The Supreme Court

We began this project with the idea that we'd focus on the history of the building, not knowing how many justices would agree to participate. But as more of them signed on for interviews, it became apparent to us that we were being given an incredible opportunity to learn about what happens inside the Court, the branch of government least visible to the public, through the eyes of the justices themselves.

This project would not have been possible without the assistance of Chief Justice John Roberts, C-SPAN producer Mark Farkas, and the Court's chief public information officer, Kathy Arberg. What follows is the story within the story of how the Supreme Court came to terms with television cameras, if only briefly.

Historically, the Supreme Court and its members have distinguished themselves for their aversion to the publicity—lifeblood to many Washingtonians. Lifetime appointments give justices little incentive to be in front of the public. Indeed, justices over the years have described the pains they take to insulate themselves from public life so that their rulings are reached independent of popular opinion. Yet the Court is not a cloister. Earlier justices may have been somewhat monastic in their habits; by contrast, today's top jurists routinely dip their toes into the waters of public life, beginning with the high profile gauntlet of today's judicial confirmation process. Justices in the modern era routinely accept speaking engagements, take on teaching assignments, write books, and undergo the rigors of publicity tours. Some, by no means all, grant infrequent interviews with print and television organizations.

Because Court policy bans television cameras from covering the seventy-five or so public arguments scheduled for each term, C-SPAN tries to have cameras in front of the justices whenever possible outside their marble home on Capitol Hill. Over the years, many of the justices have welcomed C-SPAN cameras, likely seeing our coverage of speeches and panel sessions as part of a broader, ongoing effort to involve and inform the public about the Court and its work. In particular, Justices O'Connor, Breyer, Kennedy, and Thomas have participated in C-SPAN-produced programs such as Students and Leaders, a series that introduces high school students to history makers. In these public settings, justices will talk about their jobs, how the Court functions, and its role in society, but traditionally refrain from discussing prior cases or issues that may come before the Court.

Others emulate retired Justice David Souter, noted for his quip that cameras would come to the Supreme Court "over my dead body." Justice Samuel Alito, among the more recent additions to the Court, has done little to cultivate public visibility since his 2006 Senate confirmation hearings. Justice Antonin Scalia, a longtime and vocal opponent of cameras in the Supreme Court, has sometimes been known to carry that opposition to television coverage far from the Court building. While Justice Scalia has granted occasional television interviews, there are a few times on record when the arrival of a C-SPAN camera crew at one of his speeches had an unhappy sequel: our would-be chroniclers were led to the door.

Though cameras are not permitted in the Court's ornate marble courtroom during oral argument, technology has been allowed a modest toehold there. Since 1955, the Court has created audio recordings of its hearings, which are later turned over to the National Archives for future research by scholars and journalists. The contested presidential election of 2000 affected this practice in a significant way. As that bruising contest made its way to the Court for resolution, C-SPAN requested permission to televise the arguments in Bush v. Gore. Other media organizations quickly joined in the petition. After review, then Chief Justice Rehnquist said no to television but citing the heightened public interest in the case agreed to immediately release the Court's audio recording. On December 11, 2000, just minutes after the case was heard, the Court released its audio file. Radio and television organizations, including C-SPAN, instantly carried the argument in its entirety, giving many Americans their first exposure to the rapid-fire intellectual jousting of the Court's oral argument.

Precedent counts for a lot around the Supreme Court. The "heightened public interest standard" provided a framework for additional requests for same-day release of the Court's audio tapes, which Chief Justice Rehnquist continued to review, as did his successor, Chief Justice Roberts. Between 2000 and 2010, C-SPAN was permitted to broadcast twenty-one such cases. Then, as the term opened in the fall of 2010, the Court announced a new policy: Audio recordings of each oral argument would be posted to the Court's Web site at week's end. While not exactly real-time accessibility to the Court's proceedings, the new policy does take the Court out of the business of reviewing each media request for access as it is made and gives the media and the public more material more quickly than in the past. Unfortunately, a decade of experience with audio recordings seems not to have opened the door to television coverage of the Court, even a little. In 2005, when John Roberts was chosen to succeed Chief Justice Rehnquist, C-SPAN suggested a demonstration of digital technology that could allow unobtrusive coverage of oral arguments. The chief politely demurred. In 2009, as this book first neared completion, the Roberts Court underscored its distrust of cameras in the courtroom with a 5–4 decision that had the effect of blocking a ninth circuit federal district court from posting video of a trial onto the popular video Web site, Youtube.

