By Michael M. Gleeson - 01/21/11 06:27 PM EST
Chief Justice John Roberts and Justice Samuel Alito face a difficult choice on whether to attend President Obama’s State of the Union address next week.
Alito and Roberts, who were both nominated by former President George W. Bush in 2005, have never missed a State of the Union address since joining the high court.
The Supreme Court’s public information office told The Hill it “could not yet confirm which justices might be attending.”
The attempted assassination of Rep. Gabrielle Giffords (D-Ariz.) earlier this month that left 6 dead, including U.S. District Judge John Roll, may play a factor in the Supreme Court’s decision making. The shooting has changed the tone in Washington, at least temporarily.
This year’s State of the Union event is expected to have more of a bipartisan spirit, which could make it more likely for the two justices at attend. Dozens of Republicans and Democrats are vowing to sit next to one another, breaking from the tradition of sitting on opposite sides of the House chamber.
In the wake of the deadly shooting, Roberts issued a statement on Roll’s death where he noted “we in the judiciary have suffered the terrible loss of one of our own.” He called Roll a “wise jurist” and expressed his condolences to Roll's wife and children.
Obama will undoubtedly address the attack in Tucson. Ariz., on Tuesday night, and may specifically mention Roll.
Questions surround the attendance of Alito and Roberts because of the controversy during last year’s address, when Alito shook his head and mouthed the words “Not true” as the president criticized the high court’s ruling on a campaign finance reform case.
Months after the speech, Alito said, “I doubt that I will [attend the 2011 State of the Union].” He added it is “very awkward” to attend the annual address and be surrounded by members of Congress who are constantly jeering and cheering.
“We have to sit there like the proverbial potted plant,” Alito said last October.
Roberts also has made it clear he feels uncomfortable attending the event.
In March of last year, Roberts said the State of the Union has “denigrated into a political pep rally. I’m not sure why we are there.”
The chief justice added, “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 the requirements of protocol — has to sit there expressionless, I think, is very troubling.”
Obama last year said the court’s ruling on campaign finance “reversed a century of law to open the floodgates for special interests — including foreign corporations — to spend without limit in our elections.”
Justice Clarence Thomas did not attend last year, saying in February that speeches are “partisan” and that it was “very uncomfortable for a judge to sit there.”
Thomas said at the time, “There's a lot that you don't hear on TV — the catcalls, the whooping and hollering and under-the-breath comments.”
But not all the justices share the concerns expressed by Roberts, Alito and Thomas.
Justice Stephen Breyer, who was nominated by President Clinton, believes it is critical for the members of the court to attend the speech.
“I'll go [to the 2011 State of the Union]; I've gone every year,” Breyer said on “Fox News Sunday” last month.
Justices are not required to attend the State of the Union, though they are all invited every year.
It is not unusual for justices not to attend the event. The late Chief Justice William Rehnquist missed several State of the Union addresses during his tenure.
Justice Antonin Scalia, who regularly skips the speech, said he does not go because the justices “sit there like bumps on a log.”