Bench Memos

Supreme Court Justices and the State of the Union Address

Over the years, no matter who has been president, I have come to detest the State of the Union address, in part for its absurd everything-and-the-kitchen-sink policy prescriptions, in part for the endless episodes of staged applause.  I don’t know when or why the tradition developed of Supreme Court justices attending the speech, but it strikes me as a tradition worth abandoning. 

A few thoughts in connection with last night:

1.  In our system of separated powers, I think that it’s entirely proper and healthy for a president to engage in responsible criticism of a Supreme Court decision.  (And so did, among others, Abraham Lincoln.)  If there’s something seemingly impolite about offering that criticism in a State of the Union address when justices are present, I think that’s a good reason that justices should not attend.

2.  President Obama’s criticism of the Court’s recent Citizens United decision was demagogic mendacity.  (As Linda Greenhouse points out, Obama was also wrong in asserting that the decision “reversed a century of law.”)  That—not the mere fact of criticism—is what made it improper.

3.  Perhaps it would have been more politic if Justice Alito had managed to remain stone-faced during Obama’s demagoguery, but I find it encouraging and refreshing that, notwithstanding his years in D.C., he retains the capacity to be jarred by lies.  (It’s also impressive that Alito was still paying attention; Justice Ginsburg evidently fell asleep during the drone-a-thon.)

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