Tag Archives: democracy

Identifying the Clandestine Videos of Supreme Court Oral Arguments Posted Online [UPDATED]

Noah Newkirk of Los Angeles made national headlines yesterday when he interrupted an oral argument in the Supreme Court with a protest over the Court’s 2010 decision in Citizens United v. Federal Election Commission. Newkirk, who had been admitted into the courtroom as a spectator, stood up and made his statement toward the end of arguments for Octane Health LLC v. Icon Health and Fitness, Inc.–a case that involved patent attorneys’ fees, not campaign finance–before being promptly removed by security. Because cameras are not permitted in the courtroom and the Supreme Court does not broadcast its oral arguments live, initial media accounts of the disruption either summarized or quoted only snippets of what Newkirk reportedly said, while the court’s official transcript of the Octane oral argument left out the protest entirely.

Thanks to new video released by a YouTube user named “SCOTUSpwned,” however, we can now see footage of Newkirk’s protest in full, which was clandestinely recorded (and captioned) by an anonymous person sitting in the spectators’ section with Newkirk yesterday. In addition, SCOTUSpwned also posted five other secretly-made videos from two different Supreme Court oral arguments from this term, ranging from four seconds to half an hour in length. I’ve watched all of them and identified the relevant oral arguments where I can, which I describe below. We begin with the first video that SCOTUSpwned uploaded:

Video 1 (MOVI0000) – Timestamped 10/08/13

Burt v. Titlow (argued 10/08/2013): 16 minutes into the video, you hear one of the attorneys, John J. Bursch, say, “[Y]ou can see how that difference played out in this very case because the Sixth Circuit didn’t look at all the other evidence …,” which matches page 55 of the transcript of the Titlow oral argument.

Video 2 (SUNP0000) – Timestamped 1/25/08 

It is inconclusive where this was taken, since the video only lasts 4 seconds. Based on the timestamp, however, I believe this was recorded during the same session, by the same person, as Video 4 (which was of the Burt v. Titlow oral argument; see below).

Video 3 (MOVI0036) – Timestamped 1/1/2008

Octane Fitness v. Icon Health & Fitness (argued 2/26/2014): 34 seconds into the video, you can hear attorney Carter G. Phillips say, “And then when Congress, in 1952, incorporates the exceptional case standard…” which matches the argument on p. 32 of the transcript.

Video 4 (SUNP0001) – Timestamped 1/25/2008

Burt v. Titlow (argued 10/08/2013): Around 38 seconds into the video, Valerie Newman says, “It appears from the record that he got his information from the media. This was a highly, highly publicized case,” which corresponds with p. 50 of the transcript.

Video 5 (SUNP0019) – Timestamped 6/14/2008 

Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): 50 seconds in, Roman Martinez says, “Here Congress did not say otherwise. Congress did not embrace a clear and convincing standard,” which matches the dialogue on p. 26-27 of the transcript.

Video 6 (“Supreme Court caught on Video!”) – Timestamped 10/08/13 [UPDATED]

Burt v. Titlow (argued 10/08/2013), Octane Fitness v. Icon Health and Fitness (argued 2/26/2014): This video contains footage from two separate oral arguments. The first 1:10 is from Titlow–although it is mislabeled in the video as “the oral arguments… for the case McCutcheon v. FEC” (which was argued the same day as Titlow, but is not the same case). At the 50-second mark, we can hear Valerie Newman, Titlow’s attorney, say “She had already pled, so she had already entered a plea, and all that was left was sentencing,” which matches p. 50 of the argument transcript.  The last half of the video is from yesterday’s Octane Fitness v. Icon Health argument and includes Noah Newkirk (captioned as “Kai” in the video) asking the justices to overrule Citizens United. Newkirk waits until Carter G. Phillips says, “If there are no other questions, your honors, I’d urge you to affirm” (p. 48 of the Octane argument transcript) before standing up and protesting. The video then shows him being removed from the courtroom.  The anti-corruption grassroots group 99rise, of which Newkirk is a co-founder, took responsibility for the protest and issued a press release that included the full speech Newkirk made in court.

[UPDATE: The original version of this post misidentified the first minute and ten seconds of the video as coming from the McCutcheon v. FEC oral argument, in part due to the caption of the videographer and in part due to the fuzziness of the audio–I believed the female voice I heard was Erin Murphy, a lawyer for the McCutcheon appellants. Upon further audio analysis, however, I realized that the words the female attorney was saying matched up not with the McCutcheon argument transcript but the Burt v. Titlow transcript, and that the voice was Valerie Newman’s rather than Murphy’s. None of the six videos on SCOTUSpwned’s YouTube page are from McCutcheon v. FEC. I regret the error.]

As far as I can tell, these are the first videos of the Court in session to go public, sparking online discussion about the identity of the cameraman, the method they used in compiling this footage (what did they use to film the Court, and how did they get it past security?), and whether this incident might ultimately push the Supreme Court toward or away from allowing live broadcasts of its proceedings.

I’m also wondering whether we can expect a “sequel” from 99rise anytime soon. It appears from the differing timestamps and varying audio quality on some of the videos that multiple people managed to sneak devices in and film the Court (Video 1, for instance, bears the correct date for the oral argument in Burt v. Titlow but makes it difficult to hear the words of the attorneys because it captures mostly the breathing of the cameraman, whereas Video 4 of the same oral argument has an incorrect timestamp but much cleaner audio), but to date, only Noah Newkirk has been thrown out for causing a disturbance. It is unclear whether any other collaborators were caught recording the arguments during yesterday’s scuffles. Since the group obviously cares a great deal about the Court’s campaign finance jurisprudence and made a point to be physically present on the day of the McCutcheon argument (Burt v. Titlow, after all, was argued on the same day as McCutcheon), I’m guessing that they were at the Court yesterday because they believed that the justices were going to issue a ruling in McCutcheon. That didn’t turn out to be the case, but what will they have planned when the Court actually does, and how does Court staff plan to tighten security before that day comes?

