Will the Supreme Court Justices Return to the State of the Union?

WASHINGTON - JANUARY 27: Members of the U.S. Supreme Court listen to U.S. President Barack Obama speak to both houses of Congress during his first State of the Union address at the U.S. Capitol on January 27, 2010 in Washington, DC. Pictured are: (L-R, Front) Chief Justice John Roberts and Justices Anthony Kennedy, Ruth Bader Ginsburg and Stephen Breyer; (L-R, Back) Treasury Secretary Timothy Geithner and Justices Samuel Alito and Sonia Sotomayor. Since taking office a little over a year ago, Obama's approval ratings have dropped significantly according to recent polls. (Photo by Alex Wong/Getty Images)
Alex Wong/Getty Images
Supreme Court justices listen to President Obama's State of the Union speech last year.
Alex Wong/Getty Images

The buzz at the Supreme Court today was not the decisions (mostly technical--one interesting, more on that below) but whether any of the justices will attend President Obama's State of the Union address tomorrow night. We now know at least one justice won't attend: Justice Samuel Alito, who was at the center of the high drama in last year's address and has a good excuse not to go this year.

No, he's not mad. He's out of town.

As we all surely recall, the president's dust-up with Alito last year started when Mr. Obama took the unusual step of lashing out at the Court -- with six of the justices sitting right in front of him -- for a recent decision on campaign finance reform. When Mr. Obama said the ruling would open the floodgates for foreign corporations to spend unlimited money on elections, the Democrats in the chamber all jumped up and yelled and clapped and cheered--like all they were in the Duke student section at a Blue Devils game or something. That seemed like a bit of an overreaction, but they were pretty excited about campaign finance reform, I guess.

Anyway, with all the whooping and hollering going on, the Justices just sat there, silently and obviously verrrry uncomfortably. And Justice Alito was caught on camera shaking his head and mouthing the words "not true." (watch at left)

That was Big News, and the White House kept the story going, with a press release the next day that Justice Alito was wrong, and President Obama was right, na-na-na-na-na. And that, shall we say, did not sit very well with members of the Court.

And ever since, we've all wondered whether any of them would return to another State of the Union. Ever again.

So we can take Alito off the guest list. But don't go all "Justice Alito is still mad as hell over what happened last year, and he's not going to take it anymore, so he invented an excuse to go up to Baltimore for the night." No. Negative. Alito had a long-standing teaching engagement in Hawaii.

That leaves eight others. I'd say we can also scratch off Justices Antonin Scalia and Clarence Thomas from the "YES" list. Scalia told me in an interview at the Federalist Society dinner last fall not to expect him. "It is a juvenile spectacle, and I resent being called upon to give it dignity," he said. "It's really not appropriate for the justices to be there." So that sounds to me like a big N-O. And Thomas doesn't go for similar reasons.

Now we're down to six. Moderate conservative Justice Anthony Kennedy seems to like all that pomp and circumstance, but he didn't appreciate the president's shot last year (he wrote the campaign finance decision). So will he stay away? And then what about the four liberals: Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan? Maybe they'd like to attend, since it will be Kagan's first chance as a new justice, and she can wear that black robe and look inscrutable.

John Roberts

And this is where it gets really interesting. If Kennedy stays home and the four liberals decide to go, then what does Chief Justice John Roberts do? He so does not *get* why justices go to the State of the Union in the first place, and he's criticized the event for having degenerated into a "political pep rally."

"I'm not sure why we're there," said Roberts, speaking at the famed University of Alabama Law School last March.

But as chief, he may decide he has to bite the bullet and go again this year. He has to consider the reputation of the Court and how it is perceived, and if four liberal justices go--and no conservatives---that could be interpreted as some kind of political statement. It would be especially stark this year, since a bunch of Republican and Democrat lawmakers have decided to buck tradition and sit together in peaceful harmony.

So if Ginsburg and Breyer and Sotomayor and Kagan really really want to go this year, and Roberts is worried about some stupid narrative (and believe me, there inevitably will be some stupid narrative... i.e., "Court Divided over SOTU; Justices Gripped by Politics, as Lawmakers Sing Kumbaya"), he may well have to do the chiefly thing and show up at the political pep rally one more time. We will know soon enough.

Oh, and decisions today. In the only one of note, the Court refused to scale back anti-retaliation lawsuits, siding with a man who complained he was fired after his fiancée filed a sex discrimination lawsuit against their employer. The unanimous decision, by Justice Scalia, reversed a Cincinnati-based federal appeals court decision for the company and reinstated the man's civil rights lawsuit. Justice Scalia said that if he man were indeed fired because of his fiancée's lawsuit, then he had been the victim of unlawful retaliation.

More Coverage of the State of the Union:

Obama Speech Will Set Tone for 2012 Run
Obama Foreshadowed State of the Union Theme Last Month in N.C. Speech
Video: CBS News Panel Previews the State of the Union

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    Jan Crawford is CBS News Chief Political and Legal Correspondent. She is from "Crossroads," Alabama.