Will the Justices skip the 2020 State of the Union?

CJ Rehnquist skipped the 1999 address during the impeachment trial, and all 9 Justices skipped the 2000 address

|The Volokh Conspiracy |

On January 19, 1999, President Clinton gave his penultimate State of the Union address. During that time, the Senate impeachment trial was ongoing. Indeed, earlier that day, his lawyers had wrapped up their first day of arguments. Later that evening, Chief Justice Rehnquist, as well as Justices Stevens and Scalia were absent from the address. Todd Peppers and Micheal Giles speculated that the "Chief Justice effectively 'recused' himself from attending the 1999 State of the Union Address, since he was currently presiding over the impeachment trial in the United States Senate."

One year later, President Clinton gave his final state of the union address on January 27, 2000. All nine Justices stayed home from the address. The Court sent a two-sentence message to the Sergeant at Arms:

"Justices of the court had planned to attend the State of the Union address, but travel changes and minor illnesses have intervened. No justices will be in attendance, but they do thank you for the invitation to be present for the address."

The Times observed that several of the Justices seemed to have legitimate reasons to skip it:

The two Clinton appointees to the court, Justices Stephen G. Breyer and Ruth Bader Ginsburg, cited health reasons for skipping the speech.

Justice Ginsburg has been undergoing radiation treatment after colon cancer surgery. Justice Breyer sent Mr. Clinton a note saying he wanted to attend, but he was homebound with the flu.

Justice John Paul Stevens is taking care of his wife, who recently had hip replacement surgery. Justice Clarence Thomas is in New Orleans, where his brother died on Sunday. Justice Anthony M. Kennedy has to be in New York to deliver a speech on Friday.

There was no explanation from the court for the absences of Chief Justice William H. Rehnquist or Justices Antonin Scalia, Sandra Day O'Connor or David H. Souter. Last year, when Chief Justice Rehnquist was absent, he stayed away because he was presiding over the president's impeachment trial.

Ted Olson offered some speculation:

The White House had no comment on the court's truancy, but others did.

''I'm just astonished,'' said Theodore B. Olson, a Washington lawyer and former Justice Department official in the Reagan administration. ''On the other hand, these things have become so ritualistic and boring that it would be easy to find more entertaining alternatives.''

''Maybe,'' Mr. Olson added, ''enough of them saw what the chief justice went through during the impeachment trial that they decided they didn't want to go near the place.''

Will any of the Justices skip the 2020 address? If Roberts follows Rehnquist's practice, he may skip the address. We know that Justices Alito and Thomas do not attend the addresses as a matter of principle. And Justice Ginsburg has never attended a State of the Union address with a Republic president. (Yes, her attendance pattern is that obvious.). If Roberts is absent, Breyer will be the most senior-associate Justice present. He will be flanked by Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh.

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  1. Is there a record of which ones Ginsburg has attended? That would seem to be important to know before declaring there is a pattern.

    1. She skipped all of W. Bush’s. Went to all of Obama’s. Skipped all of Trump’s….

      1. Some think justices attending is unseemly regardless.

    2. Is there a record of which ones Ginsburg has stayed awake for?

  2. I think it would not be terrible if SCOTUS decided to not attend these in the future–regardless of party of a president. Or, to send one token member. I very much respect the justices who have already decided to never attend–again, regardless of who happens to be president.

    1. Never say never. When President Ocasio-Cortez gives the SOTU with Congressmen Jacob Wohl and John Flynn, Jr. in the house, that’s a show everyone will want to see.

      1. *Michael Flynn Jr.

        1. oops thks

      2. Hopefully there will never be an President Ocasio-Cortez. If there is, I pray I never live long enough to see it.

        1. Were such an impossible event to occur, then I would be living in a different Country. Perhaps a Country that became a State that seceded after said election and once again became a Country! I expect that said new Country would offer the same to neighbor States as WV offered to VA 2A sanctuary counties.

        2. If she does her party would be happy to make that happen for you, based on the track record of similar parties in other countries.

  3. Just don’t invite the President. Insist he deliver a letter. Which I suspect would be on several illegible pages written with a sharpie. Much like his entire Presidential tenure to date.

    1. If he’s this dumb and President with a hot wife and riches what does that say about you and the multitrillion dollar machine that is trying to bring him down?

      1. Melanie was trampy in her prime. Now she’s a botox-saturated, saggy 50-year-old past her dump-by date. Also, how much of a “wife” is someone who won’t share a bed? Other than that, great comment.

        1. I am glad to look at Melania rather than having to see Hillary’s face plastered everywhere all day long. That would probably be my honest opinion even if I was a Democrat who agreed with everything she said.

        2. That doesn’t sound very progressive of you

          1. Melanie is a birther, a hypocrite, and a clinger. She deserves opprobrium.

        3. I believe the good Rev has lost it. Now he’s projecting HRC and/or Pelosi, et. al. onto Melania. Talk about way past their prime, if they ever had one!

          It is truly sad that RAK didn’t seek professional assistance when it was just a projection problem; as it is now apparent that he is completely delusional. We need to ensure that a wellness check is done for the good Rev on 4 November 2020.

          1. Clinton and Pelosi are educated, accomplished, decent women.

            Melania Trump is an uneducated, unskilled, low-character dope who lied about earning a degree and traded her youth to a flabby old man in exchange for cash and a solution to her sketchy immigration status.

    2. Pelosi did invite him, she can’t just call him up and cancel, if might lead to some hard feelings between the two.

    3. I’m sure President Trump would prefer sending a written SOTU to Congress, both House and Senate. I would lay odds that he would then have a major rally, in the largest stadium available, and deliver his SOTU directly to the American people. Unfortunately for Progressive Plantation Elitist Masters, Uncle Tom Overseers, and their Progressive Propagandists; they would not be invited.

    4. Accidentally flagged, they need an unflag button.

  4. I like how nobody (except maybe the author briefly) seems to care that Ginsburg is orders of magnitude more nakedly partisan than any of her colleagues.

    1. If you say something forcefully, that makes it a fact and not just your opinion.

      1. So everybody’s hallucinating when they talk about this or her partisan statements to the media?

        1. And when thousands of people remark about Trump’s latest racist screed? I assume that, just because a huge number of people find him racist, you would strongly resist automatically adopting that view, or endorsing that description. I assume and presume that, instead, you would form your own conclusions, right?

  5. I love Josh’s posts. Even on ones I disagree they are still thoughtful and insightful.

    1. How sad for him that you’ll never be hiring for a strong law school faculty.

  6. It’s a complete mystery to me why everyone doesn’t skip the State of the Union. Besides the ones constitutionally required to be there.

    1. “Besides the ones constitutionally required to be there.”

      Who would that be?

      The Constitution does not require a speech, just a report. No president between Adams and Taft made a personal appearance.

  7. Will Helen accept the invitation to Donny’s party? Oh, the drama!

  8. “Justice Ginsburg has never attended a State of the Union address with a Republic president.”

    I wonder if she has ever attended a State of the Union with a Democracy president…

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