At 10:07 a.m. on June 28, 2012, more than 5 million people were glued to SCOTUSblog, a popular legal website, waiting to receive word of the Supreme Court’s decision on the constitutionality of the Affordable Care Act. Inside the courtroom, Chief Justice John Roberts was reading his opinion from the bench, as Justices Ruth Bader Ginsburg and Anthony Kennedy waited to share their views. The press, meanwhile, was rushing to transmit the news via an awkward process reminiscent of a child’s game of “telephone.”
Later we would be told that Justice Sonia Sotomayor appeared “exhausted” and that Justice Antonin Scalia “looked like he wasn’t very happy.” We would hear tale of the “collective head-snap” in the courtroom when the Chief Justice announced the controversial individual mandate would survive as a tax. Of course, almost none of us actually witnessed these moments. We were staring helplessly at our blinking cursors, repeatedly refreshing our screens for another morsel of news.
It didn’t need to be this way. In a day when even our cellphones can capture images unobtrusively, why were we forced to stare at pixels on our computer screens or at a static televised image of the Supreme Court’s exterior? In 2012, why is there a wall of separation between the American people and their high court?
The Supreme Court has never wavered in its opposition to allowing cameras into its courtroom. It has steadfastly held that position despite the fact that all 50 states allow camera access in some form and that lower federal courts have been “experimenting” with the practice since the early 1990s—at roughly the same time that the Canadian Supreme Court let them in without incident.
For decades, the debate over cameras in the court has gone something like this: the press pleads for permission and the court says no; academics make policy arguments that the court ignores; and Congress threatens to force cameras into the court, but the justices don’t blink. The argument remains deadlocked, with the justices insisting that they will not risk the integrity of the court until they can be certain of the effects and camera proponents arguing that it is impossible to know the effects until cameras are allowed inside.
Yet few people know that twice in the court’s history cameras did get in. It was stealthy and illicit, but two rogue photographers managed to capture what few have seen—the justices at work. And the resulting photographs give us a small glimpse of what we have been missing.
In 1932, photojournalist Erich Salomon sneaked a camera into a Supreme Court argument, being held in what was known as “The Old Senate Chambers.” To pull this off, he faked a broken arm and hid a camera in his sling. His single photograph was published in Fortune and promoted as the first image ever taken of the court in session. It is a clear and close-up shot of the bench, with a bearded Chief Justice Charles Evans Hughes presiding. Two chairs down, most court devotees would recognize the wavy locks of Justice Louis Brandeis. The justices appear to be listening to the argument being presented by an unseen attorney.
Five years later, Time published another clandestinely shot photo. This one, the magazine reported, was taken by “an enterprising amateur, a young woman who concealed her small camera in her handbag, cutting a hole through which the lens peeped, resembling an ornament.” The unnamed photographer “practiced shooting from the hip, without using the camera’s finder which was inside the purse” in order to capture the court in action. To my knowledge, this photo hasn’t been reprinted since it was first published 75 years ago.