A tale of two countries: Egypt, America, and the strangling of democracy

Charles Dickens’ classic novel, A Tale of Two Cities, begins with the immortal phrase, “It was the best of times, it was the worst of times.” And so it remains today. Nothing in the intervening century and a half, from the publication of Dickens’ Tale to the 2011 wave of protests rocking the Arab world, has changed the immutable veracity of that simple paradox.

Instead of two cities, however, I’m thinking of two countries. Let’s start with a simple thought experiment. One month ago, imagine if someone had predicted that, in Tunisia and Egypt, massive protest movements would emerge ex nihilo to shatter the status quo; that these movements would, furthermore, contain no traceable elements of radicalism or Islamism in any form; that, in Egypt, the Muslim Brotherhood, which the West has feared for so long, would at least initially linger in the shadows and allow the secular and leaderless crowds to lead the way; and that, finally, the demands of the protesters would remain eminently reasonable and, most significantly, democratic. Such a prognosticator would have been mocked relentlessly.

As it turns out, this has all taken place over the course of the last several weeks. And the American response? To hesitate, to triangulate, to hedge its bets according to the ever-shifting political winds, and — finally and most heartlessly — to work furiously behind the scenes to orchestrate a return to the pre-January 25 status quo while halfheartedly trumpeting the Egyptian revolution in the public sphere. Continue reading A tale of two countries: Egypt, America, and the strangling of democracy

#14: The Post-American World

Fareed Zakaria is a very reasonable man. In this sense, the contrast between him and the rest of mainstream American punditry is stark indeed. Coming from anyone else, a book with the title The Post-American World could plausibly entail an exercise in sensationalist doomsday forecasts; from Zakaria, we know that such is not the case. Some conservatives and patriots may disagree with the book’s contents, but it is impossible to dismiss as a self-loathing work of anti-nationalism.

Zakaria has the distinct privilege of combining his position of respect and influence within the court of American public opinion with the nuanced perspectives he has gained from his initial outsider status. In 1982, the author was an eighteen year-old Indian student on a flight to the United States, about to embark on a four-year educational journey in a country where he would eventually settle. “The preceding decade had been a rough one in India,” writes Zakaria, “marked by mass protests, riots, secessionist movements, insurgencies, and the suspension of democracy.”

But something has happened since then — in India, in China, and in many other nations as well. Zakaria calls this something “the rise of the rest,” as “countries all over the world have been experiencing rates of economic growth that were once unthinkable.” Unsurprisingly, given the title of his book, Zakaria is not merely interested in this economic phenomenon as a historical anomaly, but also as an indication of America’s rapidly changing role in the new era. In this, our twenty-first century edition of a brave new world, “the distribution of power is shifting, moving away from American dominance. That does not mean we are entering an anti-American world. But we are moving into a post-American world [emphasis in original], one defined and directed from many places and by many people.”

Instead of wallowing in national self-depression, however, Zakaria welcomes this new period. He notes that the American share of global GDP has remained relatively constant for decades; and he elucidates the truths hidden behind the alarmist (and often misunderstood) statistics about American decline. But while Zakaria’s prognostications leave plenty of space for a bright future, his is not a utopian vision unencumbered by hard facts. (One notable exception is his diagnosis of the American economy: “The economic dysfunctions in America today are real, but, by and large, they are not the product of deep inefficiencies within the American economy.” The first edition of his book was printed in April 2008, just months before the economy bottomed out; a later paperback edition included a new preface predicting that “the current economic upheaval will only hasten the move to a post-American world.”) Indeed, Zakaria levels criticisms in a variety of areas, decrying the United States’ “highly dysfunctional politics,” acknowledging that “the American school system is in crisis,” and dubbing the nation an “enfeebled” superpower. In his final chapter, “American Purpose,” Zakaria asks, “How did the United States blow it? [It] has had an extraordinary hand to play in global politics…Yet, by almost any measure…Washington has played this hand badly. America has had a period of unparalleled influence. What does it have to show for it?”

That is a question whose answer will depend on the person, but Zakaria’s prescription for American healing, while hardly groundbreaking, is based in historical precedent: more multilateralism. Contrary to some who argue that idealism is always the refuge of lesser nations while realpolitik is embraced by hegemons, Zakaria points out that the United States “was the dominant power at the end of World War II, when it founded the United Nations, created the Bretton Woods system of international economic cooperation, and launched the world’s key international organizations. America had the world at its feet, but Franklin Delano Roosevelt and Harry Truman chose not to create an American imperium.”

Interestingly, Zakaria’s ideas have found traction in the administration of President Barack Obama. The results are mixed: Obama’s extended hand to Iran was met with a clenched fist and the Palestinian-Israeli conflict has been left largely unaffected, but Obama was able to broker a deal between the heads of the Chinese and French states at the G-20 summit, and the United States and Russia recently finalized a nuclear arms reduction deal. It remains to be seen exactly what will follow from the American presidency’s renewed emphasis on diplomacy, but early returns indicate some potential for positive results. We may live in a post-American world, but if Fareed Zakaria has any say in the theater of global politics, the United States will be far from playing a bit role.