Article II of the Constitution provides that the president “shall from time to time give to the Congress Information of the State of the Union.” House Speaker Paul Ryan, a Republican of Wisconsin, has invited President Donald Trump to deliver his first official “State of the Union” address on January 30, 2018.
Just as the Constitution does not require a speech by the president (some have sent written messages), the justices of the Supreme Court do not have to show up for the event. There isn’t a time-honored, consistent norm of judicial attendance in American history. As Chief Justice John Roberts said in a 2010 interview, whether to attend is “up to each individual member of the Court.” Why a justice might make that decision – and why a majority of justices may have chosen to go to the past six speeches – is the subject of a recent article published by the Justice System Journal, “Keeping up Appearances: Non-Policy Court Responses to Public Opinion.”
Ryan Williams and Jacob Smith, two political scientists at the University of North Carolina, report empirical evidence suggesting that “the Court thinks attending the State of the Union can help to preserve its long-term legitimacy.”
These findings seem to substantiate the “strategic” model of judicial behavior, which presents the justices “as strategic actors who attempt to transform their policy preferences into law while operating within a system of constraints,” including the court’s institutional support from the president, Congress and the public. As Justice Felix Frankfurter famously noted in his dissent in Baker v. Carr (cited by the authors), “the Court’s authority—possessed of neither purse nor sword—ultimately rests on sustained public confidence in its moral sanction.”
Williams and Smith propose that the “strategic behavior” of the justices is not limited to legal work, such as their written opinions, but also includes their selective engagement in non-legal settings, such as the State of the Union.
Within the parameters of the strategic model, the theory of positivity bias suggests that the public’s “exposure to legitimizing symbols of law and courts” reinforces the perception that courts are apolitical and the public’s “underlying support for the Supreme Court’s legitimacy.” At the State of the Union – “the only regularly scheduled political event in which members of the Supreme Court appear on television” – “the appearance of the justices in their judicial robes, their conspicuous seating apart from members of Congress, and their refusal to participate in the standing ovations, clapping, and cheering that are hallmarks of the address expose the public to legitimizing symbols of the judiciary.”
Using data from 1974 through 2014, Williams and Smith analyzed the attendance of the individual justices in light of a “public opinion” variable. They created this variable by estimating the percentage of people expressing confidence in the Supreme Court one week before the State of the Union through survey questions reported to Gallup and other survey organizations. The authors also included other control variables “related to personal considerations facing the justices,” such as the number of confirmation votes a justice received and the length of tenure of a justice.
Across four logistic regression models, Williams and Smith found that “as the percentage of respondents who expressed a great deal or quite a lot of confidence in the Supreme Court increases, a justice is less likely to attend the State of the Union address.”
Williams and Smith also found an important countervailing measure: Justices are less likely to attend the State of the Union as the House of Representatives, the setting for the address, becomes more polarized. This finding also follows the expectations of the theory of positivity bias because justices do not want to be associated with partisanship, so they avoid polarized environments. Justice Clarence Thomas, who has attended less than a third of his possible State of the Union addresses, has said that he stopped attending because the speeches have “become so partisan and it’s very uncomfortable for a judge to sit there.”
Chief Justice John Roberts has called the State of the Union “a political pep rally.” In contrast to Thomas, though, Roberts maintains a perfect attendance record. Williams and Smith found evidence that chief justices – who “are particularly concerned with public opinion in order to protect the legitimacy of the Court,” according to earlier research — are more likely than associate justices to attend the State of the Union.
Another primary model for explaining judicial action isn’t supported by Williams and Smith’s findings. The “attitudinal” model assumes that justices are not constrained by a need to maintain public legitimacy because “the institutional structure of the American political system affords the Court sufficient insulation from the constraining influences of Congress and the president.” Under this model, justices make non-legal decisions (like attending speeches) for personal, ideological reasons rather than out of general concern about the court’s perceived standing. As a result, justices would be expected to attend speeches given by presidents with whom they agree and to avoid speeches by other presidents. The authors did not find a statistically significant relationship for this effect.
When asked whether the results of the study might be used after January 30, if a majority of the court attends Trump’s address, to infer that the justices are concerned about their own perceived legitimacy, Williams called that “a fair narrative.” “We see as an empirical fact that a majority of justices attend the State of the Union during times in which public confidence is lower,” he continued.
Williams cautioned against drawing hasty inferences from his and Smith’s research. For one thing, the authors did not ask any of the justices about their reasons for attending. “We don’t have a direct connection to the minds of the justices; we can’t provide irrefutable evidence that they attend to try to shore up their legitimacy,” he said.
The authors did provide a quotation from Justice Stephen Breyer, who has attended 95 percent of the State of the Union addresses given during his tenure on the court, in which he explains his plans to attend the 2011 speech in a way that accords with the theory of positivity bias:
I think it’s very, very, very important … for us to show up at that State of the Union, because people today, as you know, are more and more visual. I’d like them to read, but they are visual. And what they see in front of them in that State of the Union is the federal government, every part—the president, the Congress, the cabinet, the military, and I would them to see the judges, too, because federal judges are also part of that government.”
Williams also clarified that he and Smith studied the justices’ perception that attending the speech may increase the public’s sense of their legitimacy. They did not address whether the justices’ attendance in fact does have that effect.
Finally, Williams questioned the predictive powers of the findings given that the current president “has been a vocal critic of rulings on his immigration executive order, has called Ruth Bader Ginsburg ‘an incompetent judge,’ and has made other attacks on the judicial system.”
“Ultimately, our results suggest competing considerations for justices, particularly for an address given in a hyper-partisan environment and by an atypical president,” Williams suggested. “Justices can either attempt to mitigate low public confidence in the institution by participating in a high-profile event and emphasizing the Court’s uniqueness, or they can avoid the address for partisan, ideological, or strategic reasons.”
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