Huffpost Politics

State Of The Union Address 2011: Supreme Court Justices Won't All Attend

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SUPREME COURT JUSTICES STATE OF THE UNION

WASHINGTON — Chief Justice John Roberts will lead a contingent of six Supreme Court justices at President Barack Obama's State of the Union speech, quieting speculation that only Democratic appointees to the court would attend.

Roberts had objected to the partisan atmosphere at last year's address, particularly after Obama offered rare criticism of the court during his speech.

Court spokeswoman Kathy Arberg confirmed that six justices would be present at Tuesday's speech, although she would not say which ones. But as three of the nine justices had previously all but ruled themselves out, it seemed a safe assumption that Roberts and Justice Anthony Kennedy would join their four colleagues who were appointed by Democratic presidents.

Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor also are expected to attend. For Kagan, it would be her first speech since Obama nominated her last year. Sotomayor was Obama's first high court pick.

Justice Samuel Alito, who mouthed the words "not true" in response to Obama's criticism, is spending this week as "jurist in residence" at the University of Hawaii law school. Justice Antonin Scalia, at the Capitol Monday to speak to the Tea Party Caucus, has not attended a State of the Union speech at least since the mid-1990s. Justice Clarence Thomas said last year that he doesn't go because "it has become so partisan," although he attended Obama's first speech to Congress in February 2009.

Last year, six justices in their black robes sat silently while Obama leveled criticism at the court – and specifically its conservative majority – for the decision it had announced just days earlier freeing corporations and labor unions to spend freely in elections for Congress and president. Roberts, Alito and Kennedy, Republican appointees, were there, along with Breyer, Ginsburg and Sotomayor, named to the court by Democrats.

Roberts addressed the issue in a speech in Alabama in March. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," he said.

Roberts said anyone is free to criticize the court and that some have an obligation to do so because of their positions.

"So I have no problems with that," he said. "On the other hand, there is the issue of the setting, the circumstances and the decorum. 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."

The shootings in Tucson this month that killed six people and left Rep. Gabrielle Giffords wounded have led some lawmakers to abandon the tradition of sitting by political party, creating an expectation that the atmosphere surrounding this year's speech might be less partisan.

Roberts has been to every State of the Union since he joined the court more than five years ago. Kennedy has attended the last four speeches.

Breyer appears to have missed only one State of the Union in his 16 years on the court, and has been the only justice present on at least four occasions. No one from the court attended when Breyer was ill in 2000.