The wording in the Constitution is simple and straightforward: the President “shall from time to time give to the Congress Information of the State of the Union.” There's nothing in there about the Supreme Court justices and, accordingly, there's nothing simple and straightforward about their attendance.
This year, six justices were in attendance, while three of the most conservative members of the court, Justices Antonin Scalia, Clarence Thomas and Samuel Alito, were noticeably absent. In the modern era, custom has held that the justices would show up in their official robes and sit impassively. But in recent years, they've become more resistant to the tradition.
Justice Antonin Scalia’s absence is no surprise. It was the 19th State of the Union in a row that he’s skipped since he considers the speech a “childish spectacle.”
Justice Clarence Thomas’s empty seat was also unsurprising. In 2012, Thomas said he doesn’t attend the annual event because “it has become so partisan and it's very uncomfortable for a judge to sit there.”
Thomas’s remark gets to the heart of why the State of the Union has become a painful event for the justices: the address has become a “political pep rally,” according to Chief Justice John Roberts (who still attends nonetheless), as the justices are forced to sit calmly while the President and members of government around them cheer and crow about the politics of the moment.
For years, attendance among the justices has been declining: From 1965 through 1980, the attendance rate was 84 percent. Over the next two decades, the number dropped to 53 percent. Since 2000, the rate has fallen to 32 percent, according to a study by Todd Peppers of Roanoke College and Michael Giles of Emory University.
This tension between the speech and the highest court in the land came to a head in 2010, when President Obama directly criticized a conservative Supreme Court decision.
“With all due deference to 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," he said of the Citizens United v. Federal Election Commission decision, which allowed corporations to donate to political candidates. Justice Samuel Alito then shook his head and whispered, "not true."
This was a clear breaking point in the years of simmering discontent between the justices and the annual speech. After the 2010 State of the Union, Alito said the speeches have become too awkward and that the justices have to sit there “like the proverbial potted plant”and he hasn’t been to a State of the Union since.
Justice Stephen Breyer, a liberal, is the only justice that attends every year (in fact, three times in recent history he has been the only justice in attendance), but his defense was hardly inspiring: “People attend if they wish to attend. I do wish to attend, so I go,” he said in 2005.
Tonight there probably won't be any public controversy between between the President and the justices in the vein of 2010's "not true." But the grim faces of the six in attendance speak volumes.