Missing justices

[Arthur D. Wolf]

        Like David and others, I am also mystified why the justices feel they
cannot applaud anything in the State of the Union Address when they do
attend.  Is there nothing in any President's State of the Union with which
any one of them agrees?  I consider it rude for the Court members to accept
an invitation to sit in the front row of the House for the State of the
Union Address and then sit there like pillars of stone.  If you are going
to be rude, you should not accept an invitation to anybody's house (e.g.,
House of Representatives, White House, private residence, etc.).

        The excuse that the Government appears before the Court is really lame.
The fact of the matter is that the justices attend many functions where
attorneys who appear before the Court are in attendance.  For example, the
Justices regularly appear (and address) the meetings of the Judicial
Conferences of the Circuits, where attorneys are in attendance.  Justice
Ginsburg did not reject the AALS invitation last January simply because law
professors appear before her Court, or worse, are critical (sometimes
hypercritical) of what she and the Court do.  Justices also regularly
accept invitations to teach in summer abroad programs, where attorneys or
future attorneys are in close contact.  These summer program invitations to
the justices (and their acceptance) are, in my mind, some of the biggest
boondoggles in public life these days.  Where is their hyperethical
vigilance on these occasions?

        The last I checked the Supreme Court is still one of the three branches of
the government.  The State of the Union address is required by the
Constitution.  It contains many segments that relate to the Court as a
Court, to the judiciary, and, more important, to the members of the Court
as American citizens.  If they think they cannot or should not appear in
their official capacity (robes, arms folded, straightfaced, etc.), then
they should attend in "civilian" clothes and ask to be seated in the
visitors' gallery.

        In addition, the Court, either directly or through the Judicial
Conference, makes many requests and appearances before the political
branches, especially Congress.  When I worked for a member of the House
Judiciary Committee, I recall many occasions when the judges appeared
before the Committee to argue for or against pending legislation, or before
the Appropriations Committee to argue for more or less money (usually more
money).  To maintain the illusion that the Court is not involved in
politics (putting aside the point that many critics of the Court's
decisions believe it to be a "political" body on occasion) is a deception.
I should add that, during my tenure on Capitol Hill, Chief Justice Burger
held an annual cocktail party in the Supreme Court Building to which he
invited members of Congress and their staffs.  I do not know if the current
Chief maintains that practice, but I do not recall any member of the Court
objecting to the occasion.  It seemed to me at the time (and in retrospect)
that Chief Justice Burger was doing a good thing: increasing the contacts
between the Court and the Congress.  Indeed I also thought he opened up the
Court more to public view, in other ways, than it had been under past Chief
Justices.  If the Court's withdrawal from the State of the Union Address is
a sign of retreating from public view, this can only be bad for the Court
and the Republic.

        As an American citizen (taking off my law professor hat, for the moment),
I am very offended by the Court's standoffish attitude about the State of
the Union Address.  One of these days, Congress is going to take offense
too and cut the Court's budget, which may not be a bad idea in any event.
For example, over the past years, the Court has asked Congress for more
money to hire more clerks, while reducing dramatically the number of cases
it accepts for review.  It was not long ago that the Court regularly heard
about 150 cases per term; that number is now down to about 90.  More money
for what?


                                                        Art Wolf
                                                        Western New England College




At 08:13 AM 2/4/2000 -0800, you wrote:
>On Fri, 4 Feb 2000, Eric M. Freedman wrote:
>
>> [snip]
>>   From where I now sit, it seems to me that if I were ever sitting on
>> the Court, I would stay away, not wishing to be used as a TV prop to
>> implicitly endorse whatever the President might be happening to say.
>> [snip]
>
>While others obviously can have a different take, non-lawyers who've
>discussed this with me don't find a great endorsement in the Justices
>resolute failure to applaud anything.  I mean, even members of parties
>other than the Presidents applaud once in a while during the address.
>
>-David B. Cruz, USC Law (Cal.)
>