Before this year I never had much of an opinion on the perennial debate over cameras in the U.S. Supreme Court. I had a vague aversion to the idea, but no clear argument to back it up.
That changed in February, after the court heard oral arguments in Octane Fitness v. Icon Health and Fitness, a patent dispute. It was the sort of case that would normally make no headlines outside specialty publications. But the proceedings were interrupted when a spectator, Noah Kai Newkirk, rose and allegedly delivered a “harangue or oration” in violation of federal law. (He entered a not-guilty plea the next day.)
In the alleged harangue, Newkirk denounced the court’s 2010 free-speech ruling in Citizens United v. Federal Election Commission and demanded that the justices rule in favor of the government in the then pending case of McCutcheon v. FEC, which challenged certain statutory limits on campaign contributions. (McCutcheon won, as it so happens.)
Newkirk belonged to a group called 99Rise, whose website describes its aim as getting “big money out of American politics.” The “longtime progressive activist” told Reuters that “99Rise was formed by a small group of people in Los Angeles who were inspired by the Occupy Wall Street protests.”
Newkirk’s disruption was illicitly captured on video, apparently by a confederate who had smuggled a camera past court security. What Reuters accurately described as a two-minute “shaky, low-quality video” was uploaded to YouTube. In addition to the February disruption, it showed what was purportedly a scene from the McCutcheon oral arguments last October.
A secondary controversy arose when the court, as it routinely does, posted the official transcript and audio recording of the Octane Fitness arguments to its website. The alleged harangue was not transcribed, and it was deleted from the recording. Josh Blackman, a professor at Houston’s South Texas College of Law, reported on his blog that the recording, but not the transcript, also omitted Justice Anthony Kennedy’s subsequent soothing words to one of the lawyers—“Take your time, take your time”—that followed Newkirk’s outburst.
Jesse Wegman, the New York Times editorialist who covers the court, was outraged at the redaction. “The protest is no secret,” he wrote on the Times’s editorial page’s Taking Note blog. “And yet the Court decided to pretend it never happened.” That Wegman characterized as a “hasty re-clothing of the emperor,” as if it were some sort of fraud.
But Wegman went further. He actually cheered the disruption of the court’s proceedings:
Mr. Newkirk’s “outburst” was, in its way, well suited to its august setting. It was a concise, quasi-legal argument, delivered calmly and even with a formal introduction: “I rise on behalf of the vast majority of the American people who believe that money is not speech, corporations are not people, and our democracy should not be for sale to the highest bidder. Overturn Citizens United,”Mr. Newkirk said. Lawyers often take 30 minutes to say much less.
The justices are well aware of the strong feelings their decisions evoke; they endure protesters outside public-speaking engagements and hecklers inside, not to mention death threats. That is the price of having one of the most powerful jobs in the country.
Wegman’s suggestion that Supreme Court justices ought to expect death threats was especially galling coming from a member of the editorial board that three years earlier seized on the shooting of Congresswoman Gabrielle Giffords, by a mentally ill man with no recognizable ideological motive, to declare “Republicans and particularly their most virulent supporters in the media responsible for the gale of anger that has produced the vast majority of these threats [against Democratic politicians], setting the nation on edge.” (See “A Week in the Death of the New York Times,” TAS, March 2011.)
Yet there is a consistency between the scurrilous 2011 editorial and Wegman’s 2014 blog post. Both ignore the crucial distinction between lawful political protest or expression on the one hand, and unlawful disruptions or violent threats on the other. It seems the Times is willing to approve of just about any tactic when used by its ideological allies, while demanding that its adversaries simply shut up.
Wegman went yet another step further, scoffing at the idea of judicial independence:
Excising the reality from the record only serves to maintain the illusion that the Court—and its process—is somehow above the rest of government, untouched and untouchable by base political sentiment. It’s not true, of course, and we shouldn’t pretend otherwise.
Which brings us back to the question of cameras at the court, which Wegman opened his blog post by endorsing apophasically:
Let’s set aside for the moment the perennial debate over whether the Supreme Court should (yes) or will (someday, surely) join the other branches of government and televise its proceedings.
No, let’s not. The Newkirk incident demonstrates why cameras in the courtroom are a bad idea. Undoubtedly his motive was to get attention, and he succeeded because of the illicit video footage. Cameras in the courtroom would be an invitation to many further disruptions. Wegman may think that subjecting the court to shows of “base political sentiment” is desirable, but one suspects he’d find unanimous disagreement among the justices.
Did it occur to Wegman that his endorsement of disruptions at the court cuts both ways? What if a heckler arose to deliver a harangue or oration against Roe v. Wade and the court’s subsequent abortion jurisprudence?
That’s not a hypothetical question. It happened in 2006. Blackman (who shared Wegman’s outrage over the Octane Fitness redaction) reported in an update to his post that he’d heard from a fellow law professor, David Cohen of Drexel University, who “notes that during arguments in Gonzales v. Carhart, at 36:33, there was a protestor, and you can hear it loud and clear” on the official recording.
I listened. It’s loud but not clear; the only words I could make out were “Jesus said.” The interruption is not noted in the transcript, which goes straight from a comment from one of the lawyers to Chief Justice John Roberts saying: “We’ll give you an extra 30 seconds. Proceed.”
So the court followed precedent this February when it declined to acknowledge Newkirk’s heckling in the transcript. But it departed from it in editing the audio. Why?
One possibility is that in 2006 there was no time. Normally the court waits until Friday to release transcripts and audio of the week’s oral arguments. But because of intense public interest in Carhart (and another abortion case it was hearing the same day), it made an exception and announced that “the audio recording will be released shortly after the conclusion of each of the arguments.”
The other possibility is that the court felt no need to deprive the Carhart heckler of further attention because, unlike Newkirk, he didn’t get much. The Times news story on the arguments took no note of the disruption, nor did the paper’s editorial a few days later. Perhaps the writers and editors eight years ago had more respect for the court, or maybe they were happy to ignore a heckler whose views they found disagreeable. Either way, it’s hardly surprising that the justices would be protective of the court’s decorum, especially when it’s under attack by the news media.