State of the Union 2023: Biden’s speech skipped by four Supreme Court justices

President Joe Biden’s second State of the Union was skipped by four Supreme Court justices, though some former justices came out of retirement to attend the event.

Four justices not present at the traditional U.S. Capitol’s House chamber event included Justice Sonia Sotomayor, an appointee of former President Barack Obama, along with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito, who are three of six Republican-appointees that helped overturn Roe v. Wade last summer.

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Biden’s address did make records for retired high court members who managed to make it to the event, which included former Justice Anthony Kennedy, an appointee of former President Ronald Reagan, and Justice Stephen Breyer, an appointee of former President Bill Clinton who was succeeded by Justice Ketanji Brown Jackson, the first black woman on the high court nominated by Biden.

The last time a former justice attended was former President Bill Clinton’s State of the Union address in February 1997, when Byron White came to the event.

Two appointees of former President Donald Trump, Justices Amy Coney Barrett and Brett Kavanaugh, greeted the president with firm handshakes and smiles Tuesday evening along with liberal justices Elena Kagan and Jackson.

At the start of his speech, Biden looked at Chief Justice John Roberts, an appointee of former president George W. Bush who was also present, and joked that Roberts should make a “court order” for the president to attend the Super Bowl with first lady Jill Biden.

“By the way, chief justice, I may need a court order,” Biden said in an opening joke. “She gets to go to the game … next week. I have to stay home. Gotta work something out here.”

In light of last summer’s 6-3 conservative majority opinion in Dobbs v. Jackson Women’s Health Organization, which allowed states to create laws severely restricting abortion access, Biden made a sweeping call for Congress to pass legislation to protect abortion access and “codify” Roe.

“Congress must restore the right the Supreme Court took away last year and codify Roe v. Wade to protect every woman’s constitutional right to choose. The vice president and I are doing everything we can to protect access to reproductive healthcare and safeguard patient privacy. But already, more than a dozen states are enforcing extreme abortion bans. Make no mistake; if Congress passes a national abortion ban, I will veto it,” Biden said.

The Washington Examiner contacted the Supreme Court to inquire about justices who were not in attendance at the address.

Sotomayor has not attended a State of the Union address since 2016, while Alito, the author of the Dobbs opinion, has not attended the annual event since 2010. Alito garnered attention for mouthing the words “not true” as then-President Obama denounced the high court’s Citizens United v. FEC ruling on campaign finance.

Meanwhile, Thomas has made clear on several occasions his reasoning for not attending State of the Union events, as he hasn’t been to one since 2006.

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“I don’t go because it has become so partisan and it’s very uncomfortable for a judge to sit there,” Thomas told students in 2010 at Stetson University College of Law in Gulfport, Florida, adding, “there’s a lot that you don’t hear on TV.”

Gorsuch has missed both of Biden’s State of the Union events but has attended three since he joined the high court under the Trump administration in 2017.