"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there," Roberts said last March. But the escalated calls for bipartisan civility on Capitol Hill might argue against Roberts sending his regrets."Objectively, he's completely correct," she said about Roberts's assertion. Greenhouse noted that justices have for many years expressed concerns about attending the speech. "As Justice Alito learned, to his dismay, you can't react like an ordinary human being without becoming the news."
The controversy from President Obama's 2010 annual message to Congress came in two parts.
First, some people objected to the substance and setting of the president's direct critique of the court's 5-4 ruling in Citizens United v. FEC, a high-profile decision giving corporations and labor unions the right to spend unlimited amounts of money on political speech.
"For many years the more senior members of the Supreme Court, Justice [John Paul] Stevens before he retired, Justice [Antonin] Scalia, stopped the practice of attending State of the Union addresses because they have become very political events and very awkward for the justices," Alito told a group at the Manhattan Institute in October. "We have to sit there like the proverbial potted plant most of the time. And we're not allowed to applaud--and those of us who are more disciplined refrain from manifesting any emotion or opinion whatsoever."
Indeed, the State of the Union has often produced the odd visual juxtaposition of a House chamber full of lawmakers standing and applauding while the justices remain seated and expressionless.
"I don't go because it has become so partisan," Justice Clarence Thomas said to students in Florida last year just days after the State of the Union speech, which he did not attend. "And it's very uncomfortable for a judge to sit there. There's a lot that you don't hear on TV: the catcalls, the whooping and hollering and under-the-breath comments. One of the consequences is now the court becomes part of the conversation, if you want to call it that, in the speeches. It's just an example of why I don't go."
Scalia was even more stinging in his critique.
"It is a juvenile spectacle, and I resent being called upon to give it dignity, Justice Scalia told the Federalist Society in November. "It's really not appropriate for the justices to be there."
But the court is hardly unanimous on the matter. Justice Stephen Breyer has only missed one State of the Union address since joining the court in 1994. He recently told "FOX News Sunday" host Chris Wallace that he'll be there again Tuesday night.
"Sorry. Prior engagement. Gotta wax the dog."