Snooze or Snub? How the Public Reacts to Judicial Attendance at the State of the Union

Abstract

The president’s State of the Union Address is the pinnacle agenda-setting event of the executive’s year. Generally, along with the executive’s cabinet, the entire House and Senate are present. One branch’s attendance, however, has noticeably fluctuated over time. To date, we know of no research that studies the public response to the Court’s decision to skip or attend. For this study, we develop a survey experiment to explore the impact that media coverage of justices’ decisions to stay home has on public opinion. We hypothesize participants will be willing to lower their approval of the Court and the president when justices skip the State of the Union. We also suggest that (dis)loyalty to the president should moderate opinions on a justice’s decision to stay home. Supporters of the president should show more propensity to lower their evaluation the Court when a majority of justices choose to stay home.

Keywords:

• Supreme Court public opinion
• executive-judicial relationship
• State of the Union

Acknowledgments

We thank Mark Hurwitz and anonymous reviewers for their useful feedback on previous versions of this work. We also thank Rhode Island College, Rhode Island College Foundation, and Rhode Island College Alumni Affairs Office for Funding Assistance.

Notes

1 Forgey, Q. (2020, February 2). AOC, Ayanna Pressley to skip Trump’s SOTU address. Politico. https://www.politico.com/news/2020/02/04/aoc-pressley-sotu-110734

2 Statista reports the annual viewership: statista.com/statistics/. Dozens and dozens of news reports about the State of the Union, and importantly for this paper, about attendance at the State of the Union are printed every year.

3 Simple internet searches will show the reader how the frames can vary depending on attendance and the multitude of articles that cover justice attendance every year.

4 Ross, L. (2011, January 24). Supreme Court Justices Could be No-Shows for Obama’s State of the Union Address. FoxNews.com.

5 Peppers and Giles (2012) have remarkable archival work regarding the motivations of judicial attendance at the State of the Union address. A few notable examples are as follows. First, they speculate that the Chief Justice may exert some pressure to attend the State of the Union. They find that in 1957 judicial attendance increased dramatically, and they postulate that perhaps Chief Justice Warren “urged members of his Court to present a unified front in the face of political hostility from conservative members of Congress” (p. 61). In addition, they find that Chief Justice Warren believed the decision to attend the SOTU was “institutional, not individual” (p. 77). In contrast, Chief Justice Roberts said the decision to attend is “up to each individual member of the court” (p. 78).

6 Justice Amy Coney Barrett argues US Supreme Court isn't 'a bunch of partisan hacks' https://www.courier-journal.com/story/news/politics/mitch-mcconnell/2021/09/12/justice-amy-coney-barrett-supreme-court-decisions-arent-political/8310849002/

7 Justice Thomas defends the Supreme Court’s independence and warns of ‘destroying our institutions’ https://www.washingtonpost.com/politics/courts_law/justice-clarence-thomas/2021/09/16/d2ddc1ba-1714-11ec-a5e5-ceecb895922f_story.html

8 Breyer, Stephen. The Authority of the Court and the Peril of Politics. Harvard University Press, 2021.

9 Ruth Bader Ginsburg skipping Trump's State of the Union address – NBC News: https://www.nbcnews.com/storyline/2018-state-of-the-union-address/ruth-bader-ginsburg-skipping-trump-s-state-union-address-n842566

10 Now, we do not interview subjects to test what the cue meant to them. However, we are confident that our results indicate a cue was received and influenced opinion. Based on our third dependent variable of interest, which captures perception about how the Court feels toward the presidency, we suggest we are correct in our assumption that a signal of inter-institutional support was received.

11 It is specific support for the Court, i.e., do you approve of the Court right now, rather than diffuse support, that we suggest is most likely to be influenced by passing headlines.

12 Blackman, J. 2020. Will the Justices skip the 2020 State of the Union? Reason.

13 We present models to account for all participants, presidential supporters, and presidential non-supporters. This allows us to see differences in effects sizes, but we are not testing statistically significant differences between supporters and non-supporters. Footnote 16 explains that t-tests demonstrate statistically significant difference of means between presidential supporters and non-supporters in all the conditions.

14 We initially hypothesized this drop should be greater with presidential non-supporters. However, our results indicate that the drop is greater within presidential supporters. Our analysis below provides post-hoc explanations as to why.

15 Again, footnote 16 explains that ttests demonstrate statistically significant difference of means between presidential supporters and non-supporters.

16 The main models do not test the statistically significant difference between the condition coefficients. But t-tests between non-supporters and supporters show statistically significant differences. For Supreme Court Support, the difference of means for Presidential Supporters and Presidential Non-supporters in all three treatment conditions were statistically significant at the .01 level. For Presidential Approval, the difference of means for Presidential Supporters and Presidential Non-supporters in all three treatment conditions were statistically significant at the .01 level. For Perception of Supreme Court Opinion of President, the difference of means for Presidential Supporters and Presidential Non-supporters in all three treatment conditions were statistically significant at the .01 level.

