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Home , Hugo Black, Owen Roberts, Pierce Butler (justice), Willis Van Devanter

60 VOL. 99 NO. 2 NEW YORK DAILY NEWS / GETTY IMAGES NEWS / GETTY DAILY YORK NEW JUDICATURE 61

ON MAR. 28, 1996, JUSTICES There have been efforts to intro- these two sessions were combined AND ANTHONY duce cameras into the U.S. Supreme into one video clip. This video depicts KENNEDY testified before a House Court by members of the press since part of the McCutcheon oral argument, Appropriations subcommittee to at least the 1970s,3 and on numerous and then cuts to arguments in Octane discuss the Supreme Court’s budget occasions Congress has tried to pass Fitness, when a 99Rise protester, Kai for the upcoming fiscal year. Souter, legislation permitting cameras in the Newkirk, interrupts the proceedings appointed by President George H.W. Supreme Court.4 At the start of the to denounce the Court’s decision in Bush, was known as a soft-spoken 114th Congress, at least one pending Citizens United v. FEC.10 Nearly a year justice who typically kept out of bill proposed introducing cameras later, on Jan. 21, 2015 — the fifth the limelight. When he and Justice in the high court.5 So far, all of these anniversary of the Citizens United deci- Kennedy were asked of the possibil- efforts have failed. However, the fact sion — seven members of 99Rise inter- ity of televising U.S. Supreme Court that members of Congress still intro- rupted the start of the Court’s session proceedings, Souter responded unchar- duce legislation on this topic, and that to, once again, protest the Citizens acteristically: “I can tell you the day you prominent legal scholars and practi- United decision. This most recent see a camera disruption was come into our captured by courtroom, it’s hidden camera, going to roll but viewers over my dead SHOOTING FROM could not see body.”1 any Justices Justice in the video Kennedy THE HIP frame; the agreed that video depicts introducing the Supreme cameras into CONCEALED CAMERAS IN THE Court cham- ’s SUPREME COURT ber and Chief highest court Justice John was a bad Robert’s voice 11 idea. In justi- By Kyle C. Kopko and Erin Krause is audible. In fying their each instance, responses, the demonstra- Justice Souter claimed that when he tioners have argued for cameras in the tors were promptly removed from the was a judge in New Hampshire, he Court,6 demonstrates a continuing Supreme Court chamber by Supreme altered his behavior when a camera demand by some individuals for visual Court police and charged with various was in the courtroom out of fear that access to Supreme Court proceedings. criminal offenses, including violating his comments would be taken out of Recently, and despite restrictions 40 U.S.C. § 6134 for “mak[ing] a context. Justice Kennedy explained on cameras in the Supreme Court, the harangue or oration, or utter[ing] loud, that by excluding cameras from the public received its first video glimpse threatening, or abusive language in the Supreme Court, the Justices signaled of the Court in session. A group named Supreme Court Building or grounds.”12 to the public that the Court was 99Rise — an organization affiliated While these security breaches repre- fundamentally different from the other with the Occupy movement — smug- sent the first time that a session of the political branches of government. Ten gled a hidden video camera into the Supreme Court was recorded with a years later, Justice Kennedy, along with Supreme Court on at least three differ- video camera, it was not the first time Justice , reaffirmed ent occasions.7 They did so first on an observer smuggled a camera into the this position when testifying before the Oct. 8, 2013, to film part of the oral high court to document the justices in House Appropriations subcommittee arguments in McCutcheon v. FEC,8 and action. Scholars have usually acknowl- on transportation, treasury, judiciary, then again on Feb. 26, 2014, during edged that there are one13 or two14 and housing and urban development, the oral arguments of Octane Fitness photographs of the Supreme Court in which handles the Court’s budget.2 v. Icon Health & Fitness.9 Segments of session. There are, however, at least three known photographs in existence, IMAGE AT LEFT: THE FIRST DAY OF THE TERM, AS PUBLISHED IN THE OCT. 5, 1937, EDITION OF THE DAILY in addition to the videos captured by NEWS. THE JUSTICES, APPEARING FROM LEFT TO RIGHT, ARE: , , , 99Rise. Our purpose here is to discuss , AND . how these three images of the Court 4 62 VOL. 99 NO. 2

