"I am shocked," says Georgetown University law Professor Vicki Johnson. "I do find the fact that all nine are unable to come striking."
She was reacting to the fax sent Thursday to the Sergeant at Arms of the U.S. House of Representatives. The two sentences were graciously clear:
"Justices of the Court had planned to attend the State of the Union Address, but travel changes and minor illnesses have intervened. No Justices will be in attendance, but they do thank you for the invitation to be present at the address."
This no-show is a first in recent history since 1986, when President Reagan postponed his State of the Union speech one week because of the January 28 Challenger space shuttle explosion. Although nothing comparable to the Challenger explosion occurred Thursday night, a few of the Justices had compelling reasons to be absent and they let the public in on it.
Justice Ruth Bader Ginsburg was suffering from side effects of her treatment for colon cancer and Justice Stephen G. Breyer was recovering from the flu, says Court spokeswoman Kathy Arberg. Both are Clinton appointees who've made it a point to attend Mr. Clinton's State of the Union speeches since their respective nominations.
Justice Clarence Thomas, according to Court Press Officer Ed Turner, has been in Louisiana and Georgia attending events surrounding the death of his brother Sunday.
One seasoned Supreme Court watcher said that Justice Anthony Kennedy was at home with his wife who is recovering from hip surgery, while Justice David Souter "never stays in town during the recess." Souter did attend last year's address as well as Mr. Clinton's State of the Union speeches in 1994 and 1997.
"That leaves four Justices out of the picture," reflects Richard Lazarus, director of the Supreme Court Institute at Georgetown University. "This suggests the relative importance or unimportance of the event to the Justices. In 1984, (Chief Justice William) Rehnquist didn't show because of an art class."
Lazarus, a constitutional law scholar, suggested the presence of the Justices is a matter of symbolic significance. "It's always striking that the Justices never clap. They are not there to express their approval or disapproval, it's just the symbol of their presence. The cumulative impact of nine of them not showing makes a statement."
This "statement" belies the very active role some Justices have played in the State of the Union address. For example, in 1790, Chief Justice John Jay helped draft President George Washington's State of the Union address; in 1966, Justice Abe Fortas reportedly assisted President Lyndon Johnson in the drafting of his address.
Georgetown law Professor David Cole downplays the noshow episode. "To get Justices Breyer, Souter, Ginsburg and (Antonin) Scalia to agree on anything is an impossibility!" he notes. "I've been watching the court for 15 years. This is not something that's a big deal."
Pressed about the Justices sending even a tacit message, Cole says, "It's important to remember that those Justices who would disagree with Clinton philosophically are the very ones who would make sure the court stays legal and not political. They would attend to make sure that politics does not enter the practice."
There is no requirement that the Justices attend a State of the Union address and it is extremely unlikely that all nine Justices would agree to do anything together of political import. With no official line coming out of the White House from the man who stood to endure the most embarrassment, those two gracious sentences really do represent what lay behind Thursday's no-show.