The New York Times highlighted a speech that Justice Clarence Thomas delivered at a Florida law school in which he defended the Supreme Court’s recent campaign finance decision in Citizens United v. FEC. In that speech, Thomas also addressed why he chose to forgo the president’s state of the union address:
“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” he said, adding that “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,” he added in an apparent reference to last week’s address, “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.”
Jennifer Rubin of Commentary Magazine had some interesting insights on these comments. Rubin notes that the State of the Union has increasingly become a forum for the president to “lay out a political agenda” and—apparently now—make jabs at the other branches of government. It is understandable that judges, who are not political players, would be uncomfortable at such an event.
“And really,” Rubin continues, “there is no purpose to be served by the judges sitting mutely (or not) as the president solicits cheers for health care or incurs boos for a budget freeze.” Rubin is right. Judges are fundamentally apolitical in their offices. Judges take no part in crafting or promoting laws and policies, so there is no reason they need to be present while the president briefs lawmakers about his policy plans.
Rubin makes an interesting reference to the ABA’s Canon 4 of judicial ethics, which forbids judges from engaging in political or campaign activity “that is inconsistent with the independence, integrity, or impartiality of the judiciary.” While Rubin does not think that attending the State of the Union address amounts to “political activity,” she does suggest that the increasing political nature of the event—especially its interactivity—makes it come close:
If the purpose of that rule is to maintain the divide between judges and politics and to avoid ensnaring judges in partisan brawls, then a good place to start would be for justices to follow Justice Thomas’s guidance.
Attending the State of the Union does not amount to a violation of judicial ethics, and therefore no disparagement should attach to justices who choose to attend, but given the partisan nature of the event, and the recent attempt of the President to use the speech to politicize Supreme Court decisions, attendance certainly does not help to fulfill the rule’s purpose of insulating judges from politics.