— all taken in the 1930s — came into snap shot at Mr. Associate Justice Horace existence and discuss a potential expla- It is said that the dignified Gray of Massachusetts while he was nation as to why cameras were origi- members of that high judi- “dozing” on the bench. Judges of the nally banned from the Supreme Court. Supreme Court frequently take “forty This article also represents the first “cial tribunal were deeply winks” during the arguments if the talk time all three images are published mortified recently by the happens to be uninteresting but they together. As we detail in the following manage to conceal the fact from all but sections, the history of these images report that a kodak fiend the closest observers. Justice Gray is is unique, and each image provides a took a snap shot at Mr. the tallest member of the court and for rare glimpse inside the most secretive that reason he is, the most conspicuous; branch of government. Associate Justice Horace besides he has a peculiarly shaped head, Gray of Massachusetts which always attracts attention and elic- JUSTICE ASLEEP its comment from visitors. ON THE BENCH, 1895 while he was ‘dozing’ on Unfortunately for Mr. Justice Gray he A former chief justice of the is more given to “nodding on the bench” Massachusetts Supreme Judicial Court, the bench. Judges of the than any of his associates, and when he Horace Gray took his seat on the U.S. Supreme Court frequently takes a nap his head falls low upon his Supreme Court in 1882 and served breast, his mouth hangs open, and he on the bench for 20 years. During his take ‘forty winks’ during could not truthfully be called a “sleeping tenure, Gray wrote several notable the arguments if the talk beauty.” It was during one of his naps that opinions that contributed to the Court’s the kodak fiend got in his work. Naturally body of constitutional — happens to be uninterest- Mr. Justice Gray is very sensitive on the including majority opinions that upheld ing but they manage to subject, and he was further mortified one the use of paper money in peacetime,15 day by receiving a severe reprimand from struck down unapportioned income conceal the fact from all his wife. She had taken some friends to taxes implemented by the Income but the closest observers.” the capitol to witness the proceedings Tax Act of 1894,16 and interpreted the of the court, but principally to show off Citizenship Clause of the Fourteenth her husband in his rich silk gown. It so Amendment,17 among many other cases. Court. But, according to a news account happened that the case pending before the Perhaps Justice Gray’s most import- from the late 1800s, Justice Gray was court was dull and the attorneys uninter- ant institutional contribution was also responsible for another important esting, so that when Mrs. Gray and her the introduction of law clerks at the institutional contribution to the U.S. friends entered the courtroom Judge Gray Supreme Court. In Massachusetts, Supreme Court — the Court’s ban on was sound asleep in his chair.21 Gray had hired clerks to assist him in photography and cameras. carrying out his judicial duties, and he Previous research indicates that While it is difficult to say if these continued to do so when appointed to the judiciary has resisted cameras in events took place in the manner the the U.S. Supreme Court. While early the courtroom since 1937, when the unnamed author describes — and it is law clerks primarily completed clerical adopted important to note that such a photo- tasks on behalf of their justice, Gray’s Canon 35.19 However, there is evidence graph has never publicly surfaced clerks took a more expansive role. to suggest that a ban on cameras in the — this unflattering account was Scholars have noted, “Gray was the Supreme Court occurred years earlier. nonetheless reprinted in a number of first [Supreme Court justice] to request On Nov. 17, 1895, the newspaper The newspapers throughout the United that his clerks draft opinions for cases, Sun printed an article titled The Supreme States.22 If accurate, this article although the drafts were only used to Court Bars Kodaks: A Snap Shot Taken at suggests that the ban on cameras in the stimulate Gray’s own writing. Gray Justice Gray While he was Dozing on the Supreme Court occurred in reaction to also debated his clerks regarding the Bench.20 Here is the full text: an embarrassing situation; it may have cases before the Court, and expected been intended as