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 DAVID SOUTER 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- the nation’s UNITED STATES 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 Clarence Thomas, 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 OCTOBER 1937 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: CHARLES EVANS HUGHES, LOUIS BRANDEIS, PIERCE BUTLER, 99Rise. Our purpose here is to discuss OWEN ROBERTS, AND HUGO BLACK. 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 HORACE GRAY 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 jurisprudence — 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 American Bar Association 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.