One final contribution to the post-mortem on the State of the Union address.
In a question-and-answer session at Stetson University College of Law in Florida this week, Justice Clarence Thomas defended the court's decision in Citizens United v. Federal Election Commission. This was, of course, the decision that inspired President Obama to criticize the ruling by addressing the justices directly in the audience.
Thomas offered several reasons for the court's decision, which I won't repeat here; but what intrigued me was his parenthetical explanation for his absence from the State of the Union address. "I don't go because it has become so partisan," he said, "and it's very uncomfortable for a judge to sit there. There's a lot that you don't hear on TV: The catcalls, the whooping and hollering and under-the-breath comments. One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches. It's just an example of why I don't go."
This is a refreshingly antediluvian view of judging: Discomfort in the presence of partisan misbehavior, an obligation to remain passive--or at any rate not to react--when provoked. What struck me about the famous moment when Justice Alito visibly shook his head and muttered when Obama misrepresented the meaning of the decision was not Alito's action--which was swift, reflexive, and not intended for public consumption--but the alacrity with which the Senate Majority Whip, Dick Durbin of Illinois, and several of his Democratic colleagues, sprang to their feet and loudly and conspicuously applauded Obama's statement. Durbin, in particular, seemed to lean over Alito as he clapped, and clearly took some delight in taunting the justices.
This is not only childish behavior on the part of Durbin and Senate Democrats, but constitutionally inappropriate. The justices cannot and should not respond to immature provocations, and the Democrats are likely to repeat themselves whenever Obama takes advantage of a captive judicial audience.
What to do? Really, there is only one thing the Supreme Court can do, and that is to adopt the Thomas precedent and decline to attend -- without explanation -- future State of the Union addresses. The presence of the justices is purely a courtesy to the president; there is no statutory requirement or historic precedent which obliges them to sit in the audience. However, as long as their presence is a factor in the executive/legislative "conversation," as Thomas calls it, the justices, en masse, would be to wise to uphold the constitutional principle of the separation of powers, and stay away.