a means of protecting the clerks to defend their views.”18 The Visitors and tourists to Washington the justices from similar circumstances role of Gray’s law clerks, in many ways, are not allowed to take kodaks into the in the future. This stands in contrast to resembles the duties of modern clerks Supreme Court room. It is said that the the reasons that contemporary justices at the Supreme Court, and therefore dignified members of that high judicial of the Supreme Court cite to justify constitutes an important contribution to tribunal were deeply mortified recently a ban on video cameras — specifi- the internal operations of the Supreme by the report that a kodak fiend took a cally, the justices might be forced to JUDICATURE 63 (BERLINISCHE GALERIE, GERMANY) (BERLINISCHE GALERIE,

THE FIRST PUBLICLY PUBLISHED PHOTOGRAPH OF THE U.S. SUPREME COURT IN SESSION, TAKEN BY ERICH SALOMON IN 1932 AND PUBLISHED IN THE OCTOBER 1932 ISSUE OF FORTUNE MAGAZINE. THE JUSTICES, APPEARING FROM LEFT TO RIGHT, ARE: OWEN ROBERTS, PIERCE BUTLER, LOUIS BRANDEIS, , CHARLES EVANS HUGHES, , HARLAN FISKE STONE, AND BENJAMIN CARDOZO. change their behavior out of fear that cal publishing company and began to camera’s shutter. The method enabled their comments will be taken out of experiment with photography. “His him to capture something wholly human context.23 big break came in 1928 when he snuck in Europe’s elite . . . [Salomon] was expert Regardless, this story is the first his small glass plate Ermanox camera at evading security, and he snuck his reported instance where the Supreme into several high-profile criminal camera into numerous social and political Court suspected that a session of oral trials, and the pictures were published functions using hats, diplomatic pouches, arguments had been photographed, and internationally.”24 This was just the even an arm sling to disguise his gear.27 the Court then took action to ensure first of many clandestine photo shoots that the event would not repeat itself. by Salomon, who also snapped shots In fact, it was an arm sling that But more than 30 years later, three of diplomatic meetings in The Hague facilitated the first publicly published other observers would smuggle a camera and sessions of the League of Nations.25 photographs of the Supreme Court in into the Court’s chamber during oral Although Salomon would fall victim session; Salomon faked a broken arm arguments. This time, however, the to the Nazis — he lost his life in 1944 to conceal the camera when he visited images would be made public. when imprisoned in the Auschwitz the Court in 1932.28 Salomon’s photo- concentration camp — his photographs graphs of the Court appeared in the DR. ERICH SALOMON IN THE still received international acclaim October 1932 edition of Fortune maga- OLD SENATE CHAMBER, 1932 decades after his death. zine, in an article titled The Supreme The first and only publicly identified Salomon made a name for himself Court Sits. At the time, the Supreme person to take a still photograph of throughout Europe. He captured Court met in the Old Senate Chamber the Supreme Court in session was the images of government officials in within the U.S. Capitol Building; the celebrated German photojournalist, unscripted moments, where they current Supreme Court building would Erich Salomon. Salomon earned a clearly were not posing for the camera. not open until 1935. The Fortune doctorate in law from the University Salomon’s work was described as article included three photographs of Munich in 1913 and shortly there- “candid” photography, or that he used taken by Salomon. One photograph after was drafted into the German a “candid camera.” Those labels still depicts eight members of the Court armed forces during . apply to this genre of photography hearing arguments in the spring of While fighting during the war, he today,26 as do Salomon’s tactics: 1932 — Justice James C. McReynolds was captured and spent several years was absent during this session of the in a French prisoner-of-war camp. In He typically waited for a gesture, like Court.29 The second photograph in the the mid-1920s, following his release, a yawn or the lighting of a cigarette, article depicts a decorative eagle and Salomon secured a job with a periodi- before using a cable release to trigger his clock located above the bench, while 4 64 VOL. 99 NO. 2 TIME & LIFE PICTURES / GETTY IMAGES / GETTY TIME & LIFE PICTURES

