The Roberts Court: Absent Without Leave

The New York Times Online Updated October 21, 2010, 02:49 PMRoo

Forum:  The Justices and Decorum Outside the Courtroom

Should Supreme Court justices show restraint in airing their political views?

No Opting Out of Civic Duty

by Patricia J. Williams

Chief Justice John Roberts, having said that the State of the Union speech has “degenerated into a political pep rally,” now says that members of the Supreme Court should not have to attend if they don’t want to. Don’t want to? The idea that justices should just ditch an important tradition because they have better things to do (grab a beer? watch a football game?) is a frightening one.

There are a number of very objectionable ideas at the heart of such license-taking. One is that we can simply opt out of listening to people whose opinions diverge from our own. This is not a sustainable idea in a democracy, where negotiation of complex and disparate ideas is central to the process. This is so whether one is a member of the legislature, the executive, or the judiciary.

The State of the Union address is most assuredly not a “political pep rally.” It is where our president speaks to us, the people, and where we, as Americans, hear the chief executive of our nation summarize the state of not merely of our government, but of our union. If it is political to some inherent degree, it is simultaneously a ritual that transcends politics. And if a few rowdy attendees in the chamber have taken to shouting-out in recent years, perhaps asserting some rules of order would be a better alternative than just not showing up.

The annual address is not a reality show, to be casually switched off when you’re bored. Justice Samuel Alito has said he will not attend the next address because he is expected to sit impassively “like the proverbial potted plant.” (Like a child forced to eat spinach, he mouthed “not true” during the last State of the Union.)

Yet it most decidedly reveals a justice’s politics when he “opts out” of our nation’s most important shared forum. Moreover, a judge’s ability to be deliberative, to attend to ideas, and to listen to all sides of a controversy is what each member of the court promises when taking the oath of office. He betrays that principle if he, by his own pronouncement, cannot or will not maintain a modicum of judicial demeanor when he hears something with which he disagrees.

Regardless of political persuasion (and there was a time when politics was a matter of persuasion), listening to the State of the Union address is a matter of the most basic civic responsibility. That the court — the branch supposedly most symbolic of impassive impartiality — should signal its disunity so blatantly is astonishing.


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Filed under john roberts, Samuel Alito, state of the union, supreme court

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