President Trump’s two selections to the Supreme Court, Associate Justices Brett Kavanaugh and Neil Gorsuch, are expected to join Chief Justice John Roberts and Justice Elena Kagan at Tuesday night’s State of the Union address.
Justice Ruth Bader Ginsburg, 85, will not be among them. On Monday, though, Ginsburg made her first public appearance since undergoing lung cancer surgery in December, attending a concert called, “Notorious RBG in Song” in Washington, D.C. The concert was dedicated to Ginsburg’s life in the law.
At the concert, Ginsburg sat in the back of the darkened auditorium at the National Museum of Women in the Arts and, according to The Washington Post, was only spotted by concertgoers as they left the performance.
DEMS TROLL TRUMP WITH STATE OF THE UNION GUESTS
Justices typically attend State of the Union speeches given by the president who nominated them. For Kavanaugh, the evening will be his first time back on Capitol Hill with members of Congress who grilled him last year over a series of sexual misconduct allegations that threatened to derail his confirmation and that he denied.
Roberts and Kagan have never missed the State of the Union address since they’ve been on the court.
Several justices, current and retired, have avoided the event, however. In 2010, Justice Samuel Alito, who was appointed to the bench by President George W. Bush, made waves by mouthing “not true” after Obama issued an unusual rebuke of the Supreme Court during his State of the Union address that year.
Alito has not returned to a State of the Union since. The justice said afterward at the conservative Manhattan Institute in New York that the annual speech to Congress has become very political and awkward for the justices, who he says are expected to sit “like the proverbial potted plant.”
He said that his colleagues “who are more disciplined refrain from manifesting any emotion or opinion whatsoever.”
CLICK TO GET THE FOX NEWS APP
Justices and attendees who do not constantly applaud often “look very unpatriotic,” Alito added.
Other justices who consistently avoided the State of the Union include the late Antonin Scalia and Clarence Thomas. Scalia called the State of the Union a “childish spectacle” and “a rather silly affair,” and did not attend during his last 20 years on the bench.
“I don’t think that I want to be there to lend dignity to it,” Scalia said in 2013, during an address at the Smithsonian Associates at George Washington University that overlapped with that year’s State of the Union. “The State of the Union is not something I write on my calendar.” But, he added: “I didn’t set this up tonight just to upstage the president.”
Thomas, for his part, has skipped the event for more than a decade.
Even Roberts, who is slated to again attend on Tuesday, has intimated he’s not happy about having to make an appearance. He has characterized the evening as a traditionally “political pep rally.”
Roberts would have some precedent for calling out: Former Chief Justice William Rehnquist, in the final years of his tenure, didn’t make the speech on several occasions. Former Justice John Paul Stevens, meanwhile, never once attended.
Although the Supreme Court’s justices may attempt to stay out of the political spotlight, it is expected to soon find them regardless. The high court is expected to decide in the next few days whether Louisiana can begin enforcing a law requiring doctors who work at abortion clinics to have admitting privileges at a nearby hospital. It was passed in 2014, but has never taken effect.
The Supreme Court struck down a similar law in Texas three years ago, but the court’s lineup has changed since then. The law was to have taken effect on Monday, but Alito issued a brief order last week that pushed back the effective date at least to Thursday because, Alito said, the justices needed more time to consider an emergency appeal from Louisiana abortion providers. Alito handles those appeals from Louisiana.
Fox News’ Edmund DeMarche and The Associated Press contributed to this report.