The Justices Stand and Applaud - or Don't

AT the State of the Union yesterday, the Justices (the six who were there) stood and clapped when the President expressed appreciation for the military. Otherwise, they sat fand did not clap. I can understand that when the line is, e.g., about passage of the Violence Against Women Act, or gun violence, or raising the minimum wage. But why passivity when the line is about enabling people who work hard to get ahead or opening the door of opportunity to children across America? 

Comments

[John Steele]

I have similar reactions. If they applaud a passage that sounds good on its face but is understood to be supporting a proposed law that one party wants more than the other party does, what does that mean? What if the justices appointed by one party appear to applaud more than the others? And so on.

Those sorts of reactions are exactly why I'd advise them not to attend the SOTU -- especially after they were called out by the President for criticism at a prior address. It's supposed to be a report from the POTUS to the Congress. Let the other two branches do their thing.

[Stephen Gillers]

"No SCOTUS at the SOTU," Will it work on a bumper sticker?

[Andrew Perlman]

It is also interesting to note which of the three Justices did not bother to show up at all: Scalia, Thomas, and Alito. (See here: http://www.abajournal.com/news/article/scalia_calls_state_of_the_union_a_childish_spectacle/)

Given the ideological leanings of those three, one has to wonder whether their decision to stay away is because of the "childish spectacle" of the SOTU, as Scalia contends, or whether it is intended to send a more substantive message. Put another way, a Justice's decision to applaud (or not applaud) particular lines in the speech sends a message, but so does a Justice's decision not to show up in the first place.

So I tend to agree with John that the best solution is for all of the Justices to stay away from the event regardless of who the President is. That seems more appropriate to me than having only a portion of the Justices show up, particularly when the absentees are so clearly aligned with the opposing party.

[Richard Painter]

The justices should stand and clap when the President enters and when he is finished. Perhaps they should clap when he thanks the military or other persons who have made sacrifices for our country. Otherwise, they should sit respectfully and listen. I don't think it helps them perform their role as justices to clap during the speech, to show disapproval during the speech, or anything of the kind. Even very general statements by the President are linked to policy proposals that could become laws (otherwise he is just blowing hot air). And the Court will have to review and interpret those laws.

I don't think, for example, that anyone would disagree with the general statement that quality health care for all Americans is important, but we disagree about how to accomplish it and there was also disagreement on the Court over whether the President's way was constitutional. The job of the Justices is to review and interpret legislation, not to be cheerleaders for the politicians who support or oppose it. And that goes for any Justice who chooses to skip the State of the Union but nonetheless finds time to attend Tea Party caucus events instead. Politicized justices undermine the reputation of the Court.

[George Conk]

The Justices are high officials of the government and the SOTU is a constitutional duty of the President (though it was long written rather than oral). So I think the justices should all attend this annual ritual at which the President states (his/her) assessment and objectives, stand at the beginning, applaud at the end, and take their lumps on policy without whimpering or grimacing.

[John Steele]

George, thanks for commenting. My sense was that it's a constitutional duty that runs from one branch (executive) to a second branch (legislature) but doesn't involve the third branch (judiciary). So why not excuse the SCOTUS from the SOTU?

(I like Steve Gillers's suggestion for the bumper sticker: NOSCOTUS@SOTU!)

[George Conk]

The SOTU's original report character has been transformed. It is now the President's annual report to the nation. As the leaders of the unelected Third Branch of the government the Justices should attend to hear the elected tribune of the people report to the other elected members of the government. If there is an element of the subjugation ritual - good. Humility is a virtue too little cultivated.