The Volokh Conspiracy
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Don't Go to the State of the Union
Let the Wilsonian Nightmare End
Over at The Dispatch, I have a new piece on the State of the Union address and why the justices should stay home. After President Obama caused a stir by criticizing the Court for its Citizens United decision during the State of the Union address, I wrote an article on presidential criticisms of the judiciary in public speeches and on the evolution of the State of the Union address. Chief Justice John Roberts complained after that episode that the event seemed like a presidential pep rally. Well, no duh. The State of the Union is a presidential pep rally. That was Woodrow Wilson's goal when he started the modern tradition of an annual in-person speech to a joint session of Congress.
One can see why such a platform is politically useful to the president. But no one else should play along, or pretend that the State of the Union is some kind civic ceremony. It is, and has always been, a vehicle for the president to bully Congress into doing what he wants. There is no reason for the justices to attend such an event, and no reason for the opposition members of Congress to show up either.
From the piece:
Who knows what Trump might choose to say in this State of the Union address, just days removed from this signature loss in the Supreme Court and with a long track record of losses in the lower courts. Will the justices be required to "sit there expressionless" as the president's "cheering and hollering" supporters surround them and the president himself looks down on them and calls them fools and perhaps announces his own court-packing plan?
Now would be a good time for the Wilsonian experiment to come to an end. It seems like it is only a matter of time before the Republican prediction from back in 1913 comes true and a president is greeted with a cacophony of boos. Instead of Democrat House Speaker Nancy Pelosi waiting until the end of a Trump presidential address to show her disdain by ripping up his speech, a future House speaker might take the opportunity to show even less restraint while sitting on camera behind the president. Rather than a single member of Congress shouting "liar" at President Joe Biden during his speech, a partisan majority might decide to shout down the president with jeers and boos. After the midterm elections, an emboldened new Democratic congressional majority might simply refuse to invite President Trump to the chambers to deliver a speech at all. He can, after all, deliver a speech from the White House lawn any time he wants.
