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To go or not to go: Supreme Court at the State of the Union

Chief Justice John G. Roberts Jr., Associate Justice Anthony M. Kennedy, Associate Justice Ruth Bader Ginsburg, Supreme Court Justice Stephen Breyer and Associate Justice Elena Kagan attendedthe 2012 State of the Union address.

Story highlights

  • Not always easy for Supreme Court justices at annual address
  • Obama irritated some with criticism of conservative members in 2010
  • Custom dictates the justices wear their robes during speech
  • Chief Justice Roberts has never missed a State of the Union speech

One member of the esteemed group feels like a "proverbial potted plant," while another resents sitting there "looking stupid." Their chief ponders the pageantry and politics of it all and wonders why they bother to go.

For members of the Supreme Court, enduring the State of the Union address is a civic exercise in poker-faced discretion. As recent history has shown, that is not always easy.

Tuesday's speech in the House chamber by President Barack Obama will be watched closely not only for what is said about his second-term agenda, but also for who will be there in person to hear it.

Court members are not required by law to be there, but custom has dictated their appearance in their robes, mostly for show.

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They are low-key part of the pageantry and are compelled to sit politely and stoically amid the often high-spirited partisan rhetoric and response of the event.

    There is no word yet from the high court about who appear. Invitations are sent to each chamber and the justices have individual discretion whether to attend. Usually one or more do.

    Anthony Kennedy attends but Stephen Breyer is the one justice who might be called a regular.

    "People attend if they wish to attend. I do wish to attend, so I go," Breyer told CNN in 2005.

    Government sources say Justice Sonia Sotomayor, who joined the bench in 2009, is expected to be there. So, too, Justice Elena Kagan. Obama nominated both to the court.

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    The political embers were stoked three years ago when Obama went after high court conservatives during the speech.

    He singled out the majority ruling in Citizens United v. Federal Election Commission, issued a week earlier, which removed legal barriers preventing corporations and unions from spending unlimited sums on federal elections.

    "With all due deference to the separation of powers," Obama said, "the Supreme Court reversed a century of law to open the floodgates for special interests, including foreign corporations, to spend without limit in our elections."

    Sitting just feet away in the audience, Samuel Alito shook his head and mouthed words interpreted as "not true," referring to the line about "foreign corporations," court sources later confirmed.

    Alito's five fellow justices with him that night showed no emotion.

    Chief Justice John Roberts labeled the political atmosphere at the 2010 address "very troubling" and said partisan rhetoric and gestures aimed at the court left him questioning whether his colleagues should attend.

    "It does cause me to think whether or not it makes sense for us to be there" Roberts said weeks after the controversy. "To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there."

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    Regardless, Roberts has never missed a State of the Union as chief justice and is expected to be there next week.

    His predecessor, Chief Justice William Rehnquist, rarely appeared in person. On one occasion, he considered a painting class more preferable.

    Some current justices have been no shows regularly or at times.

    Alito had been a regular, but he told an audience after the 2010 event that he felt "like the proverbial potted plant" and would not be attending in the near future.

    Justice Clarence Thomas called it "very uncomfortable for a judge to sit there." He went to Obama's first in 2009, but has not been back since.

    "There's a lot that you don't hear on TV," he said recently. "The cat-calls, the whooping, hollering, and under-the breath comments."

    Another more vocal no-go is Justice Antonin Scalia, who has compared the televised State of the Union to "cheerleading sessions."

    "You just sit there, looking stupid," he said, calling the event and the spasms of partisan applause a spectacle.

    "I resent being called upon to give it dignity."

    He last attended in 1997.

    By the numbers: State of the Union

      2013 State of the Union

    • WASHINGTON, DC - FEBRUARY 12:  U.S. President Barack Obama delivers his State of the Union speech before a joint session of Congress at the U.S. Capitol February 12, 2013 in Washington, DC. Facing a divided Congress, Obama focused his speech on new initiatives designed to stimulate the U.S. economy and said, "It?s not a bigger government we need, but a smarter government that sets priorities and invests in broad-based growth".  (Photo by Alex Wong/Getty Images)

      The heart of President Barack Obama's speech Tuesday was the same focus that's driven every State of the Union of his presidency.
    • Obama shakes hands with House Speaker John Boehner before delivering the address.

      President Barack Obama launched three days of campaign-style speeches with a visit to a manufacturing plant that he said epitomized his proposals for job creation.
    • President Barack Obama is greeted before his State of the Union address before a joint session of Congress on Capitol Hill in Washington, Tuesday, February 12.

      CNN asked viewers to post a #tweetoftheunion on Twitter summarizing Obama's State of the Union speech.
    • As with any State of the Union address, President Barack Obama had several audiences and there were multiple aims for the White House.
    • sotu2013 gop response rubio entire_00124817.jpg

      Claiming Barack Obama thinks a "free enterprise economy" is "the cause of our problems" -- not, as he sees it, the solution -- Sen. Marco Rubio argued that the president's proposals would hurt middle class citizens more than help them.
    •  	SPANISH FORK, UT - NOVEMBER 24: A car makes it's way up U.S. Highway 6 as several 2.1 mega watt wind powered turbines owned by Edison Mission Energy, sit a the mouth of Spanish Fork Canyon November 24, 2008 in Spanish Fork, Utah. Each turbine is 300 feet tall, with three 150 foot blades. Deputy Assistant Secretary of Land and Minerals Management at the Department of the Interior, Michael D. Olsen, said the potential for production of wind energy on public lands in the West is 'tremendous,' with the alternative energy source already accounting for the fastest growing energy sector in the U.S. Last year the U.S. saw a 46 percent increase in wind capacity and $9 billion in new investments, he said. (Photo by George Frey/Getty Images)

      President Barack Obama talked up alternative energy. Not only did he tout the solar and natural gas industries' recent gains, he also talked up the amount of wind energy that's now fueling the country.
    • sot nixon 1974 dkg sotu_00001914.jpg

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    • First Lady Michelle Obama, center, is recognized by the audience and special guests surrounding her before President Barack Obama's 2013 SOTU. Front row, left to right: Sgt. Sheena Adams, Nathaniel and Cleopatra Pendelton, Michelle Obama, Menchu de Luna Sanchez and Jill Biden. Second row, left to right: Governor John Kitzhaber, Deb Carey, Apple CEO Tim Cook, Amanda McMillan, and Lieutenant Brian Murphy.

      Earlier presidents delivered a written message to be read to Congress before the tradition became at TV event.