Last year, after Obama spoke about the disastrous Citizens United Supreme Court ruling, saying, "With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests - including foreign corporations - to spend without limit in our elections," Justice Alito was caught on camera shaking his head and saying "Not true." Alito came in for considerable flak from the press for this lapse in political manners.
This year, his spokesperson tells us he will not be present, having a previous commitment that will keep him in Hawaii. (Searching for Obama's birth certificate, no doubt.)
Justices Scalia and Thomas are also going to be no-shows tonight. Thomas says the State of the Union speech "has become so partisan."
And Scalia? He hasn't "gone to the State of the Union in the last 10 years... I'm not starting tomorrow night, either." On another occasion, Scalia said, "It is a juvenile spectacle, and I resent being called upon to give it dignity."
It appears Chief Justice Roberts, who calls the speech "a political pep rally," will attend, although he is quoted as saying, "The image of having the members of one branch of government standing up, literally surrounding the Supreme Court, cheering and hollering while the court, according to the requirements of protocol, has to sit there expressionless, I think is very troubling," Roberts said. "And it does cause you to think whether or not it makes sense for us to be there."
Garrett Epps writes in The Atlantic, "Being a judge involves etiquette as well as integrity. Both points are covered in Canon Two of the Code of Conduct for Federal Judges: 'A judge should avoid impropriety and the appearance of impropriety in all activities.' A judge may know he or she is being fair, but others can't see the judge's heart and they must evaluate actions. And a certain sloppiness of action has lately crept over the federal bench... Whatever happens Tuesday, a Chief Justice could use his influence to remind his charges of the two aspects of Canon Two. Roberts has politely called on Congress to stop its partisan irresponsibility with vacant judgeships, and God bless him for it; he might also call on judges to temper their passion with good manners."