Etiquette at the State of the Union

I’m curious if anyone knows the answer to the following question.  By tradition the Justices who attend presidential speeches to a Joint Session of Congress do not applaud (or, at least, rarely do) as a sign of judicial neutrality.  When did this custom get started?  Who was the Justice who first decided that this was the appropriate practice?

Here’s a related point.  Justice John Marshall Harlan (the younger) took the position that Justices should not vote in elections as a sign of judicial neutrality.  This norm, though, never caught on (at least as far as I know).  Why?

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4 Responses

  1. Orin Kerr says:

    My recollection is that Harlan declined to vote not as a “sign” of judicial neutrality but rather to help keep him as neutral as possible: By not voting, he was less likely to feel invested in the success or failure of any particular President or party. It was a way of keeping himself mentally as neutral as he could.

  2. Gerard Magliocca says:

    I wonder if people outside of the Court knew of Harlan’s policy while he was there. If so, then maybe it was partly meant to send a message. If not, then your interpretation must be right. Maybe more judges should follow his example.

  3. Jason Mazzone says:

    Todd Peppers and Micheal Giles have a paper on the justices attending the state of the union. They are not certain about the origin of the justice-as-passive-observer norm but they think it began with the Warren Court. The paper is here:

  4. Mamption says:

    It depends on the country’s law and rules. I think justices should not vole as there are a number of facts related to this.