Cameras in the Courts: The Long Road to the New Federal Experiment Mickey H. Osterreicher We will have a man on the moon before there will be cameras in this courtroom. – Supreme Court Chief Justice Earl Warren1 I think the case is so strong, that I can tell you the day you see a camera come into our courtroom it’s going to roll over my dead body. – Supreme Court Justice David H. Souter2 I have had positive experiences with cameras [on the Second Circuit Court of Appeals] when I have been asked to join experiments using cameras in the courtroom. I have participated. I have volunteered. – Supreme Court Nominee Sonia Sotomayor3 I think it would be a terrific thing to have cameras in the courtroom. When you see what happens there [the U.S. Supreme Court], it’s an inspiring sight . . . you’re really seeing an institution of government at work . . . . A lot of [the issues] the American people should be really concerned about and should be interested in so I think it would be a great thing for the institution and more important I think it would be a great thing for the American people.” – Supreme Court Nominee Elena Kagan4
T
he sentiments expressed by Chief Justice Warren and Justice Souter regarding cameras in the Supreme Court still linger today, with cameras still banned from the U.S. Supreme Court. But some headway is being made, as shown by the recent comments of Justices Sotomayor and Kagan in their confirmation hearings. And now the federal courts – building on the experience in the state courts – are embarking on a second “experiment” to permit cameras in federal court. The prolonged “experimental” status of cameras in federal courts stands in sharp con-
1. According to First Amendment attorney Floyd Abrams, Warren said this to one of his clerks. Albert Scardino, Courtoom TV Is a Fixture, Even as New York Is Deciding, N.Y Times, Jan. 22, 1989, http:// www.nytimes.com/1989/01/22/weekinreview/ideas-trends-steinberg-live-courtroom-tv-fixture-evennew-york-deciding.html. 2. On Cameras in Supreme Court, Souter Says, ‘Over My Dead Body,’ Associated Press, Mar. 30, 1996, available at http://www.nytimes.com/1996/03/30/us/on-cameras-in-supreme-court-souter-saysover-my-dead-body.html. 3. Judge Sonia Sotomayor Confirmation Hearing, Day 2, Part 2, July 14, 2009, http://www.c-spanvideo. org/videoLibrary/clip.php?appid=557606253. Putting that belief into practice, Sotomayor allowed her swearing-in to be the first open to electronic media coverage. See Sotomayor ceremony 1st on TV, RBR. com/TBR.com, Aug. 7, 2009, http://www.rbr.com/media-news/16294.html. 4. Judge Elena Kagan Confirmation Hearing, Day 2, Part 1, June 29, 2010, http://www.c-spanvideo.org/ program/KaganConfirm. Reynolds Courts & Media Law Journal
221