Supreme Court won't be fully represented at State of the Union

By Robert Barnes
Tuesday, January 25, 2011; 3:57 AM

The Supreme Court finds itself again in the political limelight, a place most justices try to avoid.

A combination of events, concluding with the question of which justices will attend President Obama's State of the Union address Tuesday night, has brought complaints, partisan charges and renewed scrutiny to the court.

Justice Antonin Scalia's decision to give constitutional pointers Monday to the House Tea Party Caucus headed by Rep. Michele Bachmann (R-Minn.) prompted a debate among judicial ethicists about whether justices should associate with political groups that have clear interests on issues that will probably come before the court.

Before that, the first anniversary of the court's decision to give corporations and unions a greater role in campaign spending brought renewed criticism from liberal groups and complaints about two justices from a government watchdog group.

Common Cause charged Scalia and Justice Clarence Thomas with conflicts of interest, and on Monday Thomas amended his financial disclosure reports for the past 13 years to reflect his wife's employers, an omission the group had criticized.

Finally, court-watchers will look for partisan motivations Tuesday night when at least some of the black-robed justices file into the House chamber for the State of the Union.

The question of who will show and who will stay home has taken on added weight after last year's speech, when some justices took offense at the president's use of the address to criticize the court's decision in Citizens United v. Federal Election Commission.

The only known no-show at this point is Justice Samuel A. Alito Jr., who is taking advantage of a perfectly timed speaking engagement in Hawaii to avoid the event at which he became a reluctant player last January. Cameras caught him muttering "not true" to Obama's charges.

Since then, Chief Justice John G. Roberts Jr., Scalia and Thomas have objected to what Roberts called the "political pep rally" aspect of the speech, as justices are expected to sit silently through the cheering and jeering around them.

Their reluctance could lead to a scenario in which only justices appointed by Democratic presidents attend Obama's speech, underscoring the court's new reality: Its conservative members were appointed by Republicans, its liberal members by Democrats.

Steven Lubet, an expert on judicial ethics at Northwestern University School of Law, said the court seems to alternate between periods of "extreme reticence" and high visibility.

"We are at a high point on the visibility cycle," Lubet said in an interview. "But I don't know whether one's better than the other."

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