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Originally published January 23, 2012 at 5:14 PM | Page modified January 24, 2012 at 11:04 AM

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For the Supreme Court justices, State of the Union can be a trial

Chief Justice John Roberts has called the State of the Union address, which is being delivered Tuesday night, "a political pep rally."

The New York Times

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WASHINGTON —

Chief Justice John Roberts has called the State of the Union address, which is being delivered Tuesday night, "a political pep rally." For Justice Antonin Scalia, it is "a juvenile spectacle."

Justice Clarence Thomas said he could not abide "the catcalls, the whooping and hollering and under-the-breath comments." Justice Samuel Alito called the addresses "very political events" and "very awkward," adding, "We have to sit there like the proverbial potted plant most of the time."

That particular potted plant spoke, sort of, at the 2010 State of Union address, mouthing "not true" after President Obama took a shot at a 6-day-old decision called Citizens United. Obama said the decision had "reversed a century of law" and would "open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

On substance, Alito probably had the better of the exchange: The law the decision partly struck down was enacted in 2002, and the older of the two precedents it reversed was from 1990. And the majority went out of its way to say it was not deciding "whether the government has a compelling interest in preventing foreign individuals or associations from influencing our nation's political process."

Indeed, just two weeks ago, the court summarily affirmed a decision upholding a law that makes it a crime for foreigners to spend money to influence elections.

But the public was not focused on substance that night. Rather, it saw an extraordinary tableau: a president criticizing justices to their faces in harsh and specific terms. The justices' public statements in the aftermath — at law schools and to the Federalist Society and the Manhattan Institute — made you wonder why they turn up for the State of the Union address at all.

And it made two scholars, Todd Peppers of Roanoke College and Micheal Giles of Emory University, undertake heroic work to assemble a mountain of data for a study on trends in this area based on videos, photographs and newspaper articles.

They found that attendance had been falling. From 1965, when President Lyndon Johnson moved the address from the afternoon to the evening, through 1980, the attendance rate was 84 percent. Over the next two decades, the number dropped to 53 percent. Since 2000, the rate has fallen to 32 percent.

In three of those years, only Justice Stephen Breyer attended. In 2000, when Breyer stayed home with the flu, no justice was present.

Roberts has a perfect attendance record so far. Scalia, by contrast, went to seven of the first nine addresses after joining the court, through 1997. He has not gone since.

That general pattern is not unusual. Peppers and Giles found that the likelihood of attendance declined with age and length of service.

Attendance in the early years of a justice's service may be explained in part by loyalty and gratitude. As Scalia put it, it is easier to stay home "when the president giving the State of the Union is not the man who appointed you."

On that logic, it seems likely that Justices Sonia Sotomayor and Elena Kagan will be on hand Tuesday night.

The study found no other partisan correlations: Justices are not more likely to attend addresses given by presidents of the same political party as the one who appointed them.

"I went into this project assuming that ideology was going to explain these patterns," Peppers said. "That doesn't appear to be the case."

Attendance can be stressful. The justices say they must make careful and largely coordinated choices about what statements from the president are uncontroversial enough to warrant applause.

That is hard, Alito said, because presidents "will fake you out." They may start with something bland, he said, like, " 'Isn't this the greatest country in the world?' "

"So you get up and you start to clap," he said, "and the president will say, 'because we are conducting a surge in Iraq' or 'because we are going to enact health-care reform' and then you immediately have to stop."

It was not always so. In 1964, Johnson said, "Let this session of Congress be known as the session which did more for civil rights than the last hundred sessions combined." Five members of the Supreme Court, including Chief Justice Earl Warren, applauded.

Last year, after the Citizens United exchange, Alito did not attend the address, and neither did Scalia or Thomas. But the turnout was strong by recent standards. The court's four more liberal members — Justices Ruth Bader Ginsburg, Breyer, Sotomayor and Kagan — went, as did Roberts and Justice Anthony Kennedy.

The chief justice's presence was something of a surprise. A couple of months after Alito's mouthed dissent, the chief justice told a law-school audience that attending State of the Union addresses was problematic and unpleasant.

"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 to the requirements of protocol, has to sit there expressionless, I think, is very troubling," Roberts said.

But Giles said the justices were wise to attend.

"This is a very visual age," he said. "I do think that it's important that they show up. It shows an image that is beneficial to the court."

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