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Should Supreme Court justices attend the State of the Union address? No thanks, says Alito, if he has to sit there "like the proverbial potted plant."

The justices of the U.S. Supreme Court, 2010. (Reuters/Larry Downing)

Samuel Alito, left, and Sonia Sotomayor, center, at President Obama's State of the Union Address, 2010. (AP/Pablo Martinez Monsivais)

The Supreme Court is back in session, but don't look for all the justices -- typically lined up in the front row -- at the next State of the Union address.

In recent weeks, the usually discreet justices have been pretty vocal on the topic of whether they should attend the annual speech. Justice Samuel Alito, for one, will likely skip it. "I doubt that I will be there in January," he said after a speech at the Manhattan Institute two weeks ago. The presidential address to Congress, he said, has become too political and "very awkward" for members of the court who are supposed to appear nonpartisan: "We have to sit there like the proverbial potted plant...and that's sometimes very hard." (Alito, you recall, created a stir last January when shook his head and appeared to mouth the words "not true" in response to President Obama's remarks criticizing the court's ruling on campaign finance.)

It's not like they're forced to show up. "The justices are invited to the State of the Union by the House sergeant at arms, and each justice decides individually whether he or she will attend," said court spokeswoman Kathy Arberg. As far as anyone can tell, justices started going in 1913, and the number has varied over the years: In 1937, none came when they were tipped in advance about Franklin Roosevelt's remarks criticizing the court, reported NPR legal correspondent Nina Totenberg. FDR wasn't the only president with a bone to pick -- Theodore Roosevelt, Warren Harding and Ronald Reagan also tweaked the justices in the annual address. But for the past few decades, most attend because it's one of the few official events where all three branches of government are represented.

That may be changing. Chief Justice John Roberts (who called the SOTU a "partisan pep rally" earlier this year) told an audience in Buffalo last week, "Some of my colleagues made the decision that they don't want to go, period, and I think that's something that's up to each individual member of the court." Justice Stephen Breyer told ABC in September that he'll attend "even if I'm the only one" because the president, the Cabinet, Congress and the joint chiefs are there. "I'd like some of the judges to be there, too," Breyer said. "Because the judges have a role in this government."

SCOTUS blog founder Tom Goldstein sides with Alito on this one. "I think it's totally unfair for the president to call them out, when they can't respond there or anywhere else," he told us. With all the cameras and the fact that no one really knows when to sit, stand or cheer, Goldstein gives the justices a pass: "There should be a forum for showing the three branches of government together, but this one doesn't seem to work."

By The Reliable Source  | October 25, 2010; 1:06 AM ET
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Alito isn't as smart as a potted plant. And Thomas is a lying potted weed, only with an arrogant potted wife.

Posted by: COLEBRACKETT | October 25, 2010 10:45 AM | Report abuse

The Supreme Court is intended to check the power of both the President and Congress not to do their bidding. There is little logic in the Supreme Court attending a State of the Union address to get a lecture from the President on how they should serve his interest.

Posted by: dnjake | October 25, 2010 11:08 AM | Report abuse

So, as to Alito and the article, Supreme Justices "who are supposed to be non-partisan!" This court for years, leaning to the right, has been anyting resembling "non-partisan!" They have been legislating from the bench for years. The Republicans also make that quite an issue when confirming judges but being hypocritical as they have been, they always support judges that "legislate." Just like the Republicans always promise to cut the debt, get the uninformed to vote for them, and then blow the debt through the roof!

Posted by: ginger470132 | October 25, 2010 11:23 AM | Report abuse

Has there been anymore shame than their last ruling to allow undisclosed money pouring into our elections which include blind corporations, foreign interests and countries into our elections? Congress needs to get blind donations out of our elections or we will become a third world country.

Posted by: ginger470132 | October 25, 2010 11:29 AM | Report abuse

When the branches get together as humble mortals, they meet. When the branches get together as puffed-up demi-gods, they posture. Americans can tell the difference between a uniter and a divider.

Posted by: miscparty | October 25, 2010 11:38 AM | Report abuse

Hmmm, according to 'ginger470132' its GOOD when Obama 'blows the debt through the roof', but 'BAD' when repubs do it.

Barack HUSSEIN Obama has run up more debt that ALL presidents from Washington through Reagan COMBINED.

