State of deception

In a word—a strong word of the kind we usually abjure, but one that is unusually apt—the Boston Globe's editorial is bullshit. They write: "The decision by Supreme Court justices Antonin Scalia, Samuel Alito, and Clarence Thomas to skip President Obama’s State of the Union address has been widely interpreted as payback for Obama’s criticism of the court in last year’s speech." The Globe's editors must know perfectly well that this premise is ridiculous, yet they place this under the conclusory headline that "[b]y skipping Obama speech, justices bring politics to court."

Coverage of the court's attendance at this year's SOTU has seen an overuse of two stock sleight-of-hand tricks. The Globe uses them; here's another example, from the Washington Post. The first trick is the half-truth: the statement that's true as far as it goes, but which leaves out some important detail or context. Instead of outright lying, you allow the average reader to infer the incorrect impression you want to convey from the incomplete truth you give them. The second trick is to smuggle an assertion in as a premise. Instead of directly stating a controversial (perhaps indefensible) claim, you make a different (typically more palatable) claim that assumes the other claim, and hope the reader is so busy looking at the worm to notice the hook holding it up. Both are fired in the media's barrage against the court. The Post says that the "Supreme Court won't be fully represented at State of the Union," and Globe writes that "the court’s three most conservative justices, all Republican appointees, have chosen to skip the State of the Union address of a Democratic president."

The legerdemain is in the implication: That there is something unusual about justices skipping a State of the Union speech. Indeed, the implication is that all of them normally attend. It isn't and they don't. Both claims are underpinned by fabrications. You know it; I know it; and in fact, the Post and the Globe know it, too, but they hope that their readers are too ill-informed to know it, or too partisan to care.

The question that the Globe and their ilk are hoping readers won't ask is this: When was the last time that the court was "fully represented at [a] State of the Union"? I have no idea. I can't remember it ever happening. Nor is it unusual for Justices to absent themselves; the average attendance between 1995 and 2010 rounds up to four. Nor are accusations of partisanship supported by the record. Scalia attended two Clinton SOTUs and hasn't returned since 1997. Thomas usually attended during the 1990s, but in the last decade attended only twice, once each under Bush and Obama. Justice Souter hadn't attended one since 1999, and Justice Stevens almost never did.

Interesting enough, there is one Justice whose attendance record could support a charge of partisanship. The Globe charges the convervative justices with politicizing the speech, but says not a word about Justice Ginsburg's record. Ginsburg attended four Clinton SOTUs, and hasn't missed one of Obama's. During President Bush's tenure, however, Ginsburg attended a grand total of zero State of the Union addresses.

To be clear, I am not criticizing Justice Ginsburg for not attending the speech. Actually, I am critical of her—and the rest—for attending it at all. "It is a juvenile spectacle," Justice Scalia noted last year, "and I resent being called upon to give it dignity. It's really not appropriate for the justices to be there." He's right. And more to the point, the Globe is wrong, or at least mendacious.