Following Friday’s tariffs ruling and President Donald Trump’s harsh remarks about the justices in the majority, many court watchers (including our own Mark Walsh) speculated about which justices would attend Tuesday’s State of the Union address and what, if anything, the president would say about the Supreme Court.
As it turned out, Trump only briefly addressed Friday’s decision, calling it “unfortunate” and “disappointing” but adding that his administration will use alternative legal statutes to build a tariffs “solution that will be even stronger than before.”
For their part, the justices seemed to treat this year’s address as business as usual. Four current justices attended – Chief Justice John Roberts and Justices Elena Kagan, Brett Kavanaugh, and Amy Coney Barrett – the same four who attended Trump’s address to Congress last year.
Per what NPR described as “[i]ncomplete records” at the Supreme Court curator’s office, justices first attended the State of the Union in 1913, and started attending the event regularly beginning in the 1950s. Invitations are sent to each chamber (including usually to retired justices). By tradition, the justices are seated in one of the front rows of the chamber floor.
According to research by The Hill’s Zach Schonfeld, Roberts is the most consistent attendee at State of the Union addresses (and presidential addresses to joint sessions of Congress) among the current justices. He’s attended every year since he joined the court. Kagan is right behind Roberts, having missed only the COVID-restricted 2021 speech from Biden since 2011.
Justice Clarence Thomas went to President Barack Obama’s first address in 2009, but he has not attended since. Thomas once said that “[t]here’s a lot that you don’t hear on TV,” including “the catcalls, the whooping, hollering and under-the breath comments.”
Justice Samuel Alito has not attended a State of the Union since 2010 (more on that below).
As Thomas noted, the State of the Union can be a raucous affair, with lawmakers applauding and even shouting at various points. Meanwhile, the justices often sit in silence and rise only when they deem it appropriate, since the public may (and often do) draw conclusions from their reactions. (Last night, according to The New York Times, the justices in attendance rose to applaud members of the U.S. men’s hockey team, who made a cameo with their gold medals.)
Criticism of the Supreme Court – or at least its decisions – is nothing new. Presidents Theodore Roosevelt, Warren Harding, Franklin Roosevelt, and Ronald Reagan (not an exhaustive list) did so in past State of the Unions.
More recently, in 2010, Obama criticized what he saw as the implications of its then-recent Citizens United decision. When the TV panned to where six members of the court were seated, Alito was seen shaking his head and appeared to mouth “not true.” The retort got “much of Washington talking,” as we wrote at the time. The court’s Public Information Office, when asked the next day, relayed that “The Justice has no comment.”
Roberts subsequently called Obama’s comment, which had been cheered by Democrats, “very troubling.” “To the extent the State of the Union has degenerated into a political pep rally,” he said at the time, “I’m not sure why we’re there.”
Former Justice Antonin Scalia also opposed attending the State of the Union, saying the justices “sit there like bumps on a log” while members of Congress react. “It is a juvenile spectacle. And I resent being called upon to give it dignity,” he said.