In the best of all possible worlds, the Supreme Court would decide as a group whether to attend or not and then unanimously follow through on that decision. Obviously, we don’t see a lot of unanimous decisions on the law from the court, but this question deserves some thought not just for this presidency but as a tradition. Roberts is right that the State of the Union has long since become a political pep rally, something that started long before Obama, and as the one ostensibly non-political and non-partisan branch of government, the captive presence of the Supreme Court among the partisan cheers is quite unseemly.
Here's the problem with this sort of logic - thinking that the Supreme Court is "non-partisan" and "non-political".
I'm not so naive to think that there are at least 3 liberal-leaning members on the SCOTUS, and the modern American Right would be wise to admit that the "activism" they so often decry has been more present in the SCOTUS over recent years, most widely recognized by the disastrous Citizen's United decision - which the above mentioned author tried none-to convincingly to minimize:
Last year, President Obama publicly upbraided the Supreme Court during his State of the Union speech for its Citizens United decision, claiming — incorrectly — that it reversed “a century of law.” In fact, it reversed the McCain-Feingold law that barred corporations from spending money on political advertising within a certain period of time before an election, not the “century of law” that barred corporations from donating to political candidates, which is still very much in place. Justice Samuel Alito knew the difference, which is why he shook his head and mouthed the words “not true,” which so offended Obama that the White House continued its ignorant attack on the Supreme Court for another few days rather than picking up the decision and reading it.
True, corporations have always been allowed to donate a "maximum" amount to political campaigns within a pre-determined time-frame, but that also disappeared with McCain/Feingold. Obama was right to question the decision - which fell clearly across partisan lines - but that only provided ammunition to further the specious and poorly structured claims of the Right that "The Fairness Doctrine" would be reinstated or that the Obama Administration intends on censoring "conservative speech". The only thing that Obama, the Left, and more than a handful of "centrist" and "independents" called for was "disclosure" - the ultimate victim of the Citizen's United case.
If Roberts can’t get unanimity, though, the members of the court who are in town at the appointed time of the SOTU should make an appearance. Having just the liberal judges show for Obama and then presumably just the conservative justices show for a Republican President would be even more unseemly. Having been the target of the White House political team after last year’s SOTU, Alito can certainly be excused. And perhaps the members of the court can at least agree that an explicit attack on one of their decisions by a President in a State of the Union speech in the future will result in the entire court walking out on the rest of the speech, in what would be the only rebuke that the court’s members can deliver in that setting.
And here's where the continuation of the "Right Wing as perpetual victim" meme comes full circle. The only problem is that Alito was not called out by name, as Obama warned against what were the systemic risks of such a decision to allow undisclosed donors and unchecked amounts to be donated to ANY political figure - it was a clearly non-partisan statement that should have given the Right as much pause at it did the Left. And while there were the equivalency arguments put forth by members of the Right - that labor unions ( read: evil, far-left, mafia types ) were granted unlimited donation status because of this decision - the money and power is clearly more tilted to corporations with an unhinged Right Wing directive.
The question is ultimately if the SCOTUS should be present during a State of the Union speech. Naturally, and what should be clear to anyone within the modern American Right, is that it has always been about presenting the prime directives, initiatives, and successes of the administration in power, so having what should be a "non-partisan"/"non-political" judicial body present makes no sense at all, regardless of who occupies the White House. To me, it has always seemed like a contest of who can be the most stone-faced during the speech. Alito failed in that venture last year and was the sole person responsible for injecting himself into the debate over Citizen's United - NOT Barack Obama.