At 10:00 a.m., the words ring out:
The Honorable, the Chief Justice and the Associate Justices of the Supreme Court of the United States. Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!
It’s a curious tradition, reflecting the conflicted purpose of a court that was constituted to serve a newborn nation, whose purpose wasn’t entirely clear at first. But traditions are funny things, and so the words are repeated every day the Court is in session, term after term, year after year.
When they say “all persons having business before the Honorable, the Supreme Court,” one might hear an invitation. Need redress? They’re here for you, if you take this “admonition” literally, notwithstanding the pomposity of calling themselves “honorable.” After all, shouldn’t honor be something bestowed by others rather than claimed for oneself?
Perhaps a group of young, idealistic people took the opening that way. Perhaps they thought it was truly an invitation to speak to a branch of government comprised of nine lifetime appointees, who were answerable to no one provided they kept their bloomers up. Or perhaps they wanted to make a point and didn’t really give a damn.
The group, calling themselves 99Rise, has a mission to end the influence of big money on government:
99Rise is an activist group whose members believe that the government is not enacting “the progressive promise of the American Dream” because of Big Money in politics. According to its website, 99Rise has a Grand Strategy to stop Big Money.
To accomplish their goal, they stage protests within the Supreme Court courtroom. This is effective in getting some notoriety, and effective in pissing off the justices, who insist only they are entitled to be the center of attention.
There have been three protests so far. In each, one or more protesters stands up and starts speaking about 99Rise’s causes. The protesters are carried away by court security officers, and the event is filmed by someone else in the group who has brought a hidden video camera inside the courtroom. The video is then packaged up and released to the public for all interested parties to see.
It’s a very effective way to get massive publicity for their cause, particularly given the fact that they sneak video into a courtroom where video is absolutely forbidden.
The last of the three protests produced this video:
By a two-page information, the five members of the group who engaged in the January, 2015 protest have been charged with two misdemeanors under 18 U.S.C. § 1507 (picketing or parading in or near a United States Courthouse) and 40 U.S.C. § 6134 (making a “harangue or oration” inside the Supreme Court). At Volokh Conspiracy, Orin Kerr parses the charges:
First, I assume the protesters will argue that they that lacked the intent to interfere with the administration of justice. A quick skim of the caselaw suggests they’ll probably have a pretty good argument. The caselaw interpreting the “administration of justice” standard generally requires some intent to alter the timetable or result in a case.
Any offense requiring proof of the “administration of justice” strikes me as problematic from the outset, unless it’s adjudicated by a judge. In that case, silly details will sail silently over the court’s head.
On the other hand, I suspect the protesters will have a harder time arguing that they lacked the intent to influence judges in the discharge of their duties.
The irony here seems impossible to ignore. Is there not a profession consisting of many thousands of men and women whose sole purpose is to “influence judges in the discharge of their duties”? Hell, sometimes they even get paid for it. Double hell, sometimes they even get paid extra when they’re successful at it. Does this not make every one of us criminals?
Orin takes for granted, as indeed existing law would command, that the 99Rise protestors will be held to account for disrupting the solemnity and decorum of the Supreme Court, pondering instead the appropriate length of sentence. I suspect the individuals named in the information have taken for granted that they will be prosecuted, convicted and sentenced to something, and are well-prepared to do their time.
But this provides an opportunity for more devilish musing about whether the United States Supreme Court, defenders of our Constitution which specifically provides the rights of free speech and redress of grievances to citizens, should have the authority to punish the 99Rise folks.
The Nine constitute a branch of government, not an insignificant detail. While part of their job is to rise above politics, to defend the rights of the minority from the tyranny of the majority, meaning that the Court was crafted to be immune from the vicissitudes of popular opinion, that same immunity keeps the tyrannized minority at bay as well. Should it? Should the only voices the justices are constrained to hear be those of the well-known advocates of the Supreme Court bar?
And while they may not be complying with rules or tradition, what makes their efforts to “influence judges” criminal when the efforts of lawyers are lauded? Isn’t influencing judges the core function of the profession? If it’s wrong for them, how can it be right for us?
Assuming one isn’t a slave to order and decorum, the disruption caused by the 99Rise folks was trivial. More significantly, it was perhaps the only way a group that sought to have its say could be certain it was heard by those who they believed needed to hear them. Is that so wrong?
It’s absolutely irrelevant what political perspective was promoted by 99Rise (which means that’s not a subject for discussion here), but that United States citizens sought to be heard by a branch of government that controlled the issue at hand. Why not? Where else could they go to be heard? Why shouldn’t they be heard.
Certainly, the business of the Court could not be conducted if it was subject to anarchy in the courtroom, and it is beyond question that the business of the Court is of sufficient necessary as to be free of disruption. But that doesn’t eliminate the conundrum of a disaffected group seeking to be heard by those whose decisions will control the body politic. And if influencing judges is wrong, I don’t want to be right. But then, I’m a lawyer.