President Trump will deliver his first official State of the Union address, to a joint session of Congress, on Tuesday evening, January 30. He will do so to satisfy a simply worded requirement contained in Article II, Section 3 of the Constitution:
[The President]…shall from time to time give to the Congress Information on the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient…
George Washington delivered his information and recommendations in person, addressing a joint session of Congress on January 8, 1790. Thomas Jefferson thought that a personal address was too monarchical, and he sent written messages to Congress to be read there by a clerk. Jefferson’s restrained tradition lasted over 100 years, until President Wilson chose to personally address a joint session of Congress in 1913. Since then, most Presidents have followed Wilson most of the time and delivered their messages in person.
President Harding’s address in 1922 was the first to be broadcast on radio. President Truman’s address in 1947 was the first to be broadcast on television. President Johnson’s address in 1965 was the first to be delivered in the evening and aired on prime time television.
With the advent of radio and television, the nature of the President’s address changed fundamentally. It ceased to be an address delivered to Congress and became an address delivered directly to the American people with the Congress included to provide an impressive backdrop. It has become less an occasion for the President to convey information and recommendations to Congress and more of an opportunity for the President to rally popular political support for his program, support that he can then use to pressure Congress to accept the recommendations that he makes to them.
The President’s address has become less a joint session of Congress and more of a televised political pep rally, an increasingly raucous political pep rally. The President’s supporters cheer and stomp and shout their approval, jumping out of their seats at every opportunity to provide yet another standing ovation. The President’s opponents scowl for the cameras, they boo, make catcalls, and shout disparaging remarks. Some boycott the event and, of those that do attend, some adorn themselves in clothing of a color selected to symbolize some point of protest. And both supporters and opponents allot some of the guest seats in the visitor’s balcony to individuals invited to be present to make some point.
This is no place for the Supreme Court. Justices should not attend the State of the Union address. Nothing in the Constitution requires that they attend, and there is no time-honored tradition that calls for them to do so. Of the 35 Presidential addresses delivered between 1913 and 1964, members of the Supreme Court attended only seven. It wasn’t until the Johnson administration and the advent of prime time television coverage that justices began attending in any significant number. Even so, no justices attended President Reagan’s address in 1986 or President Clinton’s in 2000, and some current justices have stopped going altogether.
Many have correctly commented that attendance can put the justices in an awkward position if the President comments on some matter having to do with the Court. This happened when President Obama used part of one address to criticize the Court’s Citizens United decision.
But the most important reason for the justices to stay away is not that they might be put in an awkward position by particular comments that a President might or might not make. The justices should stay away from every State of the Union address because their absence would provide powerful symbolic reinforcement for two things that are very important to our constitutional system of government – the separation of powers and the distinction between law and politics.
If this unfortunate practice could be formally ended, and if the important constitutional reasons for the change were fully explained to the public, then January 30 could be, as they say, a real teachable moment.