BROOKE GLADSTONE:

Remember the 2010 State of the Union Address? Awkward!

PRESIDENT OBAMA:

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 —

[AUDIENCE APPLAUSE]

— to spend without limit in our elections.

[CONTINUED APPLAUSE]

BROOKE GLADSTONE:

Viewers could see Justice Samuel Alito grimacing and mouthing the words "not true." The State of the Union Address is perhaps not the best forum for a discourse among branches of the U.S. government but isn't mere attendance by Supreme Court Justices a way of communicating? If not, then why do some justices pointedly opt out?

That's precisely the question answered in a new paper, "Of Potted Plants and Political Images:  The Supreme Court and the State of the Union Address." Coauthor Michael W. Giles says 2010's showdown was uncharacteristic.

MICHAEL W. GILES:

Probably a breach of decorum on both sides, both in terms of the pointedness of the President's comments and certainly, at least over the past few decades, the presence of any response to the speech by a member of the Supreme Court.

BROOKE GLADSTONE:

So what do you make of Justice Scalia's comments that attendance is a juvenile exercise. Isn't that what he said?

MICHAEL W. GILES:

Well, I think he was more saying that it's an event characterized by juvenile behavior and that he objects to being invited to the indignity. Is some of the behavior juvenile? I, I guess that's in the eye of the beholder. Democracy is never genteel. People think that it's terrible in today's times, but there are lots of historical examples of this behavior, you know, going back to the — to the founding.

BROOKE GLADSTONE:

Justice Samuel Alito — he once said that it's very hard because presidents will fake you out. So if the President says, "Isn't this the greatest country in the world" and if you sit there looking like the proverbial potted plant, he said, you look like you're very unpatriotic. So you get up and you start to clap, and then [LAUGHS] the President will say, "Because we are conducting a surge in Iraq" or "because we're going to enact healthcare reform." And then you have to immediately stop clapping. It's very awkward. Do you have any sympathy for Alito?

MICHAEL W. GILES:

Not really.

[BROOKE LAUGHS]

First, that's a hypothetical that my colleague Todd Peppers, who did most of the reviewing of videotape, etc., didn't see a lot of examples of. Generally, the justices don't respond much to any of the comments. If you were watching the most recent State of the Union, they essentially sat and, and listened, while people were rising on both sides around them.

BROOKE GLADSTONE:

Now, after Alito's reaction to the chiding of Obama a couple of years ago, he said he wasn't going to be attending. Scalia doesn't attend. And yet, there's this assumption that justices do traditionally attend. And you found that's not the case.

MICHAEL W. GILES:

Well, the first evidence that we have that they were in attendance was the 1957 State of the Union Address. From that period forward, they attended in force. Up until 1980 there were at least eight justices, on average, there. It has fallen off since 1980, and particularly in the - the early 2000s; Justice Breyer alone was in attendance at three of the addresses.

BROOKE GLADSTONE:

So why the fall-off?

MICHAEL W. GILES:

The things that we did find to have an effect might be what one would expect, that is, that as justices get older, the probability of attendance decreases.

On the other hand, many justices like Brennan were regular attenders, despite advanced age and, and tenure. Justices tend to go to those addresses if the President is the one who appointed them. But beyond that, partisanship just did not predict attendance at the State of the Union Addresses.

BROOKE GLADSTONE:

Michael, do you think they should attend?

MICHAEL W. GILES:

Yes, I think they should attend. The Court depends upon public support more than any other branch of government. Beginning with Madison in the Federalist papers, the argument has been made, and I think reasonably so, that absent the power of the purse or the sword, the Court's powers rest upon the support of the American public.

This is a real opportunity for the Court to be seen. They wear the robes that set him apart. They don't rise to partisan one-liners to applaud. This is exactly the kind of image that declares the importance of the Court but also the distinctiveness of the Court.

BROOKE GLADSTONE:

How do you think the justices did this year? I think they looked like a hedge, a row of boxwood.

MICHAEL W. GILES:

[LAUGHS] But I think if you were looking early on, the fact that you had the President greeting them, that Roberts, appointed by George W., Kennedy appointed by a Republican President, greeting and smiling, as well as Ginsburg hugging the President, that suggests that while they can have policy dustups, that these are not personal conflicts. That was an important moment for people to see.

BROOKE GLADSTONE:

Michael, thank you very much.

MICHAEL W. GILES:

Thank you very much.

BROOKE GLADSTONE:

Michael W. Giles is a political science professor at Emory University and co-author, with Todd C. Peppers, of "Potted Plants and Political Images:  The Supreme Court and the State of the Union Address."