Reporters' Notebook

“I’m willing to bet a lot of money there will be no Supreme Court justice at the next State of the Union speech,” University of Texas law professor and Supreme Court historian Lucas Powe told ABC’s Jake Tapper last year.

No one took Powe up on his offer, and it’s a good thing for him. Six justices showed up for last night’s State of the Union address — the same number as last year.

“Jake can’t have my money,” Powe said with a laugh in a phone interview Wednesday.

Powe said he was stunned last year when Obama called out the justices during his speech for their ruling in Citizens United v. Federal Elections Commission, which loosened restrictions on corporate campaign contributions. Obama’s remarks prompted Justice Samuel Alito to mouth the words, “Not true.”

Powe said he agreed with Obama’s take on the case, but the State of the Union wasn’t the right venue to express distaste for the decision.

“I thought what Obama did last year was absolutely uncalled for,” Powe said. …The polite thing to do is not attack people who can’t leave.”

That’s why Powe said he figured none of the justices would show up to the State of the Union this year. But Elena Kagan, Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg, Anthony Kennedy and John Roberts were all in the House of Representatives chamber to hear the speech last night.

The justices are not asked, encouraged or required to attend the State of the Union. They may go or not go of their own volition. Six justices have attended the previous two years and in the early part of the decade it was more common for only one or two to show.

Obama’s remarks last year did not seem to have a marked effect on attendance this year, and Powe said that in retrospect he probably should have known that at least some justices would attend.

Kagan and Sotomayor were appointed by Obama, and Breyer has spoken publicly about his affinity for the State of the Union address.

The presence of Roberts, the chief justice, was less of a sure thing. After last year, he openly questioned the usefulness of having Supreme Court justices at what he said had become “a political pep rally.”

But this year’s address was decidedly less peppy and partisan in the wake of the Jan. 8 shootings in Tucson that left Rep. Gabrielle Giffords, D-Ariz., with a bullet wound to the head.

Democrats sat with Republicans, there were far fewer party-line standing ovations than usual and no one felt entrenched enough to scream “You lie!” at the president as happened during a September 2009 speech the president made to Congress.

James O’Hara, a former Loyola (Md.) University law professor and chairman of the publications committee of the Supreme Court Historical Society, said anticipation of the different atmosphere probably played into Roberts’ decision attend this year.

The other three conservative members of the court — Antonin Scalia, Samuel Alito and Clarence Thomas — were not attending and the court was in danger of appearing unduly partisan at a time when the nation had little patience for partisanship.

“If Roberts had not gone, then it might have looked as if all of the liberals were going and all of the conservatives were not going,” O’Hara said. “Then the next time there’s a Republican president does it get reversed? At that point it does involve the court in an arena that the court, I think, doesn’t like to get involved in.”

Powe agreed that Tucson probably played a role in Roberts’ attendance and cautioned against any speculation about the justices’ political ideologies influencing their decision to sit in on the speech.

“Scalia and Thomas didn’t show up for Bush, so I think we have to give them a pass,” Powe said.

– By Capital News Service’s Andy Marso