17 Since November 2020 had an election, some might wonder if participants may confuse who the president was. 78.88% of our respondents correctly identified Michael Pence as the Vice President. Regardless, as treatments and questions mention “president,” the effects should hold despite who and individual believed held that position. Additionally, we do not believe that conducting this survey experiment during an election year destroys all claims of generalizability. Even in a polarized era with an election of that nature, respondents demonstrated opinion shifts in response to our vignettes. If a president was more liked, there would reason to hypothesize the effects could be even stronger.

18 Participation was restricted to respondents within the United States, over the age of 18, and who had successfully completed at least 100 other M-Turk assignments. In addition, we removed responses which were obviously not seriously participatory (i.e., people who completed the survey in less than a minute, those who completed half the questions, etc.).

19 Compensation is thus above the federal minimum wage level.

20 While not a scientific count of who notices the justices’ attendance at the State of the Union, a reader with a Twitter account can search “justices skip state of the union” to see the variety and number of tweets that pop up.

21 (2013. February 24). All justices should attend addresses. Las Vegas Sun (NV). NewsBank: America's News – Historical and Current.

22 (2002. February 3). Mail shots. The San Francisco Chronicle. NewsBank: America's News – Historical and Current.

23 Biernacki, B. 2016. Supreme Court justices should leave politics out of the state of the union. Chicago Tribune.

24 (2013. February 14). Editorial: Where were Scalia, Thomas and Alito?. Concord Monitor (NH). NewsBank: America's News – Historical and Current.

25 Stoher, G. (2019, May 2). Four justices, but not Ginsburg, planning to attend Trump speech. Bloomberg News.

26 Tau, B. 2014. Four justices skip State of the Union address. PoliticoNOW.

Dartunorro, C. 2019. Ruth Bader Gingsburg skipping Trump’s State of the Union Address. CNN News.

27 It is worth noting that this negative connotation does not necessarily have to have the intent of hurting the Court. This is the president’s event; the negative frame could often be directed at the presidency. The theoretical important of these examples, for our study, is to demonstrate that this decision of the justices can serve as a cue note, and that cue is then used by individuals to shape their attitudes towards the Court and president. Our study observes the impact of statements on attendance on specific support for the Court and approval for the president.

28 Mears, B. 2013. To go or not to go: Supreme Court at the State of the Union. CNN.

29 Totenberg, N. 2011. Supreme Court Majority to Attend State of the Union. NPR.

30 “To what extent do you disapprove or approve of the way the U.S. Supreme Court is performing its job?” Responses were measured using a 7-point Likert scale, ranging from “Strongly Disapprove” (1) to “Strongly Approve” (7).

31 The responses were on a 7-point Likert scale from strongly disapprove to strongly approve with 4 being neither disapprove nor approve.

32 Appendix Table A9 reveals the ideology of each respondent and if they are a presidential supporter or not. Given the survey was run close to the 2020 presidential election, some may be concerned the respondents would be confused as to who was president. Table A9 shows that a large majority of conservatives approve of the president (President Trump) and a large majority of liberals do not. Additionally, footnote 15 explained that most respondents correctly identified Pence as the vice-president.

33 Condition assignment does not predict any of our demographic variables.

34 We can then comment on the relative size of the effects. This does not test the statistical significance of differences of these differences. However, t-tests for presidential supporters and non-supporters within conditions demonstrate the differences which we highlight.

35 OLS coefficients represent the difference in means between the treatment condition and the baseline. Thus, these results are directly and meaningfully interpretable.

36 The appendix presents the main models, in table form, along with additional models using robust standard errors – tables A1 through A6. Results are nearly identical. The appendix also provides models with additional control variables and additionally estimates the models with Ordered Probit as a robustness check (A10 and A11).

37 As determined by a t-test, in the All-Attend condition, the difference in Supreme Court Approval between the presidential supporters and non-supporters is significant with a p-value of .001.

38 As determined by a t-test, in the All-Attend condition, the difference in Presidential Approval between the presidential supporters and non-supporters is significant with a p-value of .001.

39 The p-values for these two models are 0.064 and 0.06 respectively.

40 McCarth, Justin. 2020. “Approval of the Supreme Court is Highest Since 2009.”; Hartig, Hannah. 2020. Before Ginsburg’s death, a majority of Americans viewed the Supreme Court as ‘middle of the road’.”

41 As determined by a t-test, in the All Attend condition, the difference in Perceived Supreme Court Feeling between the presidential supporters and non-supporters is significant with a p-value of .001.

42 Results are robust to all other specifications, including ordered probit estimation, which are included in the appendix.