THE SUPREME COURT IN SESSION (MAY 1937) AS ORIGINALLY PUBLISHED IN THE JUNE 7, 1937, EDITION OF TIME MAGAZINE. THE JUSTICES, APPEARING FROM LEFT TO RIGHT, ARE: OWEN ROBERTS, PIERCE BUTLER, LOUIS BRANDEIS, WILLIS VAN DEVANTER, CHARLES EVANS HUGHES, JAMES MCREYNOLDS, GEORGE SUTHERLAND, HARLAN FISKE STONE, AND BENJAMIN CARDOZO. the third photograph is a blurry depic- Erich Salomon) requested permission Van Devanter’s pending retirement. tion of the full Court. The Fortune arti- to photograph the Court, his request The article depicts the final day of the cle described the work of the justices was denied, but he did so regardless. Court’s term and noted: and their routines as they prepared for As such, he was barred from future oral arguments. The article also praises entrance to the Court. Second, this [The Justices] looked unusually the justices for their hard work in the article also claims that the Supreme cheerful and healthy. Even dour Justice October term of 1931: “for the first Court issued an official ban on cameras. McReynolds was smiling as if he had time in years, the Justices have been While there is no reason to doubt swallowed some kind of canary. But all getting through the docket in record this account, it is curious that such an eyes were on Justice Willis Van Devanter, time — 884 cases disposed of last year, action was warranted given that earlier whose retirement was to become effective with cases reached in six weeks instead news reports indicate that the Court next day. He came in pink cheeked, with of two years.”30 barred photographs in the late-19th a lovely stride, his gown open showing Apparently, members of the Court century. This suggests that the news his white shirt front. As he took his seat, were not pleased with the publication story of Justice Gray sleeping on the he nodded to one or two acquaintances of these images. An undated newspaper bench may have been fabricated, or below, then settled back chewing gum clipping obtained from the Supreme perhaps members of the Court in 1932 with undisguised contentment.33 Court Curator’s Office, titledCourt did not realize that a ban was imple- Bars Cameras, was printed sometime mented 37 years earlier. Unfortunately, This photograph was taken during after the release of the Fortune magazine it is impossible to say with certainty an afternoon sitting of the Court in article. The article reports that in reac- which account is true given the limited May of 1937. While Erich Salomon tion to these photographs, the Supreme historic record that has survived. hid his camera in an arm sling to Court issued a ban on cameras. Here is Nonetheless, it is the case that photograph the Court in 1932, this the full text of the article: Salomon was the first person to provide time a woman concealed a camera in the public with an insider’s view of the her purse. In discussing the photo- As a result of the publication of a U.S. Supreme Court. graph, the article states: photograph of the court on the bench, taken with a concealed camera, an official AN ENTERPRISING AMATEUR How this famed Court appeared only a ban was ordered yesterday on all interior IN THE “NEW” SUPREME short time before its final session will be pictures of the Supreme Court in session. COURT BUILDING, MAY 1937 well preserved for history by the accom- The photographer who took the picture The second photograph of the Supreme panying photograph. It is the second causing the ban, after he had been refused Court to publicly surface was printed photograph ever taken of the Supreme permission to photograph the court, will in the June 7, 1937, edition of Time Court in actual session, and the only one be denied further admission to the court.31 magazine, in an article titled Judiciary: showing the Justices in their new cham- Farewell Appearance.32 The article ber. The other, taken five years ago by Although very brief, this news discussed the close of the Court’s Dr. Erich Salomon, made its first appear- article provides important historic historic 1936 term — in which ance in TIME Inc. publications as does information about the ban on cameras Justice Owen Roberts voted with this, taken last month by an enterprising in the Supreme Court. First, this arti- liberal justices to uphold key New amateur, a young woman who concealed cle claims that the photographer (i.e., Deal policies — and Justice Willis her small camera in her handbag, cutting JUDICATURE 65

