Constitution Daily

Smart conversation from the National Constitution Center

Tucson, the State of the Union and Justice Alito's Dilemma

January 25, 2011 by Dr. Steve Frank


Note: This editorial appears in today's Philadelphia Inquirer.

The lengthening political shadow of the Jan. 8 shooting rampage in Tucson will soon envelop this week's State of the Union Address, touching the empty chair on the floor of the House and casting a somber light over the tone of the evening.

President Obama during last year's State of the Union address. 

Already there is speculation about where lawmakers will sit – whether customarily divided by party, or, as some Democrats have suggested, commingled across the aisle. The attention the recent tragedy has focused on the inflamed state of political discourse will only increase in the days ahead.

As we search for hopeful signs of de-escalation in the partisan war of words, we can look not only to where people sit, but to who attends.

Jarring note

Think back a year to President Obama’s first State of the Union Address, when he took the assembled members of the Supreme Court to task for their ruling in the controversial Citizens United campaign-finance case.

“With all due deference to separation of powers,” the President said, “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.”

“Not true,” Supreme Court Justice Samuel Alito mouthed in response, shaking his head.

The President’s rebuke and Justice Alito’s reaction struck many as a jarring note. A similar exchange would be even more discordant and unlikely this year, when the president can be expected to renew his call for a new era of political civility in honor of Rep. Gabrielle Giffords and the other shooting victims.

Watch SOTU with us!

Join us tonight and watch the State of the Union here at The Center while celebrating the launch of Constitution Daily.

In the aftermath of last year’s address, and before the Tucson shootings, Justice Alito announced that he plans to skip this year’s State of the Union Address. In doing so, he follows the example of several other justices, including Antonin Scalia, Clarence Thomas and the recently retired John Paul Stevens, none of whom attended the annual address in recent years.

For Justice Scalia, the constitutional tradition of the State of the Union has become a “juvenile spectacle.” He resents being called upon to “sit there like bumps on a log while applause lines cause one half the Congress to leap up while [another line] causes the other half to leap up.”

Justice Alito takes the criticism a step further, complaining that “Presidents will fake you out” by starting a sentence with an applause line that would make a justice who doesn’t jump up look unpatriotic, only to end the sentence with a policy pronouncement that justices aren’t supposed to react to.

Passing Shadow

Justice Alito’s dilemma is heightened by the Tucson tragedy.

Recently, in explaining his reason for attending the president’s annual address each year, Justice Stephen Breyer pointed to the civic message sent to the country by seeing all three branches of government assembled in one place.

It is worth remembering that if our constitutional system is founded on disagreement and dissent, it is also a system intended to harmonize the clash of competing interests

What is that civic message? Not that politics proceeds without partisanship. Or even that the bar of political civility is set particularly high. In the outpouring of commentary since the shootings, we’ve been reminded that some of the Founding Fathers ended their political quarrels with dueling pistols and that in the decades before the Civil War politicians regularly wore weapons on the House and Senate floors, and sometimes used them.

But it is worth remembering that if our constitutional system is founded on disagreement and dissent, it is also a system intended to harmonize the clash of competing interests. The idea was to create a more effectual government, not a less capable one.

Justice Alito’s dilemma and Justice Breyer’s observation about the symbolism of the State of the Union address take on new significance in the aftermath of Tucson. To borrow a phrase from President Obama, with all due respect to the separation of powers, Justice Breyer’s message has special resonance this year.

Tonight, the President’s words will offer evidence of where he is heading in the coming year. The atmosphere surrounding his words, including where everyone sits and who attends, will be equally telling. Will the tone of civic life be transformed by the Tucson tragedy, or will that darkness pass as a shadow passes, leaving unchanged whatever it touches?


Sign up for our email newsletter