“I have had positive experiences with cameras.”
— Judge Sonia Sotomayor
2009 confirmation hearings
“Looking at oral argument is not going to give you [an] explanation. The process could be more misleading than helpful.”
— Justice Sonia Sotomayor
If you’re reading this near your computer (or on your computer), go to Google and in the search window type “Supreme Court oral arguments.” Then click on the “images” tab. What you find will break into two categories — pictures of people standing or demonstrating in front of the Supreme Court building and drawings of the Justices and lawyers inside the courtroom.
What you won’t find are any actual pictures of oral arguments. And what you certainly won’t find- on Google, Youtube or anywhere else — is any video of the arguments before the Justices. That’s because the Supreme Court does not allow cameras in the courtroom during oral arguments and never has.
That’s not to say that cameras are foreign to courtrooms, or even to federal courtrooms. In a 2012 piece for Slate magazine Georgia law professor Sonia West noted that all 50 state court systems allow cameras in the courtroom and some lower federal courts do as well. The Canadian Supreme Court has allowed cameras for nearly 20 years.
In this age when nearly every electronic device has a camera built into it and tablet devices and phones can shoot high quality video it really is remarkable that no illicit photos or videos of oral arguments or of the Court announcing decisions have popped up on the internet through major news sources or anonymous video distribution services.
Perhaps even more amazing, the only two times that illegal photos have come out of the Court both happened prior to World War II. As West reports, the first instance was in 1932 when a photographer faked a broken arm and hid a camera in his sling. He took a single photograph, which was published in Fortune magazine. It shows nothing of note- the Justices sitting on the bench passively listening to the dissertation of an attorney who is not in the photograph.
In 1937 Time magazine published another hidden camera photo, this one taken by a woman who had hidden the camera in her purse and taken the photo through a hole cut in the side of the handbag. All nine Justices- and the attorney arguing before them- can be seen in this photo. It is, perhaps, most notable for the fact that Justice McReynolds is staring at the ceiling in the photograph.
This is not to say that there is no historical record of the arguments. Transcripts are kept and since the dawn of audio recordings the oral arguments have been recorded. Many of those audio recordings can be found online at www.oyez.org or on the Court’s own website. It is unclear what the Justices fear would be added to the historical record if we had pictures to go along with the audio.
What is clear is that many in Congress are not pleased with the current arrangement. The last eight Congresses have introduced legislation to try to force the Court to televise its proceedings. Of course, because the Court is a separate and co-equal branch of government, even if that legislation passed it would almost certainly be unenforceable. The good folks over at C-SPAN have asked for permission to televise every year for the last 25 years and are perennially turned down.
Even the Justices seem to have a change of heart when they get onto the bench. The last three appointed Justices, Samuel Alito, Sonia Sotomayor and Neil Gorsuch, have each indicated during their confirmation hearings that they are open to the possibility of cameras.
Sotomayor and Alito both backtracked on their statements after they were on the bench and had the experience of hearing cases (Gorsuch hasn’t been there long enough to do so). Sotomayor recently noted that courts speak through their written decisions and that cameras might be misleading if people tried to parse through the Justices questions during oral arguments (as some Court watchers, myself included, are wont to do).
C-SPAN will keep asking, Congress will keep pushing and the Justices, at least the current nine, seem inclined to keep declining. In the meantime, absent a fake broken arm or a cleverly doctored purse, the 76-year camera dry run is likely to continue.
David Hejmanowski is Judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas.