The SOTU Non-Showdown of 2000:

In the wake of the Obama-Alito showdown, I am reminded of an event that passed a decade ago that was little remarked on at the time.  In fact, I just learned about it recently, having read it in a book.  Few remember that NO Justices attended President Clinton’s State of the Union address in 2000.  What was asserted in the book (I can’t recall where I read it) was that the Justices in fact engaged in a group boycott of the SOTU in response to Clinton lying under oath and his contempt for the integrity of the judicial system.

I’ve not seen any direct confirmation that there was a deliberate boycott, but it seems plausible.  A few reports from the time note the absence of the Justices, and that some of them had travel conflicts (it is not clear whether those were avoidable or convenient–I recall William F. Buckley’s response to an undesired invite, “I’m sorry, but I cannot attend–I will be in Australia on that date, if necessary.”).  Other Justices had no explanation for their absence.

For what its worth, I tend to agree with those who say that the Justices probably shouldn’t attend the SOTU anyway.  My impression is that the symbolism of the SOTU has actually been turned on its head over time.  Initially, the SOTU seems to have been seen as a summoning by the Congress to the President to appear and make himself accountable–thus it was in some sense an assertion of Congressional supremacy over the President.  Which might explain why Presidents historically refused to appear in person.  Nowadays I think it is perceived the other way around–Congress is a stage for the President to tell Congress what he wants them to do.  In that sense it is much more like an assertion of the supremacy of the President over Congress.  When the Justices show up, they are essentially putting themselves in the position of being props in this presidential show, which I think is demeaning to the judiciary’s status as a co-equal branch.

Having said that, I think it is absolutely the right of the Executive Branch to criticize the Judiciary.  The Judiciary claims the right to criticize the Executive Branch all the time when it overturns criminal convictions or administrative rulings.  And I don’t think it would be out of line at all for a President to say that he thinks that Roe v. Wade should be overturned, for example, or to criticize a Court’s ruling in a terrorism case.  Obviously there are issues of tone and style, and perhaps some think that President Obama could have stated the matter more respectfully, but that’s an issue of decorum in my view, not a serious issue of comity.

So, for example, if the Justices did boycott the 2000 SOTU to send a message to Clinton and other judges, then I say first, “Bravo!” and second, maybe that sort of subtle but symbolic message is the most powerful message of all.