Show, Don't Tell
Do photographs of California's overcrowded prisons belong in a Supreme Court decision about those prisons?
The court's reliance on the video in Harris prompted some fascinating scholarship on the role of such videos in Supreme Court decision-making, including a study published in 2009 in the Harvard Law Review arguing that viewers reach vastly different conclusions upon viewing the high-speed chase in Harris. Values, cultural biases, income, and other factors shape viewers' opinion of the court's conclusion that the police chase was inherently "reasonable." The authors conclude that inviting readers to view the tape on the court's website and "trust their own eyes" was "hubris" and a mistake on the part of the court.
Hampton Dellinger similarly urges that photographic attachments, which may appear neutral and objective, can be manipulated to produce a desired emotional response. And Jessica Silbey at Suffolk University Law School, who has called for a more coherent rule of film evidence in jury trials, highlights the "opposite tendencies of film and law, the former being to entertain, provoke, or please, and the latter being to reason and judge based on facts and not on emotion."
Of course, there is something strange about a court that is seemingly allergic to film and cameras covering its own work embracing photographic images to convince readers of a legal argument. Good grief, justices. If cameras have a place in a legal opinion, they surely have a place in the courtroom as well. The court can't reasonably take the position that photos and video are essential to its own work, while still barring photos and videos from the building.
To what end did Kennedy attach those California prison photos? To make us angry? To justify his own strong response? To answer the pervasive criticism that the justices do not inhabit the real world? What if he miscalculated? Might viewers looking at images of huge tattooed men crowded into small spaces not react with terror that these men are about to be released back into their communities?
The images of the prison cages in today's opinion add little to the discussion about the propriety of the lower court's release order or the sweep of the Eighth Amendment. At least in this instance, Kennedy's words alone would have been enough. Indeed the majority's reliance on the cruel mistreatment of the prisoners seems only to have incensed Scalia, who fulminates in his dissent that "today the Court affirms what is perhaps the most radical injunction issued by a court in our Nation's history."
Scalia in fact uses words like absurd and travesty before painting a word picture that is as vivid as it is chilling: "The vast majority of inmates most generously rewarded by the release order … will not be prisoners with medical conditions or severe mental illness; and many will undoubtedly be fine physical specimens who have developed intimidating muscles pumping iron in the prison gym."
And with word-power like that, who really needs photographs?
Dahlia Lithwick writes about the courts and the law for Slate.