a hole through which the lens peeped, reported that 59 percent of respondents judicial retirement pension, Black’s resembling an ornament. She practiced believed that Black should resign his appointment violated the Emoluments shooting from the hip, without using seat on the Supreme Court if he still Clause of the U.S. Constitution the camera’s finder, which was inside the was a member of the KKK.37 Under (Article I, Section 6, Clause 2).40 Under purse, before achieving the result.34 immense pressure from reporters — the latter argument, Black would be In reaction to the Court’s ban on some of whom hounded Black and ineligible to accept a position on the photography while in session, Time his wife as they vacationed in Europe Court at least until January of 1939, magazine did not identify the photog- before the start of the Court’s term — which coincided with the end of his rapher by name. The only information Black made his historic radio address. term of office in the U.S. Senate.41 known about the photographer appears He admitted to once having been According to the Daily News article, in the previous quoted paragraph. a member of the KKK, but he said when Kelly first interrupted the admis- This image is also the first time that that he had resigned his membership sion proceedings, Chief Justice Hughes all nine members of the Court were and denied that he was biased toward “with his celebrated benignancy, said, photographed in session. Following minority groups.38 While the speech ‘You are out of order.’”42 Once the the publication of this article, just four did cause a swing in public opinion — admissions proceedings concluded, months later, the third — and to date, a subsequent Gallup poll showed that Kelly once again rose to address the final — still photograph of the Court in 56 percent of respondents believed that Court. He began, “In a point of personal session was published in a news outlet. he should remain on the Court — not privilege as a member of this bar.” “Is everyone was pleased that Black, a your motion in writing?” the Chief JUSTICE HUGO BLACK’S FIRST staunch supporter, would Justice sternly replied. The Daily News DAY ON THE BENCH soon begin service as a justice. Among article details what transpired next: To date, no article has identified the those not pleased with Black’s new role third and last-known still photograph as an associate justice included two Kelly volubly began to explain it was of the Supreme Court to be publicly members of the Supreme Court Bar — not, but that he had written each Justice disseminated. On Tuesday, Oct. 5, Patrick Henry Kelly and . a letter. Hughes’ tone became acid and 1937, New York’s Daily News featured As the Court session began on Oct. plain clothes officers moved up from the a front-page story titled Black Takes 4, Chief Justice Hughes admitted rear of the room ready for action. Supreme Court Seat, by Dorris Fleeson.35 new members to the Supreme Court “Please put the motion in writing The image depicted the Court sitting Bar. Kelly, an attorney from Boston, and submit it,” Hughes said sharply. for proceedings on the previous day — interrupted the proceedings on behalf “Oral statements are not permitted on a the start of the 1937 term. This, too, of himself and Levitt, a former federal motion of that character.”43 was the first time that Justice Hugo district judge for the U.S. Virgin Black sat for a session of the Court. Islands. The tactic and the subject of The motion was put in writing by Undoubtedly, this was a tumultuous their motion was brazen and unfathom- Albert Levitt, and the Court ruled on first day for the famed justice. able by contemporary standards — they the motion seven days later, on Oct. Just three days earlier, on Oct. 1, sought to block Justice Black from 11, in a per curiam decision.44 The Justice Black delivered an unprec- taking his seat on the Supreme Court — Court dismissed the claim for lack of edented, nationally broadcast radio and their claim was novel and technical. standing. In the Court’s determination: address to discuss allegations that he In the Act of March 1, 1937, was an active member of the Ku Klux Congress provided a pension for The motion papers disclose no interest Klan (“KKK”).36 Although Black had justices who retired at age 70.39 Justice upon the part of the petitioner other than been accused of being a member of the Van Devanter took advantage of this that of a citizen and a member of the bar KKK when the U.S. Senate took up retired status when he resigned from of this Court. That is insufficient. It is his nomination to the Supreme Court, the Court in June of 1937. In Kelly an established principle that to entitle