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."

Scalia's appearance on Capitol Hill split judicial ethicists, some of whom said it was inappropriate to address members of Congress with a partisan persuasion, and others who said justices do no harm by speaking publicly.

Members who attended the meeting said Scalia answered questions, and a handful of Democrats attended as well. They said he told them that Congress sometimes doesn't exercise its full power.

Rep. Janice D. Schakowsky (D-Ill.), one of the liberal lawmakers in attendance, described the discussion as "fascinating."

Last week, Common Cause noted the anniversary of the Citizens United decision by asking the Justice Department to investigate whether Thomas and Scalia should not have heard the case. It charged the two had attended private strategy sessions with conservative fundraisers organized by Charles and David Koch, billionaire brothers active in conservative causes.

Scalia said through a court spokesman that he spoke at a private dinner sponsored by Charles Koch and the Federalist Society in 2007 that was separate from the conference. The spokeswoman said Thomas spoke at a similar event in 2008 and "stopped by" the conference. Both speeches came before the court had accepted the Citizens United case, and their expenses were paid by the Federalist Society.

But Common Cause also charged that Thomas had not disclosed his wife Virginia Lamp Thomas's employment, including what the group said was a total income of nearly $700,000 received from the conservative Heritage Foundation from 2003 to 2007.

Thomas on Monday amended the forms to detail his wife's past employers dating back to 1989: the Labor Department, former representative Richard K. Armey (R-Tex.), Heritage and Hillsdale College. Thomas said the information was "inadvertently omitted due to a misunderstanding of the filing instructions."

Common Cause President Bob Edgar was dissatisfied with Thomas's brief explanation.

"Justice Thomas sits on the highest court of the land, is called upon daily to understand and interpret the most complicated legal issues of our day and makes decisions that affect millions," Edgar said in a statement. "It is hard to see how he could have misunderstood the simple directions of a federal disclosure form."

It's against this backdrop that the issue of State of the Union attendance arises. The whole court almost never attends, but Roberts has attended every speech since he joined the court in 2005. His absence would be conspicuous.

He expressed his displeasure with last year's speech at an Alabama law school appearance, mentioning the televised scene of Democratic lawmakers jumping to their feet to cheer Obama's criticism of the Citizens United decision.

"The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling," Roberts said. "And it does cause you to think whether or not it makes sense for us to be there." Staff writer Felicia Sonmez contributed to this report.

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