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In Defense of Custom

The opinions expressed by columnists are their own and do not necessarily represent the views of

Civility and the need for it is much in the news these days, often enough in a political context, and even more often when pundits and pols are accusing each other of lacking it.

Civility, like so many other virtues, tends to be more preached than practiced. And to judge by much contemporary commentary, it is a practice most needed by others.

Even so, such lectures may have a wholesome effect. Note the president's State of the Union yawner some weeks ago. This year he didn't pause to ream out the various members of the Supreme Court of the United States in attendance. Last year they were arrayed (and arraigned) before him like prisoners in the dock waiting to be lectured severely. Which they were.

Their offense: daring to respect the right to free speech of even those most despised of creatures in American political rhetoric: corporations, political action committees and labor unions. There was no such dramatic spectacle this year. Its absence was a great improvement. Boredom can be a step up for this president.

Only six justices showed up for this year's address from the throne and, all too often, partisan circus. In recent decades the congresspersons have taken to jumping up and down like jacks-in-the-box when a president cues them. This year three of the black-robed brethren summoned sufficient self-respect to absent themselves from this Roman spectacle.

Instead of just sitting there while being skewered, the Hon. Samuel Alito couldn't help but mouth the words "not true" when the president took advantage of his captive audience to misrepresent one of the court's most important decisions ever on behalf of freedom of speech.

Brother Alito would have done better to remain expressionless while walking out. For in America no gentleman need stand for that kind of thing -- not from anyone, whether servant or public servant, porter or president of the United States.

But this year, while the president prated on, Brother Alito was spending a week in Hawaii as "jurist in residence" at its university's law school. That way, he could say Aloha to the president from a safe and sunny distance.

The second judicial, and judicious, no-show was Antonin Scalia, who hasn't attended a State of the Union for a couple of decades. Well played, sir. What a rare show of good judgment on the part of a justice who otherwise goes around the country making political speeches and even staging public debates with another self-promoting justice (the Hon. Stephen Breyer).

Naturally enough, the Hon. (and honorable) Clarence Thomas stayed away, too, having had quite enough of presidential rudeness in the past.

Much like children, justices of the U.S. Supreme Court should be seen and not heard -- at least outside their courtroom and court decisions. There is no need for them to fill out the cast of extras at a president's annual report to Congress. Justices with sufficient self-respect will decline that dubious honor.

In a system characterized by the separation of powers and the independence of the judiciary, it's a mystery why any of the justices should feel it necessary to attend these imperial galas. Unfortunately, six of the justices lent themselves to the spectacle this year, dutifully showing up for any abuse the president might care to hand out.

Whether they serve only as ornaments on such occasions or punching bags, too, justices of the Supreme Court of the United States have no business so risking their dignity or the court's. The whole spectacle is an insult to republican simplicity.

Granted, even presidents have a right to free speech, and even a right to abuse it in a free country. But why should the Supreme Court sit still for it?

Next year nothing might reflect so well on the justices and their self-respect, or just respect for their court, as having the president and press look around for their august presence ... and there they aren't. No more whipping boys. They have a higher role to play in this Republic.

Unfortunately, two-thirds of the court still lends its presence to this show: Anthony Kennedy, Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor. They all showed up for the evening's festivities along with the chief justice, John Roberts. Their Honors never learn.

The presence of the chief justice on this occasion was particularly disappointing. Since at one point he seemed to understand why the court shouldn't be attending these public humiliations. To quote from an appearance he made last March:

"To the extent the State of the Union has degenerated into a political pep rally, I'm not sure why we're there. ... (T)here is the issue of the setting, the circumstances and the decorum. 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."

But not troubling enough for Chief Justice Roberts to find he had a previous engagement this year. Pity. For when it comes to the separation of powers, or just the simple dignity of the court, not to mention his own, the chief justice only talks a good game.

What ever happened to the unspoken eloquence of the simple, silent snub? It seems to have gone the way of hand-written thank-you notes and the custom -- indeed, autonomous reflex -- that moves a gentleman to stand in the presence of a lady. Instead, we get boors who wear their ball caps indoors and presidents who decide to embarrass Supreme Court justices, and themselves, in public.

It should be an unwritten rule: Justices of the Supreme Court of the United States do not give command performances. They are not Broadway actors or leading divas, and the president of the United States is not a monarch. Not yet, anyway.

Oh, for the long years when the chief magistrate of the Republic submitted his annual report on the State of the Union in a written message to be read by a clerk to a drowsy Congress -- sans photo-ops, foot-stamping, cheers-and-applause, alternating boos and jeers, and all the assorted folderol that now comes with a State of the Union speech.

That kind of restraint was abandoned by Woodrow Wilson, who decided the State of the Union was the perfect occasion on which to have legislative and executive branches mix, much as they do in the parliamentary system he so admired. Happily, we still have a Constitution that keeps them separate. If we can just hold onto it. In spirit as well as letter, appearance as well as substance, custom as well as law.

In the end, custom may determine law, and prove far more enduring. Let it become the custom of the land to respect the independence of the judiciary, not assail it. When it comes to having members of the U.S. Supreme Court in attendance as the president gives his annual State of the Union message to Congress, may we all look forward in future years to the pleasure of their absence.

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