a Black had denied that he was currently and Levitt’s view, Justice Black could private individual to invoke the judicial a member. But a series of articles not serve on the Supreme Court power to determine the validity of exec- printed in the Pittsburgh Post-Gazette because 1) Justice Van Deventer was utive or legislative action he must show in September of 1937 suggested that still, technically, a member of the that he has sustained or is immediately in Black relied on KKK connections Court (albeit a “retired” justice) and danger of sustaining a direct injury as the to gain a seat in the U.S. Senate and therefore no vacancy existed for Black result of that action and it is not suffi- that he was still a member of the to fill, and 2) because the Act of March cient that he has merely a general interest organization. These articles caused a 1, 1937, resulted in an increase in common to all members of the public.45 sharp public outcry, and a Gallup poll emoluments with the creation of a 4 66 VOL. 99 NO. 2

This decision ended the controversy the Court,48 the introduction of cameras of videos less likely to occur, but it over Justice Black’s membership in the in the Supreme Court will likely be remains to be seen if future security KKK, a most unusual series of events a recurring debate among legislators, breaches will be prevented. documented by the Daily News article journalists, the public, and members of What the group 99Rise did in 2014 and its accompanying photograph. the Court for years to come. and 2015 was unique in that they Unfortunately, the article does not Perhaps most surprising is the fact interrupted the Court’s proceedings, provide any information about the that more photographs of the Court in and criminal charges were filed against photographer or the means by which session have not appeared in the popu- these individuals as a result of their the photograph was taken. However, it lar press between the publication of actions. But as the historical evidence is virtually certain that the camera was the Oct. 5, 1937, edition of the Daily indicates, their efforts to smuggle concealed in a manner similar to the News and the videos released by 99Rise cameras into the Supreme Court were two previous photographs taken in the in 2014. Despite the technological far from original. It may be the case spring of 1932 and May of 1937. This advancements that occurred during that until, and if, the Supreme Court would be the last time that a news that time, there was, nonetheless, a decides to televise its proceedings, outlet published a still photograph of photographic dry-spell that lasted for there will always be the possibility of the Supreme Court in session. more than three-quarters of a century. individuals trying to capture images With the recent video shot by 99Rise of the Court conducting its business. CONCLUSION using a camera pen, it may be the case In the meantime, short of visiting the These three photographs provide a that the public can expect more of Supreme Court in person, these images depiction of the U.S. Supreme Court these images and videos to surface in and videos are the only opportuni- from a bygone era. If anything, the the coming years. Certainly, increased ties for most Americans to see what images and their companion articles security at the Supreme Court will happens during a session of the U.S. demonstrate that, historically, there make the possibility of these types Supreme Court. has been a clear demand for greater visual access to the Supreme Court. KYLE C. KOPKO ERIN KRAUSE Undoubtedly, these images were the is an Assistant is a candidate for only opportunity that many Americans Professor of a B.A. in Political had to see the Court in action. Even Political Science, Philosophy & Legal today, 78 years since the last still and Director of Studies and English photograph of the Court in session the Honors and Professional was published, there is demand from Pre-Law Programs Writing at 46 members of Congress and interest at Elizabethtown Elizabethtown 47 groups for greater visual access to College. College. the Supreme Court. Given that justices continue to resist the call for cameras in

