Justice Ruth Bader Ginsburg was notably absent from President Donald Trump’s first address to a joint session of Congress, along with her colleagues Justice Samuel Alito and Justice Clarence Thomas.
While Trump’s address was not technically a State of the Union — those are given by a president to look back on accomplishments over the last year —it served the same purpose of gathering Congress, members of the president’s Cabinet and Supreme Court Justices to hear the president speak about his plans. In recent years, some justices have bucked the trend of attending presidential addresses.
Alito last attended in 2010 and Thomas stopped going during the Obama years. But Ginsburg’s absence was a first, having attended during Obama’s tenure. Ginsburg, who spoke out against the prospect of a Trump presidency during the campaign, later apologizing for stepping into politics. She hasn’t directly criticized him since he took office, but said last week the country was “not experiencing the best of times.”
The late Justice Antonin Scalia stopped attending presidential addresses in 1998, but his widow Maureen Scalia attended Tuesday’s event as a guest of First Lady Melania Trump.
The U.S. Constitution calls for the president to “from time to time give to the Congress Information of the State of the Union,” but nowhere stipulates Supreme Court justices must go. Their regular attendance is actually fairly new: According to the Boston Globe, justices only began regularly appearing at the addresses in the late 1950s — until that point, according to researchers Todd Peppers and Micheal Giles, only a handful had ever attended the regular address.
What wasn’t new was the potential for justices’ attendance to be politically fraught: During Lyndon B. Johnson’s 1965 speech, the Globe reported, members of the court publicly applauded some of his talking points, despite its televised nature. Since then, justices have been more reserved in their appearances, the newspaper reported, avoiding the applause and standing ovations that have often characterized the response of the chamber (or at least the president’s half) during the annual speech.
The most recent example of the court’s attendance sparking uproar, however, surfaced in 2010, when former president Barack Obama explicitly criticized the court’s ruling in Citizens United v. FEC as six justices sat in the audience, saying it had “opened the floodgates” for unscrupulous influence by relaxing campaign finance regulations.
“Not true,” Alito mouthed in a response caught by the live cameras as he shook his head, prompting debate over the justice’s conduct.
Chief Justice John Roberts, who was present, criticized the president’s remarks about the case the following March at the University of Alabama Law School. He suggested at the time that justices should no longer attend what “has degenerated into a political pep rally,” according to NPR, though he has appeared at speeches since.
Thomas, who had chosen to skip the address that year, told students that February that he no longer attended the address “because it has become so partisan and it ’s very uncomfortable for a judge to sit there,” he said in that conversation, according to the New York Times.
“There’s a lot that you don’t hear on TV — the catcalls, the whooping and hollering and under-the-breath comments,” he added then. “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.”
Thomas had attended the address on and off during former president George W. Bush’s terms, skipping several, though he attended in 2006. He also attended former president Barack Obama’s first presidential address to Congress in 2009, according to Politico.
Alito, for his part, has not attended a State of the Union since, saying justices “sit there like potted plants” in an interview with the American Spectator in 2014.
Before his death in February 2016, Justice Antonin Scalia had also declined to attend any presidential address to Congress since 1997. In an appearance in 2013, Scalia said the speech “has turned into a childish spectacle, and I don't think that I want to be there to lend dignity to it.”