President Obama and some members of Congress are trying to set a new tone at next week's State of the Union address, having apparently concluded that last year's hyper-partisan smackdown did not serve them well.
Bucking more than 200 years of tradition, some lawmakers have said they plan to sit with members of the opposite party when the president makes his Jan. 25 address. Sen. Mark Udall, D.-Colo., was the first to propose the idea.
"Beyond custom, there is no rule or reason that on this night we should emphasize divided government, separated by party, instead of being seen united as a country," he wrote.(1) Democrat Charles Schumer of New York and Republican Tom Coburn of Oklahoma have already said that they plan to sit together, whether others embrace the mixed seating idea or not.
Younger Americans, who grew up in the era of Fox-vs.-MSNBC segregation, may find the spectacle of Democrats and Republicans sitting together in the House chamber as eye-opening as their grandparents found the 1967 film "Guess Who's Coming To Dinner." The legislative togetherness cannot hurt. My main question leading up to the State of the Union, however, is not where the lawmakers will sit, but how many Supreme Court justices will attend. My hope is none.
The Supreme Court is supposed to be removed from partisan politics. While lawmakers engage in their choreographed waves of standing and applauding, separated by an aisle or not, the Supreme Court justices are expected to sit in polite silence throughout the address.
Last year, however, Obama decided to use his State of the Union speech as an opportunity to attack the court for its ruling in Citizens United v. Federal Election Commission, which overturned restrictions on campaign spending by corporations and unions.(2) "With all due deference to the separation of powers, last week the Supreme Court reversed a century of law that, I believe, will open the floodgates for special interests, including foreign corporations, to spend without limit in our elections," the president said.
In the face of this provocation, Justice Samuel A. Alito Jr. could not resist shaking his head as he appeared to mouth the words, "not true, not true."
So I doubt Alito will return this year for another verbal beating. Justices Clarence Thomas and Antonin Scalia stayed home last year, and probably will do so again this year. Chief Justice John Roberts also will most likely feel little desire to attend, though I have no idea how he perceives the court's obligations, or his own as chief justice.
Assuming Alito, Thomas, Scalia and Roberts stay home, there is a troublesome risk that we will witness the court's more conservative wing sitting out the event while the more liberal members, possibly joined by centrist Justice Anthony Kennedy, bask in the president's glory. The result could be a display of partisanship even more pronounced than the legislators' traditional separate-sides-of-the-aisle seating.
The court's stature is liable to be severely damaged if its members are seen by the public as being loyal to one party or the other. In the end, such partisanship helps nobody, which is why I so strongly hope the more liberal-leaning justices will stay away, too. If they want to watch the speech, they can do so at home in front of the TV screen instead of in front of the TV cameras.
The court's presence at the State of the Union address ought to be a symbol of cooperation among the branches of government. Yet while the three branches are engaged in a shared task, they can do full justice to that task only by maintaining their separation. Generally this separation is only metaphorical. But if the head of the executive branch uses his home-field advantage to attack the court, the court's only defense is to stay away.
The appearance of independence is particularly important for the current court, since it includes two justices appointed by the sitting president, one of whom served the Obama administration as solicitor general. Justices Sonia Sotomayor and Elena Kagan must show that they are not the president's justices. The president nominated them, but now that they are confirmed, the Obama appointees - like their brethren - owe their allegiance to the law and to the Constitution, not to the sitting chief executive.
The court, of course, has its own internal ideological divisions, which threaten to reduce jurisprudence to a simple numbers game, with the political party that can manage to appoint the most justices taking the prize.
Several members of the Supreme Court have argued that allowing court proceedings to be televised would introduce inappropriate political pressures. I believe this is thoroughly mistaken, and that allowing the country to see what happens in the third branch of government can only strengthen that branch's power. But if the justices want to fight the forces of politicization by staying away from cameras, Jan. 25 is the appropriate time for them to do it.