Let the Cameras Roll Soon after Burger retired in 1986, I interviewed him and asked why he was so opposed to allowing cameras into his court. “Television in a short snippet is simply incapable of making a proper report unless you put the whole thing on,” Burger replied.35 Anticipating such an answer, I asked how the excerpting done on television differed from that done by newspapers. Even The New York Times, I said, does not print complete transcripts of oral arguments. Burger had a quick answer. In a newspaper, he said, “The words aren’t coming right out of the mouth of the judge or the attorney. On television, you see the person and it’s coming right out of his mouth.”36 At first, I thought Burger’s point was that newspaper accounts offered justices “plausible deniability” – the ability to claim they were misquoted. Television images, on the other hand, could not be refuted, because the judge’s utterances were captured on film. But I have since come to believe Burger was making a different point. He was objecting to the fact that by having their images on television, justices and lawyers would be aiding and abetting, in a more concrete way than in newspapers, the creation of improper and misleading reports on the Court. Television can go about its sordid business if it must, Burger seemed to be saying, but leave the justices out of it.37 The campaign for cameras in the Supreme Court, clearly, would have to wait for appointment of a new chief justice. That came in 1986, when Burger retired and was replaced by William Rehnquist. Though Rehnquist had serious misgivings about cameras and the media in general, he at least cracked open the door to discussions and experimentation.
Supreme Court Show and Tell
O
ne positive sign came in 1988, when the Court agreed to a demonstration of how cameras would work inside the Court chamber. Led by then-media lawyer Tim Dyk of Wilmer Cutler & Pickering – now a judge on the U.S. Court of Appeals for the Federal Circuit – a coalition of media organizations wanted the justices to see how far video technology had advanced, and how unobtrusive cameras could be. At first Rehnquist put off the demonstration, waiting for a decent interval after Burger’s departure. When it finally took place, the demonstration received very little publicity. Here is my contemporaneous report: The Supreme Court’s first peek at the television age last week began as a covert operation. To avoid publicity, cameras were whisked into the Supreme Court Building at 7 a.m. on Nov. 21 [1988]. The Court chamber was made off-limits to the public for the day. The cameras were installed, one facing the lawyer’s podium, the other in an alcove that affords a view of the justices. Three justices came down from their chambers, sat in their regular seats on the bench, and posed questions to media lawyer Timothy Dyk so as to replicate an oral argument. Then they stepped down from the bench to watch it on tape. The cameras left, and the videotape will never be made public. All involved agree that no promises were made or sought on either side about the possibility of instituting regular camera coverage of the Court. Media and Court officials alike have tried to minimize the importance of the session, and if not for a leak, the episode might never have been made public. But now that the covert operation has come to light, it’s safe to wonder out loud about the significance of the experiment.
35. See Tony Mauro, The Nine No-See-‘Ems: Justices Keep Out Cameras, Preserve Their Rite of Privacy, Wash. Jour. Rev., Nov. 1986, at 22. 36. Id. 37. See Smolla, supra note 1.
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