It might have been a late night before a day in court that lead to a unique Supreme Court policy. Or it could be the belief that those serving would change their behavior in fear that their comments would be taken out of context. Either way, banning cameras in the Supreme Court has stood the test of time, direct requests from legislators and members of the public and overt protest.
Dr. Kyle Kopko ’05 and Erin Krause ’16, recently published an article in the August edition of Judicature that examined this seemingly odd Supreme Court policy that prohibits the use of cameras in the Supreme Court chamber.
Kopko, assistant professor of political science and Director of the Honors and Pre-Law programs at Elizabethtown College, became interested in the subject while in graduate school at The Ohio State University. He originally wanted to locate an early Supreme Court photo and obtain the copyright to it as gifts for some of his professors who served on his dissertation committee. Kopko’s interest was further piqued after the Supreme Court Curator’s Office discovered several photographs of the Court in session within its collection.
“The more and more I learned,” he said, “the more I wanted to know why they banned cameras in the first place.”
… There was the story from 1895 about Justice Horace Gray falling asleep on the bench during oral arguments.”
Years later, at Elizabethtown, Kopko resurrected the idea. He discussed it with Krause, a political philosophy and legal studies and English professional writing major. She was looking to make her sophomore class into an honors course; to do so she had to perform additional work. “This is the paper I did,” she said.
“I really got into it.” Krause said. “I wanted to know why cameras were banned in the first place. … I didn’t know much about the topic going in, so I didn’t have expectations.”
There are, at present, at least three known photographs of the Supreme Court in existence. “The first and only publicly identified person to take a still photograph of the Supreme Court in session was the celebrated German photojournalist, Erich Salomon,” their article said.
Salomon worked for a periodical publishing company and began experimenting with photography. In 1928, he sneaked a small camera into several high-profile criminal trials. The subsequent photos were published internationally.
To get the photos, Salomon concealed the camera in a sling used for a faked broken arm. Later a woman would conceal a camera in a retrofitted purse.
At that time, there was no meaningful security in place, Kopko said. “You could easily get cameras into the courtroom.”
The reaction to Salomon’s photographs, it is said, caused the ban on cameras. However, an earlier news report, documented by Kopko and Krause, suggests that cameras had been banned in the Supreme Court as early as the 1890’s.
“We didn’t really expect a juicy story,” Kopko said, “but there was the story from 1895 about Justice Horace Gray falling asleep on the bench during oral arguments.”
Though Justice Horace Gray took his seat on the Supreme Court in 1882 and served honorably for 20 years, it was an unfortunate event in 1895 that jogs historian’s memories.
According to a news account of the time, members of the Court banned photography and cameras in reaction to a photo of Justice Gray sleeping soundly at the bench during oral arguments. Though the photo has never been located, this event might have caused cameras and, now, cell phones, to be banned from the Supreme Court.
“If this account of Justice Gray is true – and there is evidence to say that it is – it is very different from what justices are saying today,” Kopko said.
In modern times, he noted, the concern seems to center on how justices would change their behavior, and things said would be taken out of context “and end up on late night TV.”
Advocacy groups continue to push for opening the Supreme Court to cameras, but the camera ban remains..
Since the 1970s, “Congress has tried to pass legislation permitting cameras in the Supreme Court,” the research noted. “At the start of the 114th Congress, at least one pending bill proposed introducing cameras in the high court.”
To this date, all efforts have failed, but members of Congress continue to introduce legislation. This shows a continued and consistent demand for visual access to Supreme Court proceedings, Kopko said.
The public received its first video glimpse of the Court in session when members of the group 99Rise filmed proceedings with a camera pen. In all, they smuggled hidden video camera into the Court on Oct. 8, 2013; Feb. 26, 2014; and Jan. 21, 2015.
“In each instance, the demonstrators were promptly removed from the Supreme Court chamber by Supreme Court police and charged with various criminal offenses,” the duo reported.
Interestingly, in the 78 years since the last still photo was published, there is a continued demand from members of Congress and obvious interest from the community for greater visual access.
Perhaps most surprising, though, is the fact that more photos and videos of the Court in session did not surface between the 1937 edition of the Daily News and the videos released in 2014. “Despite the technological advancements that occurred during that time, there was, nonetheless, a photographic dry-spell that lasted for more than three-quarters of a century,” said Kopko and Krause in their article.
Presently, the Supreme Court allows audio recordings, and some lower courts allow cameras, said Kopko. District courts, for example, determine their camera policy on a district-by-district basis. And, conversely, in Great Britain and Canada, Supreme Court proceedings are televised.
The U.S. Supreme Court, said Krause, is the most secretive of the three branches.
The Supreme Court’s camera ban is just “one of those policies that just stayed that way” over time, Krause said. “It remains to be seen if the Supreme Court will changes its policy and allow cameras to document its proceeding in the future,” Kopko said.