Posted by: Ron16 | October 25, 2010 11:50 AM | Report abuse


Posted by: veritasinmedium | October 25, 2010 12:17 PM | Report abuse

Who cares? SCOTUS is as corrupt as Congress. Time for this group to be shut down too. We don't have anything left in the executive or judicial branches worth keeping. Time to return authority to the states. So attending or not attending the SOTU address is a nonissue.

Posted by: Desertdiva1 | October 25, 2010 12:18 PM | Report abuse

If I were Alito I wouldn't go and probably be both disrespected and used as a political prop again. When the GOP takes over the House I hope they follow Charles Krauthammer's advice and make sure that the seats of all the Justices who stay away remain empty to take this arrogant President down a notch or two.

Posted by: bbface21 | October 25, 2010 12:26 PM | Report abuse

Glenn Beck should be a Supreme Court justice.

Posted by: motogp46 | October 25, 2010 12:36 PM | Report abuse

Alito should man up. He can't take a comment from the podium about a badly decided case? He should get a little bit more spine and show up, if only to prove he can face those who don't agree with him.

Posted by: dbitt | October 25, 2010 1:09 PM | Report abuse

Arrogant. The SCOTUS is an equal branch of government with congress and the executive. They are supposed to be non-partisan, but as evidenced by results in their 5-4 votes (and in their hearts) they have to know they are not. In our system of government, when they are politically appointed by presidents of either party, the decisions they render are rarely pure. So any criticism that comes their way should be taken as the other two branches endure theirs: stoically.

Instead, some feel maligned. And indeed, contrary to one comment in the article, they can respond to critics by continuing to make judgments along partisan lines. The aura of sitting supreme court justices, may have once been regarded as important and respectful, but since year 2000 and more recently, they are revealed as political animals, just like the other two branches of government. The decisions of the so-called Roberts Court, for instance, are now mostly predictable.

It is immaterial whether the justices decide to attend the SOTU. But for the sake of their image as participating governors of our country and fully engaged in the process, they might reconsider and brave the consequences.

Posted by: robinx | October 25, 2010 1:22 PM | Report abuse

Obama might opt for the UN to sit in for them.

Posted by: Montana_Miles | October 25, 2010 1:27 PM | Report abuse

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Posted by: jiexiao81 | October 25, 2010 1:47 PM | Report abuse

If Alito decides to attend the SOTU, he can take potted plant lessons from Thomas who was done a marvelous potted plant impression during years of SCOTUS hearings.

Posted by: 20steveltd | October 25, 2010 2:08 PM | Report abuse

Scotus believes it's ok to arrest an African-American child for eating on the subway or strip search an African-American child... but when SCOTUS holds that Corporations have free speech and other rights without any of the responcibilities (i.e., e.g., to serve in the military, to serve on a jury, to pay all the catagories of taxes paid by real persons...) then SCOTUS' feelings are hurt when the Leader of the Free World (of human beings) criticizes them.

there should be cameras in the SCOTUS recording every argument and decision they make.

maybe Alito and Roberts should wear their hoods - so that no one will know it's them at the SOTU

(Uncle Thomas would have his right to wear a hood also - except it might not be considered "right" for him to exercize that "right")

Let the Obama children wear the natural texture of their hair - teach them to love the natural texture of their hair (just as "white" children are taught to love theirs...)

Posted by: stephendavid2002 | October 25, 2010 2:19 PM | Report abuse

Little ron12: You have been drinking the "TEA" again if you think a lie with the capitalizing of Obama's middle name means anything to the literate. Please get your "ABC" blocks out for your fans, and head to "HEADSTART" for help in dealing with the abstract. That "THINKY" stuff that you may be able to do with some "HELP."

Posted by: RogerRamjet2 | October 25, 2010 2:49 PM | Report abuse

We ara well past 1913 . To go has become tradition and with today's access not going is done in poor taste. He made a decision and many disagree. Many disagree with the root where the definition of 'person' was expanded. The issue was raised in the courts argument. They should be told to man up. If they can't be man enough then they shouldn't have taken the job in the first place. Seems like the uppercrust is just milktoast. I'd like to see them center ice in the play-offs.

Posted by: lighthouses7 | October 25, 2010 2:55 PM | Report abuse

I don't really care about the court going to the SOTU, but what signal is it going to send about being non-partisan when they start going back to them on the next Republican presidency?

Posted by: cashink2003 | October 25, 2010 3:51 PM | Report abuse

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