Union

By ADAM LIPTAK
WASHINGTON — Justice Samuel A. Alito Jr., who mouthed a dissent at last year’s State of the Union address, will not attend this year. But six justices will be present for this year’s address, according to a court spokeswoman. She would not say which ones.

There is little question that the four members of the court’s liberal wing — Justices Ruth Bader Ginsburg, Stephen B. Breyer, Sonia Sotomayor and Elena Kagan — will attend. Justice Anthony M. Kennedy, the court’s swing justice, attended there last year, and he is likely to be on hand again Tuesday night.

And Chief Justice John G. Roberts Jr. has apparently concluded that his distaste for last year’s address, which

he called a “political pep rally,” was not reason enough to stay away. He may have concluded that the court’s reputation as an avowedly apolitical institution would be harmed should only the court’s more liberal justices attend.

Last year’s address included a remarkable exchange, with President Obama criticizing a six-day-old decision, Citizens United, to the faces of the six justices present. He said the decision had “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 responded by mouthing the words “not true.”

In the months that followed, several justices spoke out about their reactions and plans for attendance, and there has been speculation ever since about which of them would go this year and what it would mean.

President George W. Bush’s two appointees, Chief Justice Roberts and Justice Alito, have attended in recent years. But neither enjoyed his experience last January.

“I’m not sure why we are there,” Chief Justice Roberts said of the address in March in remarks at a law school.

“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,” he added.

Justice Alito made similar observations in remarks at the Manhattan Institute in October. “I doubt that I will be there in January,” he said. It was very awkward, he explained, “to sit there like the proverbial potted plant.”

True to his word, Justice Alito has left town. He is scheduled to give a talk in Hawaii on Wednesday as part of a law school’s “jurist in residence” program. His topic: “Top Things You May Not Know About the U.S. Supreme Court.”

Justice Antonin Scalia, who did not attend last year, told the Federalist Society in November that the address had become a “juvenile spectacle.”

But he did speak to the Congressional Tea Party Caucus on Monday at the invitation of Representative Michele Bachmann, Republican of Minnesota. His subject was the separation of powers.

In remarks at a Florida law school in February, Justice Clarence Thomas, who also did not go last year, explained why he does not attend.

“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “there’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”

The attendees last year included three from each side of the 5-to-4 decision in the Citizens United case: Chief Justice Roberts and Justices Alito and Kennedy, who were in the majority, and Justices Breyer, Ginsburg and Sotomayor, who were in dissent. Five of those six justices are likely to attend on Tuesday night, with Justice Kagan, who joined the court last year, replacing Justice Alito.