WASHINGTON, Jan. 24, 2011 -- It's been nearly a year since Chief Justice John G. Roberts Jr. told an audience that he was "very troubled" by the "setting, circumstance and decorum" of the State of the Union speech where justices are forced to sit expressionless while Congress, "literally surrounds them" at times cheering and hollering.
Roberts was reacting to President Obama's last State of the Union address where the President criticized Citizen's United, the Supreme Court decision that invalidated decades-old federal legislation restricting corporate expenditures for electoral advocacy.
Six of the nine justices of the Supreme Court were sitting in the audience, and the cameras captured Justice Samuel Alito, shaking his head in disagreement when Obama said, "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."
Democratic senators sitting close to the justices stood up and cheered the president's words.
The justices rarely applaud the event, fearful that it might send the message that they are taking sides on an issue which might come before them.
Several weeks later Roberts commented on the experience and said, "to the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we are there."
This year's State of the Union might be a very different atmosphere because several members of Congress have stated their intention to sit next to a member of the opposing party in order to send a message of comity to the American public.
A press spokeswoman for the Court said that Justice Samuel Alito will miss this year's speech due to a commitment in Hawaii but she had no information on the plans of the other justices. It will be Justice Elena Kagan's first State of the Union.
Court Divided on Attending State of the Union Speech
Justice Clarence Thomas will undoubtedly choose not to be there. Last year he told an audience at the Stetson University college of Law "There's a lot that you don't hear on TV" he said, " — the catcalls, the whooping and hollering and under-the-breath comments."
Retired Justice John Paul Stevens agreed with Thomas. "I went to a few of them when I was first on the Court, but I stopped." Stevens told Jeffrey Toobin of The New Yorker last year. "They are political occasions, where I don't think our attendance is required."
But Justice Stephen Breyer told George Stephanopoulos in September that he will attend, even if he is the only Justice to do so. "I think the reason that I want to go and I think that the reason we should be there is because, particularly today, where for better or for worse, people get lots of their information visually. It shows in that room, this is your federal government,'" Breyer said. "The President is there. The cabinet is there. The Congress is there. The Joint Chiefs are there. And I'd like some of the judges to be there, too, because the judges have a role in this government."