Keeping powers separate

March 02, 2001|By Jules Witcover

WASHINGTON -- When the arrival of the justices of the Supreme Court was loudly announced in the House of Representatives the other night in advance of President Bush's first speech to Congress, most eyes were riveted on the aisle where they were to make their entry.

A few boos were heard, presumably from the Democratic side in protest of the court's 5-4 decision stopping the Florida recount and putting Mr. Bush in the White House. Then, instead of nine justices strolling down the aisle in their regal robes, only one -- Stephen Breyer, appointed by President Bill Clinton -- walked to his reserved seat near the front of the chamber.

What was going on? Were the other Supremes so embarrassed by their decision, widely criticized as a blatant political act, that they decided the better part of valor was to stay home? Mr. Breyer, one of the four dissenters in the decision who had tried to find a way to keep the recount going, stood at his seat and smiled as the cameras recorded his jurisprudential solitude.

It turns out, from a reliable Supreme Court source, that the decision of the other eight not to attend was a subject of some discussion in advance between Mr. Breyer and at least some of the other justices. The occasion of Mr. Bush's first address in the House chamber was not the first time members of the court had failed to show up for what at one time was a traditional appearance.

Mr. Breyer himself missed Mr. Clinton's last State of the Union address because he had the flu, and fellow justices Ruth Bader Ginsberg, hospitalized at the time, and Clarence Thomas, whose brother had just died, also did not attend. But Mr. Breyer wrote a note to Mr. Clinton to inform him because he felt attendance of the justices was a tradition that should be maintained.

Upholding tradition

He also expressed that viewpoint in discussing the first Bush speech with his colleagues, but others countered with contrary viewpoints, from dismissal of the notion that such a tradition was justified, and the occasion was too political, to an argument with respect to the separation of powers. While Mr. Bush's speech was not formally a State of the Union address but a preview of his budget proposals, Mr. Breyer regarded it as part of the tradition that he intends to continue himself.

The failure of eight of the nine justices, including Chief Justice William Rehnquist in his self-designed gold-striped robe, to put in an appearance saved them from the awkwardness of having to decide whether to join the chamber's applause for Mr. Bush, some of it doled out clearly along political lines, or sit with their hands quietly folded.

But their absence inevitably reminded viewers in the chamber and the millions watching on their television sets of their split decision in Bush vs. Gore, already regarded as one of the court's most controversial in its long history --and, by many, its most political.

Somewhat remarkably under the circumstances, the boos heard were the only discordant note struck in a chamber almost evenly divided by party after an election most Democrats argue was either stolen by the Supreme Court's majority intercession or one that failed to give Mr. Bush a mandate for his $1.6 trillion tax cut proposal.

As presidential speeches go, there was very little partisan red meat thrown out by Mr. Bush -- so little that both sides of the aisles often joined in applause, much of it standing. The Supremes' neutrality would not have been seriously threatened had they shown up and put their hands together politely on occasion.

Whether the tradition of attendance of the Supreme Court at presidential speeches to Congress is really a tradition at all, or should be, apparently is another matter that will be considered in the sheltered privacy of the court itself. There is no doubt that the arrival of the justices in their black robes lends a certain dignity and celebration to the occasion of such relatively rare occasions.

If the reason all but one Supreme Court justice failed to appear is the court's sensitivity that as a body it should not be involved in presidential speeches because they smack too much of politics, then a very large horse-laugh is in order in light of the court's majority decision to decide the election of a president instead of leaving it to the voters.

Jules Witcover writes from The Sun's Washington Bureau. His latest book is "No Way to Pick a President" (Farrar Straus & Giroux, 1999).

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