Should Justice Alito Have Attended the SOTU?

Justice Alito (and congratulations are due to him), fresh from having taken his oath(s) as the newest Justice on the Supreme Court, attended the State of the Union address last night, as did a number of other Justices (I haven't seen a number yet).  Should he have?  In one sense, the answer to the question is easy:  No -- because no person in his or her right mind (and my sympathies to a friend of mine who is obliged to attend that event) would attend the State of the Union address, that long and queasy evening of dull political theater.  This does not apply to Alito alone, of course.

Leaving that aside, I still wrestle with that question a little.  On the one hand, Alito's attendance represents a visible symbol of the Court as a continuing body, one that (like the Senate and less like the House or the presidency) has an ongoing existence despite changes in membership.  So his appearance symbolizes the healthy nature of our continuing branches of government.  And one might speak up more generally for the attendance of the Justices at the SOTU.  Some Justices don't attend, sometimes or always, out of principle or for other reasons; a warm anecdote told to demonstrate Chief Justice Rehnquist's low-key good nature after his death was that he skipped the speech one year because it conflicted with an art class he was taking, if I remember correctly.  But the Court is a coequal institution and its presence at the SOTU might be taken both as reminding the other branches of that fact and as signaling the government's stability and that all the branches of the federal government ultimately share some sense of common cause.  That is not the only reason they attend, I'm sure; they are denizens of Washington, after all, hardly immune from its ways, and I don't doubt that one reason at least some of the Justices attend is that they are as much a part of the starf***ing tendencies of Washington political life as any pimply legislative assistant or lowly first-term House member.  Nevertheless, there are plausible reasons to support the idea of the attendance of the Court's members at the SOTU.

On the other hand, Justice Alito is a very fresh member of the Court indeed, and it is difficult this early to distinguish between Alito as the Court's man and as the President's man.  He must have known that if he attended, a picture of the President shaking his hand would appear prominently on TV and on the front pages of the nation's newspapers, a photo sure to redound to the President's political advantage or, conversely, to be dredged up to the Court's disadvantage every time Alito upholds the executive branch in questions of presidential power through 2008.  He may have attended more or less precisely for this reason, figuring that he owes the President this much as a debt of personal gratitude.  Certainly, in a non-conspiratorial sense, I feel safe in assuming that at least a couple of savvy White House aides made sure to urge him to attend.  Gratitude is a fine and human thing, but in politics it is usually a fool's game.  Alito may owe the President a personal debt, but in an institutional sense he owes him precisely zip, and he now is an institutional man, who with his colleagues is an institutional equal to the President.  He might well have reflected that his attendance could be at least marginally harmful to the Court as an institution, allowing him to be portrayed as the creature of this President, and that concern might have outweighed any personal gratitude he felt.  For much the same reason, and some Justices have so argued from time to time, there is something to be said for the Justices refusing as a group to attend at all, so that they not be made part of the mechanism of what is a supremely political and partisan annual event.  As I said, they are Washingtonians and loath to refuse invitations to plum events in the capital -- but perhaps they should.

I don't mean to render a strong opinion on this, only to reflect on it a little.  I suppose if I had to reach a conclusion, it would be that I rather wish Alito had decided to stay home and watch Gilmore Girls instead, rather than offer up the President the gift, deliberately accepted by Mr. Bush, of free and easy publicity -- but that there was nothing at all improper in his choosing to attend.  I rather feel the same way about the rest of the Court as well, but continuing institution or no, political reality compels me to say that the question was more pressing last night in the case of our newest Justice.

UPDATE: For a nice treatment of Alito's attendance, see Dana Milbank's piece for the Post here.  (Hat tip to Howard, as always; we should just write a macro for that phrase.)