I'll admit that I also felt uncomfortable during this year's State of the Union address when members of Congress stood up and cheered in support of President Obama's criticism of the U.S. Supreme Court's decision in Citizens United v. Federal Election Commission, the case in which the court dismantled congressional efforts to curb corporate contributions in federal election campaigns. I just don't like it when people are embarrassed. And it was clear that many of the justices—those in the majority certainly—were embarrassed.
But the fact that President Obama's criticism of the court and the embarrassment of some of the justices makes us uncomfortable is no reason to applaud Justice Roberts' remarks last week at the University of Alabama, in which he characterized the scene at the State of the Union as "very troubling," and suggested that it is pointless for justices to attend the annual presidential address.
It doesn't take a rocket scientist to figure out that Roberts' public questioning of the usefulness of the court's attendance at the State of the Union was an attempt to lay the foundation for next year's inevitable Supreme Court no-shows. But the members of the court would do well to man up and make their yearly sojourn to the well of the Capitol. The State of the Union is not just any presidential address. In Article 2, Section 3 of the Constitution, it requires that the president come before Congress to provide "information on the State of the Union."
The presence of the court is not constitutionally compelled, but it serves as an important symbolic demonstration of the unity of our government. For a court that completes much of its work outside the view of the public, it is also one of the few occasions when ordinary members of the public get to see the members of our country's highest court.
The Supreme Court has long been skittish about engaging with the public. It has consistently refused to allow television cameras for oral arguments in even the most important cases. Justice David Souter once famously remarked that cameras would enter the Supreme Court "over [his] dead body."
Long before this year, attendance by members of the Supreme Court at the State of the Union had become spotty. There were a few years during the Clinton years when only two or three justices attended. And Supreme Court justices speak regularly at grade schools, colleges, law schools and at international conferences. Maybe that's the problem. It isn't so much that the justices refuse to engage with the public, but it's more that they only want to engage with the public when they can do so on their own terms.
Among Justice Roberts' most disturbing comments last week was his criticism of the State of the Union as nothing more than "a pep rally." It's true that the endless clapping and guffawing at the State of the Union is not the most decorous, but who is Justice Roberts to dictate how Congress should behave? How would Roberts like to hear members of Congress characterize the behavior of the court's justices during oral arguments—when justices sometimes appear to be more interested in hearing themselves rather than the lawyers appearing before them, when some justices shamelessly provide lines of argument in support of the positions they agree with, and when justices rudely talk over one another and the lawyers (or in the case of one justice, refuse to talk at all). It's not up to Congress to decide the proper conduct or decorum at Supreme Court oral arguments, any more than Roberts should take it upon himself to criticize Congress' behavior during the State of the Union.
And lest Roberts leave the public with the impression that the justices are sensitive innocents, it may be worth reviewing the transcripts of oral arguments in some of the court's cases, like last year's Voting Rights Act case, in which some members of the Supreme Court can sound openly contemptuous of the motivations and actions of the political branches . And that contempt is not limited to the Congress. Those of us who recall Justice Antonin Scalia's sarcastic suggestion that Americans who are still distressed about the court's widely derided decision in Bush v. Gore—giving the 2000 presidential election to George W. Bush—should just "get over it," know that the court can dish it out as well as take it. And Justice Clarence Thomas has so little regard for the lawyers who spend weeks preparing to appear before the Supreme Court that he has consistently refused to speak during oral arguments over the course of his nearly 20 years on the bench.
But nor are the justices royalty or hothouse flowers. They are members of a co-equal branch of government, whose decisions have wide-ranging influence over the way average people live their lives. Decisions about abortion, birth control, the death penalty, gun rights, voting rights and executive power during war have shaped the course of history in this country and the lives of millions of people. In exercising this enormous power, the founders of our republic determined that the court should be insulated from fear of public rebuke by providing in Article III of the Constitution for lifetime tenure for federal judges and the guarantee that their salary cannot be diminished while in office. But independence and insulation are two different things.
It would be a mistake for the Supreme Court to break the tradition of attending the State of the Union. The presence of the court at next year's State of the Union—especially after this recent tension with President Obama and Congress—will serve as a powerful reminder that despite their many and deep political differences, the three branches of our government remain united by a constitutional structure that cannot be undone by any court decision, presidential rebuke or zealous congressional display. Let's see if the justices on our nation's highest court can put aside ego and hurt feelings and take up the challenge to show up one evening each year in respect of our Constitution.