U.S. Supreme Court Justice Clarence Thomas
U.S. Supreme Court Justice Clarence Thomas (Photo: Diego M. Radzinschi / NLJ)

Four of the Supreme Court’s nine justices were absent at the State of the Union address tonight, continuing a long-standing pattern of spotty attendance by members of the court.

Three of the justices who did not attend—conservative justices Antonin Scalia, Clarence Thomas and Samuel Alito Jr.—have made statements in the past explaining why they feel it is inappropriate or uncomfortable to attend.

Justice Sonia Sotomayor was also absent. She was in California on Monday for a previously scheduled law school appearance.

Chief Justice John Roberts Jr. and Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan were seated in the front row, mostly quiet as others applauded. They, like military top brass, usually don’t join in the applause, a symbol of their purportedly apolitical role in the government. Also in the Supreme Court contingent were the court’s new clerk, Scott Harris; court marshal Pamela Talkin; and Jeffrey Minear, counselor to the chief justice.

Court scholars Todd Peppers and Michael Giles, in a 2011 paper on justices and the State of the Union address, said only 31 percent of justices have attended since 2000, down from 84 percent from 1965 to 1980. There is some correlation between a justice’s attendance and whether the president who appointed him or her is speaking. Scalia once said that it was easier to stay home “when the president giving the State of the Union is not the man who appointed you.”

The tally of justices in the audience has been the focus of attention since 2010, when President Barack Obama took the rare step of criticizing the high court during his remarks—a critique of the court’s then-fresh Citizens United ruling on campaign finance. Tonight, Obama did not mention the court by name, but he did refer to it indirectly when he said, “Last year, part of the Voting Rights Act was weakened.”

In 2010, Thomas told Stetson University students, “it has become so partisan and it’s very uncomfortable for a judge to sit there. … There’s a lot that you don’t hear on TV—the catcalls, the whooping and hollering and under-the-breath comments.”

Alito, who caused a stir in 2010 by mouthing “not true” when Obama criticized the court, has told audiences more than once that he has no interest in attending. Justices have to sit “like the proverbial potted plant,” he said.

For his part, Scalia has called the State of the Union address a “juvenile spectacle” at which justices must sit “like bumps on a log,” while members of Congress cheer or boo depending on what the president says.

Roberts has also been critical, calling the event a “political pep rally.” But he has attended nonetheless, as he did tonight, perhaps because of his role as chief justice, and also to soften the perception that justices divide along political lines on the question of attendance.