1 Departments of Commerce, Justice, and State, Cameras, N.Y. Times (Oct. 2, 2011), available at Footage), YouTube (Feb. 26, 2014), http:// the Judiciary, and Related Agencies Appropri- http://www.nytimes.com/2011/10/03/opinion/ youtu.be/2K-8FJ114kU (last visited May 1, ations for 1997, Hearings Before a Subcomm. open-up-high-court-to-cameras.html?_r=0; 2015). It appears that three cameras were of the House of Rep. Comm. on Appropria- Dahlia Lithwick, Amicus: Cameras in the used to create this video footage. See Eric P. tions, 104th Cong. 31 (1996); see On Cameras in Courtroom, Slate (Jan. 31, 2015), http://www. Robinson, With Cameras Banned in the Supreme Supreme Court, Souter Says, ‘Over My Dead Body’, slate.com/articles/podcasts/amicus/2015/01/ Court, Undercover Video Emerges, Digital N.Y. Times, Mar. 30, 1996, at A24. the_u_s_supreme_court_s_camera_controversy. Medial L. Project (Feb. 28, 2014), http:// html. www.dmlp.org/blog/2014/cameras-banned-su- 2 Linda Greenhouse, 2 Justices Indicate Supreme preme-court-undercover-video-emerges. Court Is Unlikely to Televise Sessions, N.Y. Times, 7 News reports indicate that the group was able Apr. 5, 2006, at A16. to record portions of the Court’s proceedings 11 See Rise Supreme Court Protest, YouTube (Jan. 23, “using a pen that doubled as a video camera” 2015), http://youtu.be/pvW_x80O40s (last 3 Richard Salant, Broadcasting Supreme-Court Jessica Gresko, New Charges for Group that visited May 1, 2015). Proceedings, N.Y. Times, Nov. 16, 1977, at A29. Disrupted Supreme Court, ABC News (Feb. 26, 12 40 U.S.C. § 6134 (2002). 4 Brandon Smith, The Least Televised Branch: A 2015), http://abc27.com/ap/new-charges-for- Separation of Powers Analysis of Legislation to Televise group-that-disrupted-supreme-court/. 13 David M. O’Brien, Storm Center: The the Supreme Court, 97 Geo. L.J 1409, 1434 (2009). Supreme Court in American Politics 133 8 134 S. Ct. 1434 (2014). (9th ed. 2011) 5 See Cameras in the Courtroom Act, H.R. 94, 9 134 S. Ct. 1749 (2014). 114th Cong. (2015). 14 See Sonja West, Smile for the Camera: The Long 10 558 U.S. 310 (2010). To view the video, see Lost Photos of the Supreme Court at Work—and 6 See Kenneth W. Starr, Open Up High Court to Supreme Court Caught on Video! (Hidden Camera What they Reveal, Slate (Oct. 1, 2012), http:// JUDICATURE 67

www.slate.com/articles/news_and_politics/ behind_the_news/how_does_a_lady_get_any_ 39 John F. O’Connor, The Emoluments Clause: An jurisprudence/2012/10/the_supreme_court_ sleep.php?page=all; Joe Kovacs, Snorer in the Anti-Federalist Intruder in a Federalist Constitu- forbids_cameras_in_the_courtroom_but_ Court? Snoozes, World tion, 24 Hofstra L. Rev. 89 (1995). twice_rogue_photographers_have_snapped_a_ Net Daily (Mar. 1, 2006), http://www.wnd. 40 The clause reads: “No Senator or Representa- picture_of_the_justices_at_work_.single.html. com/2006/03/35058/; Dana Milbank, The tive shall, during the Time for which he was Justices Look at Some Shapely . . . Congressional 15 See Juilliard v. Greenman, 110 U.S. 421 (1884). elected, be appointed to any civil Office under Districts, Wash. Post (Mar. 2, 2006), http:// the Authority of the United States, which shall 16 See Pollock v. Farmers’ Loan & Trust Co., 157 U.S. www.washingtonpost.com/wp-dyn/content/ have been created, or the Emoluments whereof 429 (1895); Pollock v. Farmers’ Loan & Trust Co., article/2006/03/01/AR2006030102267.html. shall have been increased during such time; and 158 U.S. 601 (1895). Presumably, a video recording of the Court’s no Person holding any Office under the United proceedings would have definitely confirmed 17 States, shall be a Member of either House See United States v. Wong Kim Ark, 169 U.S. 649 if Ginsburg did, in fact, fall asleep. If so, such during his Continuance in Office.” (1898). images would likely be disseminated widely 18 Artemus Ward & David L. Weiden, through the news media and social media. 41 For a thorough discussion of this topic, see D.O. McGovney, Is Hugo L. Black a Supreme Sorcerers’ Apprentices: 100 Years of Law 24 Kevin S. Reilly, Erich Salomon, in Encyclope- Court Justice De Jure?, 26 Cal. L. Rev. 1 (1937). Clerks at the United States Supreme dia of Twentieth-Century Photography Court 34 (2006); see also Todd C. Peppers, (Lynne Warren ed., 2006). 42 Fleeson, supra note 35, at 2. Courtiers of the Marble Palace: The Rise and Influence of the Supreme 25 Id. at 1382. 43 Id. Court Law Clerk 43–47 (2006). 26 See Alma Davenport, The History of 44 , 302 U.S. 633 (1937). 