Why 3 Supreme Court Justices Didn’t Attend the State of the Union

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President Obama Delivers State Of The Union Address At U.S. Capitol © Provided by Time Article President Obama Delivers State Of The Union Address At U.S. Capitol

The wording in the Constitution is simple and straightforward: the President “shall from time to time give to the Congress Information of the State of the Union.” There's nothing in there about the Supreme Court justices and, accordingly, there's nothing simple and straightforward about their attendance.

This year, six justices were in attendance, while three of the most conservative members of the court, Justices Antonin Scalia, Clarence Thomas and Samuel Alito were noticeably absent. In the modern era, custom has held that the justices would show up in their official robes and sit impassively. But in recent years, they've become more resistant to the tradition.

Justice Antonin Scalia’s absence is no surprise. It was the 19th State of the Union in a row that he’s skipped since he considers the speech a “childish spectacle.”

Justice Clarence Thomas’s empty seat was also unsurprising. In 2012, Thomas said he doesn’t attend the annual event because “it has become so partisan and it's very uncomfortable for a judge to sit there.”

Thomas’s remark gets to the heart of why the State of the Union has become a painful event for the justices: the address has become a “political pep rally,” according to Chief Justice John Roberts (who still attends nonetheless), as the justices are forced to sit calmly while the President and members of government around them cheer and crow about the politics of the moment.

For years, attendance among the justices has been declining: From 1965 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, according to a study by Todd Peppers of Roanoke College and Michael Giles of Emory University.

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