Missing justices

[Arthur D. Wolf]

        I would be astounded (and depressed) if the Solicitor General or any other
member of the executive branch even suggested to the President (or his
speech-writers) that some line be inserted in a State of the Union Address
to "test the Justices' reactions."  Our high officials are more honorable
than that.  Even FDR did not include any reference to his court-packing
plan in his inaugural address on January 20, 1937 (nor, as best I can tell,
in his state of the union address that year).  He sent the plan to Congress
on Feb. 5, 1937, in a separate presidential message.  Even if the justices
were inclined to applaud (or boo) in 1937, I cannot imagine President
Roosevelt testing the constitutional waters in his 1937 State of the Union
Address by proposing his court-packing plan.

        In addition, what if a justice applauded a presidential proposal that
later came before the Court for a determination of constitutionality?  Does
anyone on this list believe that a justice would say at conference:  "Gee,
I applauded that proposal at the President's state of the union address so
I guess I must vote to uphold its constitutionality"?  If you believe that,
stop drinking bottled water!!!

        In any event, if the Supreme Court, as an institution, considers it
improper to attend the State of the Union Address, it should simply decline
the invitation from Congress to attend with a polite "no, thank you,"
perhaps offering some reasons.  Of course, a written rejection of the
invitation might precipitate concurring and dissenting opinions, so perhaps
the Court has decided to let the justices decide for themselves.  As an
aside, if I had the opportunity to have a front row seat at an event
marking one of the great traditions of our country, I surely would not turn
it down.  For the justices, attending as private citizens and sitting in
the gallery might accommodate their concerns without offending Congress or
the President.



                                                        Art Wolf
                                                        Western New England College





At 01:58 PM 2/4/2000 EST, you wrote:
>While not the strongest excuse, the fact that the government is a party is
at least an excuse for not applauding.  Seeing the Justices applaud would
raise a cottage industry among the Supreme Court bar - not to mention the
press - as to what the Justices "think" about whatever the President is
saying, not to mention influencing the President and his aides/supporters
to inject into the speech items to test the Justices' reactions.  While I
don't think it an awful idea for them to attend, showing no reaction seems
a proper judicial posture.
>
>Gerald J. Russello
>Associate
>Covington & Burling
>