Ginsburg did not speak, and many in the crowd did not know she was there. She sat in the back, and most saw her only as they left the performance. Michaels did not announce her presence.
Ginsburg had not made public appearances since undergoing a pulmonary lobectomy Dec. 21 after doctors discovered cancerous nodules in her left lung. Recovery from such surgery typically takes six to eight weeks, according to medical specialists, and Ginsburg, for the first time since joining the court in 1993, missed a round of oral arguments in January.
Some on the extreme political right had insisted that the justice’s ailments were graver than the Supreme Court acknowledged, suggesting it would be an ominous sign if she skipped President Trump’s State of the Union address Tuesday night.
Actually, it would be more like par for the course. Ginsburg did not attend either of Trump’s previous speeches to Congress.
The court has said that although Ginsburg missed oral arguments last month, she will vote in the cases based on briefs and transcripts, and that she has participated from home in deciding which cases the court has accepted or rejected for its docket, as well as in some emergency decisions.
The court’s last statement on her health, released Jan. 11, said: “Her recovery from surgery is on track. Post-surgery evaluation indicates no evidence of remaining disease, and no further treatment is required.”
Ginsburg has spoken with the filmmakers who on Jan. 22 were nominated for an Academy Award for their documentary “RBG.” Her son James, who was at Monday night’s performance, said Ginsburg walks a mile a day and is working with her trainer again.
The court will meet next in public session Feb. 19.
Despite her appearance Monday night, it is unlikely that Ginsburg will go to the Capitol on Tuesday. Few things are mandatory for a Supreme Court justice, and attending the State of the Union address is not one of them.
Justice Clarence Thomas has not been since 2009. Justice Antonin Scalia was in the midst of a two-decade hiatus when he died in 2016. Justice Stephen G. Breyer has an almost perfect attendance record, but when he contracted the flu, it meant that not a single member of the court showed for President Bill Clinton’s January 2000 address.
Ginsburg has attended past State of the Union addresses — television cameras have caught her napping at several. But Ginsburg, who created controversy when Trump was a candidate by calling him a “faker” and expressing distress about the possibility of his election, has not attended Trump’s events. She skipped his first speech to Congress in February 2017 and was out of town at a speaking appearance last year, an engagement she accepted before the date was announced.
She has attended White House events for her two newest colleagues nominated by Trump — Justices Neil M. Gorsuch and Brett M. Kavanaugh — and the president tweeted his well wishes after her surgery.
Ginsburg, who was chosen for the court by Clinton, appears to have a more partisan attendance record than most justices.
She did not show for any State of the Union address given by President George W. Bush, whose election was secured by the court’s decision in Bush v. Gore. The Bush years in general were the low point for Supreme Court attendance; sometimes, Breyer was the lone attendee.
On the other hand, Ginsburg made all of President Barack Obama’s speeches. She attended only some of those by Clinton.
In 2009, Ginsburg said she had attended that year’s presidential address for a specific reason. She had just undergone surgery for early-stage pancreatic cancer, and Sen. Jim Bunning (R-Ky.) had told an audience that she might not be around much longer.
“First, I wanted people to see that the Supreme Court isn’t all male,” Ginsburg, then the only female justice, told USA Today. “I also wanted them to see I was alive and well, contrary to that senator who said I’d be dead within nine months.”
Bunning, who apologized for his remarks, died in 2017.
Ginsburg’s absence from the public spotlight has been noticeable, in part because she is among the court’s most visible members. The Supreme Court is on its regularly scheduled winter break, and Ginsburg has canceled scheduled speaking events.
There’s a Twitter hashtag — #WheresRuth — and some on the right have demanded that she present herself.
“Still no sign,” former White House adviser Sebastian Gorka wrote on Twitter last week. “6 days left until Ruth Bader Ginsberg has to make her official appearance at @realDonaldTrump’s State of the Union.” Gorka misspelled the justice’s last name.
Even those justices who regularly attend the speeches — Chief Justice John G. Roberts Jr. and Justice Elena Kagan have perfect records — acknowledge the awkwardness of the event, where they are supposed to remain stoic while all around them members of Congress cheer and jeer.
“To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we are there,” Roberts once said.
Thomas explained his absence in 2010. “It’s very uncomfortable for a judge to sit there,” he said during a question-and-answer session at Stetson University College of Law:
“There’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments. One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches. It’s just an example of why I don’t go.”