While taken from a more distant vantage point, the second photo is in many ways the more striking one. The justices by this time had moved into their current home at the Supreme Court building. The image is grainy, but the details are unmistakable. It shows the waist-high bronze gate that separates the public from members of the Supreme Court Bar. The court’s towering marble columns and draping curtain form the backdrop. The large, simple clock over the bench marks the time, just as it does now. The justices can be seen sitting, several with their heads resting in their hands, while a white-haired lawyer argues before them. Justice James McReynolds, sitting on the chief’s left, appears to be studying the ceiling.
The edges of the photo are framed in black, presumably from the cutouts of the purse, giving the tunneled feeling of traveling back in time—which, of course, is exactly what the photo allows us to do. The justices captured here are members of the 1937 court that ended what lawyers refer to as the “Lochner Era” through a series of decisions that upheld the New Deal. On the far left sits Justice Owen Roberts, the author of “the switch in time that saved nine,” who put a halt to President Franklin Delano Roosevelt’s court-packing plan.
Justice Scalia recently argued against cameras by suggesting that watching the Supreme Court would be boring since the justices “just sit there like nine sticks on chairs.” The lines of would-be spectators stretching outside the courtroom before every argument suggest the public feels otherwise. These images, moreover, tell us that there is much to be gleaned from even still photographs. They display an intimacy that is missing in the public’s access to the court, and offer us a brief connection to our Constitution in action by opening the doors of our government to more than the fortunate few who get to fill the courtroom’s 250 seats. They are a fleeting hint at what we have missed over the past century as well as what we lose with each passing term.
The justices today give different reasons for keeping cameras out, but they share one central element: fear of the unknown. It is “not a logical argument” but “a psychological argument,” admits Justice Stephen Breyer. “Some of us may think if we were to vote for something with the implications for change we know not what—be careful.”
These two photographs make the argument that the justices’ fear comes at a price. Their inertia means that we have no photos or videos of Thurgood Marshall arguing Brown v. Board of Education, just as we have no images of the justices contemplating Roe v. Wade or Bush v. Gore. The photos remind us that it was a choice—their choice—to allow those moments and countless more to slip away. Caution is a virtue—until it becomes paralysis. In trying to preserve what we have, we are losing far too much.
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