19 See Smith, supra note 4, at 1412. Canon 35, as Photography: An Overview 96 (2000); 45 Id. at 636. adopted in 1937 and amended in 1952, states Helmut Gernsheim, Dr. Erich Salomon 1886- “The taking of photographs in the court room 1944: Historian with a Camera, in Creative 46 In recent years, there has been bipartisan . . .and the broadcasting or televising of court Camera: 30 Years of Writing 48 (David support for introducing cameras into the proceedings are calculated to detract from the Brittain ed., 1999). Reilly, supra note 24, at Supreme Court in both the House and Senate. essential dignity of the proceedings . . . [and] 1382. See, e.g., Sam Baker, Sens. Leahy, Grassley Call degrade the court . . . and should not be permit- 27 Reilly, supra note 24, at 1382. on Supreme Court to Televise Healthcare Ruling, ted.” Canon 35 of the ABA Code of Conduct. The Hill (June 19, 2012), http://thehill.com/ 28 See West, supra note 14, at 2012a, 2012b. policy/healthcare/233471-leahy-grassley-want- 20 Other scholars have suggested that this article supreme-court-to-televise-healthcare-ruling; appeared as early as 1886, see Michael 29 Based upon personal correspondence with the Amy Howe, Congress Again Considers Cameras Kammen, A Machine that Would Go of Curator’s Office at the United States Supreme in the Courtroom – Including at the Supreme Court, Itself 195 (2006); John H. Garvey, The Value Court, it is likely that Dr. Salomon’s photo- SCOTUSBlog (Dec. 4, 2014), http://www. of the Constitution, 22 Int’l Soc’y Barristers graphs were taken on either March 28 or May scotusblog.com/2014/12/congress-again-con- Q. 278, 296 (1987), but attempts to locate this 16, 1932. Those were the only dates that the siders-cameras-in-the-courtroom-including-at- article based upon citations in the scholarly Journal of the Supreme Court indicates that the-supreme-court/. literature have proven unfruitful. At the very Justice McReynolds was absent, after Justice least, we can definitively say that this story dates Cardozo joined the Court. 47 For example, the groups Fix the Court and to 1895, and possibly as early as 1886. Coalition for Court Transparency have both 30 The Supreme Court Sits, Fortune 110 (Oct. 1932). advocated for video cameras in the Supreme 21 The Supreme Court Bars Kodaks: A Snap Shot 31 See Court Bars Cameras (1932) (author and Court. In fact, Fix the Court even bought Taken at Justice Gray While He was Dozing on the publisher unknown) (obtained from Supreme television advertisements advocating for camera Bench, The Sun (Nov. 16, 1895), http://chron- Court Curator’s Office). access in advance of oral arguments in King v. iclingamerica.loc.gov/lccn/sn83030272/1895- Burwell. See Fix the Court, http://fixthecourt. 11-17/ed-1/seq-18. 32 Judiciary: Farewell Appearance, Time, June 7, com/ (last visited May 1, 2015); Coalition 1937, at 12. 22 For example, this story was reprinted in the for Court Transparency, http://www.open- Nov. 27, 1895, edition of the Warren Evening 33 Id. at 12. scotus.com/ (last visited May 1, 2015). Democrat (Warren, PA), the Nov. 30, 1895, 34 48 See Tal Kopan, Scalia: Cameras in Supreme edition of The Daily Democrat (Huntington, Id. at 12–13. Court would ‘Mis-Educate’ Americans”, Polit- IN), the Jan. 18, 1896, edition of The Weekly 35 Doris Fleeson, Black Takes Supreme Court Seat, ico (July 26, 2012), http://www.politico. Sun (San Bernardino, CA), and the January Daily News, Oct. 5, 1937, at 1–2. com/blogs/under-the-radar/2012/07/scal- 25, 1896, edition of the Eugene City Guardian 36 ia-cameras-in-supreme-court-would-misedu- (Eugene, OR), to name but a few. See John Anthony Maltese, The Selling of Supreme Court Nominees 102–104 cate-americans-130246.html; Matt Sedensky 23 It is also possible that if cameras were intro- (1998). & Sam Hananel, Supreme Court’s Kagan, duced into the Supreme Court, media may Sotomayor rethink support for cameras in more easily capture and disseminate embarrass- 37 William E. Leuchtenburg, A Klansman Joins the the courtroom, Wash. Post (Feb. 2, 2015), ing images of the justices. For instance, some Court: The Appointment of Hugo L. Black, 41 U. http://www.washingtonpost.com/politics/ media outlets reported that Justice Ruth Bader Chi. L. Rev. 1, 18 (1973). courts_law/supreme-courts-kagan-sotomay- Ginsburg fell asleep during oral arguments in 38 For an extensive analysis of Hugo Black’s or-rethink-support-for-cameras-in-the-court- 2006, and a Supreme Court sketch artist docu- connection to the , see Daniel room/2015/02/02/1fb9c44c-ab34-11e4-ad71- mented what appeared to be Justice Ginsburg M. Berman, Hugo L. Black: The Early Years, 8 7b9eba0f87d6_story.html sleeping. See Edward B. Colby, How Does a Lady Cath. U. L. Rev. 103 (1959), and Leuchten- Get Any Sleep Around Here?, Colum. Journal- burg, supra note 37. ism Rev. (Mar. 2, 2006), http://www.cjr.org/