Justice Ruth Bader Ginsburg will not attend President Donald Trump’s State of the Union address Tuesday, given a prior commitment at Roger Williams University School of Law in Providence, R.I.
Though the configuration of justices who attend the event has fluctuated over the years, one variable remains constant — Ginsburg has never attended an address to Congress given by a Republican president.
The Daily Caller News Foundation reviewed CSPAN’s archive of past State of the Union addresses and confirmed she was not present for any of the nine speeches former President George W. Bush gave to Congress.
TheDCNF’s review found that only two justices have not attended a congressional address given by a president of the opposite party. One is Ginsburg and the other is Justice Neil Gorsuch, who has not yet served under a Democratic president. Justices Sonia Sotomayor and Elena Kagan attended Trump’s first speech to Congress on Feb. 28, 2017.
The Court’s involvement with the State of the Union seems somewhat incongruous, as the event usually serves partisan interests and the justices themselves are ostensibly apolitical. Chief Justice John Roberts acknowledged as much in 2010 during remarks at the University of Alabama.
“It does cause me to think whether or not it makes sense for us to be there,” he said. “To the extent the State of the Union has degenerated into a political pep rally, I’m not sure why we’re there.”
In that vein, Ginsburg’s absence in the early years of the Bush administration was not unusual. Justice Stephen Breyer was the only member of the Court to attend Bush’s addresses in 2001, 2003, 2004, and 2005. During that period, Breyer was the junior justice, or the justice who ranked last in the order of seniority. As such, he is a natural candidate to represent the full Court at an event some see as a tedious obligation, especially if the Court’s decisions have prompted public indignation. Scattered boos greeted Breyer’s entrance to the House chamber on Feb. 27, 2001, just months after the Bush v. Gore ruling.
Breyer has consistently attended State of the Union addresses. The justice believes that the Court’s presence at a major television event is important in a world dominated by imagery.
“I think it’s important that when people say ‘there is the government,’ they be able to see the judges, too, because the judges are here — our court and others — to try to make certain that groups who are unpopular are protected when [the Constitution] calls for their protection,” he told Larry King in 2010.
Still, Ginsburg was not among the five justices who attended Bush’s Sept. 20, 2001 speech to Congress on the 9/11 terror attacks, and remained absent from speeches during Bush’s second term, when attendance among the justices increased to include Roberts, Breyer and Justices Anthony Kennedy and Samuel Alito.
Alito has not attended a State of the Union since 2010, where he drew criticism for quietly rebutting former President Barack Obama’s criticism of the Court’s Citizens United v. FEC ruling. Though Justice Clarence Thomas was present for Bush’s 2006 address and former President Barack Obama’s first speech to Congress in 2009, he generally does not attend political functions.
Ginsburg was also present for Obama’s first congressional address. She greeted him with a hug as he approached the dais, as she would in subsequent years.
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