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Wednesday, January 16, 2019

A Good Start?

Quite some time ago I wrote in a blog post that not only was I unsure why members of the Supreme Court attend the State of the Union address, I wasn't greatly sure why anyone else bothered to attend either. Any substance that might accidentally make it into a SOTU address can just as easily be delivered on paper. The spectacle part of the SOTU address might be considered worthwhile if it served as a some powerful device of national unity, like the national anthem or the final episode of M*A*S*H. Given that the actual spectacle has for some time consisted of half the room rising automatically to applaud almost anything and the other half just as automatically remaining stonily silent and seated, it is hard to say it serves that purpose anymore, if it ever did. (I'm sure it can and has on some occasions, but the occasions where it does are more likely to involve special congressional addresses than annual propitiatory rites.)

So I find it hard to consider the possibility that the State of the Union address might be canceled and/or rescheduled this year bad news. This, at least, is one one occasion on which a crisis presents a valuable opportunity, no matter whether the reasons for it are genuine, contrived, or somewhere in between. As Gerard notes below, there is no constitutional need for the full-Kabuki version of the SOTU to take place, and the nation survived just fine in the brief periods--between 1801 and 1913 and during the period between 1913 and 1934, when the SOTU was sometimes delivered in person and sometimes not--when the constitutional requirement was met through a written instrument. It seems to me that rather than reschedule the live address, we should just do without it this year, while insisting on a written report "from time to time," and then see whether the Republic is still standing. (Or, if it is not, whether a written rather than live-and-choreographed SOTU had anything at all to do with the downfall.) Then perhaps we can get to work on extending the idea to Supreme Court confirmation hearings, and rolling back the unfortunate precedents set by Justices Stone, Frankfurter, and the second Harlan.     

Posted by Paul Horwitz on January 16, 2019 at 03:37 PM in Paul Horwitz | Permalink

Comments

I concur. Get rid of the live SOTU and confirmation hearings. Let the president send his written report to Congress. Let Congress send written questions to judicial nominees and let them respond in writing. The world would be a better place.

Posted by: Douglas Levene | Jan 18, 2019 12:57:47 AM

In answer to the first comment, I agree that there are potential benefits, both for a live SOTU address and for live confirmation hearings. This was a rare short and blunt post for me, and the absence of nuance and the consideration of counter-arguments is why I prefer the usual 20,000-word posts. So let me make clear that despite my general view, I do not doubt that these events have potential and perhaps actual benefits. The overarching and countervailing question, for me, is whether, at least as these events are currently practiced, the costs outweigh the benefits; and one piece of the evidence on that question should be how much, if anything, we gained or lost in periods during which no such practices took place.

On the second comment, for what it's worth, I would focus on the language of obeisance. Even if that word may be overstated, one *can* say that the SOTU address as it currently exists involves a combination of partisan-positive and partisan-negative reactions that have become as ritualized as the address itself and all its pomp. Under those circumstances, it's hard for the justices to remain, or be seen as, uninvolved with any of this. Thus, they remain silent as they are criticized for political purposes; or one or more justices visibly disagrees with those criticisms during the address; or the presence or absence of individual justices from the address is seen as so many tea leaves to be sifted for their ostensible (and perhaps sometimes real) political meaning. Although I support the idea that the three branches, co-equal but also equally involved in and committed to the task of governing and sharing in the American political project, should be able to be in the room together with one another and that this sends a useful message, I doubt that the ritual as it currently exists is especially well suited for doing so. On the other hand, and notwithstanding the commenter's language about "a party litigant in many important cases," I wrote in the earlier blog post linked to above that I would be all in favor of reviving the old practice of the justices sharing an annual dinner with the president.

Posted by: Paul Horwitz | Jan 17, 2019 11:36:35 AM

I agree. POTUS is head of one branch of government, not the head of them all. Why should SCOTUS justices attend and pay fawning obeisance to a party litigant in many important cases?

Posted by: anon | Jan 17, 2019 10:03:38 AM

I'm inclined to agree. But just to take the other side: are there some educational benefits? If wars are how Americans learn geography, are state of the union addresses who Americans learn about the parts and personnel of our federal government?

Posted by: brad | Jan 16, 2019 9:33:33 PM

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