Brennan’s Conversion on Cameras in Court

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The federal judiciary’s policy making body announced plans this week for a pilot project to allow cameras to record civil trials in some District Courts.

Whether to allow federal court proceedings to be broadcast has been debated for years within the judiciary and Congress. Every recent Supreme Court nominee has faced questions about their views on the subject. Most recent ones have assured senators they’ll consider the issue, but the justices seem no closer than ever to allowing cameras inside their courtroom.

As the Wall Street Journal’s Jess Bravin noted in a May story, Justice Brennan was one of the court’s principal advocates for cameras in the courtroom by the end of his tenure.

But our research for Justice Brennan: Liberal Champion suggests he might have been a convert to the idea later in his career.  (Unfortunately, there wasn’t room in the book to talk about his views on the issue so consider this a bonus track.)In a 1990 interview with Steve, Merrick Garland, who clerked for Brennan during the 1978-79 term and is now a judge on the U.S. Court of Appeals for the D.C. Circuit, vividly recalled a conversation during his clerkship where Brennan was “very opposed” to the idea of televising the court’s proceedings.

“He didn’t want people to recognize him when he went to the grocery store,” Garland said. “He was very adamant.”

Similarly, Mary Fowler, who was Brennan’s secretary for more than a quarter century, told Steve that Brennan had a change of heart. Brennan told Steve in one of their interviews in his chambers that he had “absolutely no recollection” of his earlier opposition but added, “if that’s what [Mary] remembers then it must have happened.”

Brennan certainly appeared to have come around by 1986, telling the New York Times that such broadcasts were “inevitable.”

“Ours is a public proceeding,” Brennan said. “And there’s no reason in my judgment why only those who can gain entrance to the courtroom should be able to witness those proceedings.” He was even more adamant in an interview with Irish America magazine in 1990. “I would love it. I’m the only one presently of the nine who would allow television broadcasts of our actual proceedings.”

Privately, Brennan told Steve, “I know we are never going to have it, at least not in my lifetime anyway,” noting that Thurgood Marshall was “dead against it.”

Brennan’s sucessor, David H. Souter, proved particularly resistant as he made clear during a 1996 appearance before the House Appropriations Committee.

“I can tell you the day you see a camera come into our courtroom, it’s going to roll over my dead body,” Souter said.

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