When the nine Justices go out in public together to a ceremonial occasion, even celebrity-studded official Washington stops to take notice.

Sometimes, as with Monday’s presidential inauguration, that is because it is so unusual to see all nine together anywhere other than in the Supreme Court Chamber. At other times, like next month’s scheduled State of the Union address or the annual Red Mass last September, the focus may instead be on which of the nine show up.

There is little question that the Justices are part of the most mysterious, least visible branch of the federal government. The question of how different ceremonial occasions fit with the relative seclusion and avoidance of politics by the Justices is a subject of some debate among those who follow the Court, and even among the Justices themselves.

It is the rare occasion when the most controversial thing about a public appearance by all nine Justices – as at the inauguration — is the origin of Justice Scalia’s hat. Chief Justice Roberts had the official duty of swearing in President Obama, and Justice Sotomayor administered the oath to Vice President Biden. But the other seven Justices were arrayed at the front of the platform, too, and it was Justice Scalia’s hat that lit up the social media world. He wore a cap that was modeled after one worn by Thomas More, the famous British barrister, philosopher, adviser to King Henry VIII before he was beheaded in 1535, and saint of the Catholic Church. The cap was a gift to Justice Scalia from the St. Thomas More Society in Richmond, Virginia.

Indeed, it is rare for the presence of the Justices to cause anything other than curiosity at an inauguration. Four years ago, Chief Justice Roberts was briefly in the spotlight when he and President Obama could not synchronize the recitation of the presidential oath, necessitating a do-over at the White House the next day.

But if inaugural appearances are relatively calm for the Justices, the ceremonial occasions of the State of the Union speech and the Red Mass are more controversial.

The President’s State of the Union address is a speech to a joint session of Congress, as well as the diplomatic corps and members of the Supreme Court. The speech has its roots in Article II, Section 3 of the Constitution, which requires the president to inform Congress “from time to time” about the “State of the Union.” Throughout the nineteenth century, the message was in writing, but for most of the twentieth century, presidents have appeared before Congress. Whether the Justices, as members of the third branch, should be present is a subject of at least contemporary debate.

The problem for the Court is the conflict between the desire to be present as a show of unity when the country’s leader reports on the state of nation and – on the other hand – not wanting to appear partisan or supportive of particular presidential policy or political choices. The result is an awkward dynamic in which Justices remain seated, silent and expressionless while the partisan supporters of the president jump from their seats frequently to interrupt the speaker with standing ovations. Indeed, to the misfortune of the Justices, the number of interruptions for applause has become something of an informal measure of the success of a president’s State of the Union Address.

Some, like Justices Scalia and Thomas, appear to have stopped attending the speech entirely. Nearly three years ago, Justice Alito found himself in the center of a controversy when President Obama in his speech criticized the Court’s (then) recently issued decision in Citizens United v. Federal Election Commission, and Justice Alito was captured on live television mouthing the words “not true” in response to the president’s statement that the Court had “reversed a century of law” to permit corporate free speech and spending in federal elections.  He has not attended since then.

A few months after the Alito incident, in March 2010, Chief Justice John Roberts entered the fray in remarks at the University of Alabama, where he told his audience that he was troubled that the State of the Union speech has “degenerated to a political pep rally,” and he was “not sure why we’re there.”  He then added that “[t]he image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court — according the requirements of protocol — has to sit there expressionless . . . is very troubling.” Robert Gibbs, the White House Press Secretary at the time, pushed back at Roberts, saying that what was “troubling” was the prospect of Citizens United opening “the floodgates for corporations and special interests” to influence elections.

Despite the exchange and the doubts expressed, the Chief Justice returned to the State of the Union speech in both 2011, when he was joined by five colleagues, and 2012, when he was joined by four colleagues. The Justice head count for 2013 will no doubt be a subject of discussion and debate. And the nationally televised image will remain unchanged:  the Justices, awkwardly, remaining seated and silent while Democrats all around them shower enthusiastic applause on President Obama.

The annual Red Mass presents another set of questions and conflicts. Although the time and tradition of the Red Mass have shifted somewhat over the years, in its current form it is a Catholic Mass held on the Sunday immediately before the opening of the new Supreme Court Term, which by federal law occurs on the first Monday in October.

In broad historical perspective, the Red Mass dates from the Middle Ages in England, when clergy offered prayers for justice, and judges and lawyers attended to bless the work of the courts. In Washington, most accounts trace the practice to 1953, when a relatively new organization to promote spirituality among Catholic professionals, the John Carroll Society, organized the first Red Mass for the Supreme Court.

Why is the practice controversial, especially when it is part of a 750-year tradition? England does not have the constitutional tradition of separation of church and state that the Supreme Court has said is embodied in the First Amendment. So there is criticism in some circles of the idea that the Supreme Court should receive the prayers of Catholic clergy every year at Washington’s Cathedral of St. Matthew the Apostle.

The controversy is fueled by the fact that Catholic leaders have sometimes used the occasion to lecture against abortion and for the rights of the unborn. Although the occasion is described as one to bring Justices, judges, lawyers, and law students together in the common goal of praying for justice, Justice Ginsburg has reportedly chosen not to attend because of the messages against abortion rights. Decades ago Justice William Brennan’s wife, Marjorie, angered by a service critical of the Court’s school prayer decisions, told the Bishop at the Red Mass in 1964 that he was unfit for them to kiss his ring.

Six Justices attended the most recent Red Mass on September 30, 2012.  They were a mix of four of the six Catholics on the Court – Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas – and two of the three Jews on the Court – Justices Breyer and Kagan. According to news accounts, Archbishop Timothy Broglio, who serves as the archbishop for the military services, urged those present to “strive to be instruments of a new evangelization.”

As with other ceremonial occasions, the question of when to show up and when to draw the line can be a difficult and delicate choice for the Justices.

Posted in Featured, SCOTUS for law students

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): The Justices at ceremonial events, SCOTUSblog (Jan. 23, 2013, 10:25 AM), http://www.scotusblog.com/2013/01/scotus-for-law-students-sponsored-by-bloomberg-law-the-justices-at-ceremonial-events/