Bench Memos

Knowing When to Clap

The Washington Post’s Dana Milbank has an amusing story observing when the four Supreme Court justices who attended the State of the Union — Breyer, Thomas, Roberts and Alito — chose to clap or stand during Bush’s speech. These were among Samuel Alito’s first “important rulings” as a newly minted Associate Justice of the Supreme Court.

At times, Alito followed the lead of the other three justices who sat with him in the front row. When Bush said “We love our freedom, and we will fight to keep it,” Thomas looked at Roberts, who looked at Breyer, who gave an approving shrug; all four gentlemen stood and gave unanimous applause.

At other times, Alito showed independence from his senior colleagues. When Bush delivered the stock line “The state of our union is strong,” Alito dissented while the other three robed justices in the front row applauded. When Bush declared that “liberty is the right and hope of all humanity,” Alito was the only member of the judicial quartet to provide his concurring applause.

It seemed from their frequent conferences that the justices had agreed on some ground rules: Any mention of Iraq or hot domestic disputes were off limits; broad appeals to patriotism were deemed applause-worthy. But there were disputes. When Bush said “We will never surrender to evil,” the justices conferred briefly. Breyer shook his head, but Roberts overruled him, and Breyer reluctantly stood with his three colleagues.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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