Tonight, President Donald Trump will deliver his first State of the Union Address. The address is rooted in Article II, Section 3 of the Constitution, which states that the president, “shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such measures as he shall judge necessary and expedient.” The president customarily offers an assessment of “the state of the union,” followed by a list of legislative goals for the year.

Chief Justice John G. Roberts Jr., Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg, Supreme Court Justice Stephen Breyer and Associate Justice Elena Kagan attendedthe 2012 State of the Union address.

It’s tradition for the justices of the Supreme Court to sit directly in front of the president during the event. Not all the justices attend, however. Justice Ginsburg will not be attending tonight. Instead, she’ll be at Roger Williams University’s law school giving her own “fireside chat.”

There is no love lost between the president and Justice Ginsburg, of course. During the 2016 campaign, Ginsburg called Trump a “faker,” and Trump countered that her “mind is shot.”

Justice Ginsburg attended all of President Obama’s State of the Union speeches. In 2013 and 2015, she appeared to be dozing off during the events. Ginsburg explained that she “wasn’t 100% sober,” since he had some “excellent California wine” supplied by Justice Kennedy at dinner beforehand. Justice Ginsburg did not attend President Trump’s February 2017 joint address in Congress either, but neither did Justices Samuel Alito or Clarence Thomas. Neither Alito nor Thomas are expected to be in attendance at tonight’s event.

Although partisanship can play a role in the justices’ attendance at the State of the Union, it seems that some justices simply don’t like the event. Justice Antonin Scalia referred to it as a “cheerleading session,” a “childish spectacle.” “You just sit there, looking stupid,” he complained. Scalia’s last attendance at a State of the Union was in 1997. Justice Thomas stated it is “very uncomfortable for a judge to sit there,” and Justice Alito explained in 2010 that he felt “like the proverbial potted plant” while in attendance.

The members of the Court are expected to sit quietly in the midst of a room full of exuberantly partisan politicians. On occasion, however, they have broken from role. In 2010, when he last attended the event, Justice Alito famously shook his head while mouthing the words “not true” when President Obama criticized the Court’s recent Citizens United campaign-finance decision.

Just four of the justices  will be in attendance tonight:  Chief Justice John Roberts and Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch.


This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.


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