Such had been our experience with cameras and the federal judiciary when in March of 2009 C-SPAN approached Chief Justice Roberts with the idea of producing a documentary on the Court building. We entrusted our appeal to Mark Farkas, a twenty-five-year C-SPAN veteran, who had earlier produced video histories of the United States Capitol (2006) and the White House (2008). On March 23, 2009, Mark wrote to the Court on C-SPAN's behalf, asking permission to bring HD cameras inside the 1935 landmark to record the Court's story, through its building's art and architecture. Inside C-SPAN, anticipation built. A week, then two, went by with no response. Then, during the second week of April, Mark received a call from Kathy Arberg, the Court's chief liaison to the media: the chief would allow our cameras into the Court. The project was on!

The narrative of the Supreme Court building is far briefer than that of the White House or the Capitol. Until 1935, justices met inside the U.S. Capitol in quarters they had long since outgrown. It's fair to say that the Court's majestic building, first occupied at a time of major national and constitutional stress, owes its existence to one man, William Howard Taft, the only American ever to serve as both president and chief justice. Taft put the full force of his personality behind the building project, hiring Cass Gilbert, one of the most noted architects of the day. Taft died in 1930 before he could see the completion of the $9 million building he had championed, and it fell to his successor, Charles Evans Hughes, to preside over the cornerstone-laying ceremony for the Court's new home in 1932.

Having gained permission to proceed, we set an ambitious production schedule geared to the opening of the Court's fall term on the first Monday in October 2009. Justice Souter had just announced his retirement, setting the stage for President Barack Obama's first Court appointment and summer confirmation hearings. If all went according to plan, Justice Souter's replacement would be on the Court with the opening of the new term. More than ever, people would be interested in the Court, some passionately so. We had a deadline to meet.

April 29, 2009, marked our first day of taping at the Court. May and June brought a flurry of production for C-SPAN camera crews. Mark Farkas's technical partner, crew chief Bob Reilly, assembled a small team of talented technicians for the project. Together Bob Young, Bill Heffley, Jon Kelly, Ben Sorenson, and Mike McCann brought decades of experience shooting in C-SPAN's style. Reilly, who's been at the network almost as long as Mark Farkas, was the main "shooter" for our Capitol and White House features. He brought this project, his HD production experience, and an instinctive appreciation for what it takes to move television gear through public rooms filled with priceless artifacts of national significance.

White House and congressional staffs long ago grew accustomed to having television cameras in their midst on a daily basis. Not so in the Supreme Court. Camera crews are rare there, and we were sometimes met with skepticism. Kathy Arberg's willingness to run interference coupled with Mark Farkas's flexibility and good cheer enabled the C-SPAN team to make significant progress throughout the early summer months. Extra production sessions on nights and weekends produced hours of raw video as our cameras went into places rarely or never before seen by the public. One day, we were inside the Lawyers' Lounge, where attorneys make their last-minute preparations before argument; another time we visited the justices' Robing Room, where nine fine wooden lockers affixed with nameplates hold each jurist's black robes—the world's most exclusive locker room.

In the core of the building sits the majestic courtroom. Taping there was undoubtedly the most moving production experience for our crew. Seeing the justices' nine empty black leather chairs, it was possible to hear the room's echoed arguments that have defined the law and shaped the course of American democracy for three-quarters of a century.

We shot twenty-six hours of interior and exterior production video while the Supreme Court Curator's Office combed their files for historic photographs to augment our emerging storyline. Before we were done, we'd received permission to take cameras everywhere we requested, save two locations: the Conference Room, where the justices gather without staff to discuss the cases before them. (It is so exclusive a setting, in fact, that when the justices convene there, it falls to the most junior member to answer the door.) As it happens, we were able to secure video of the Conference Room shot in the mid-1990s by a production company, and just recently, in early 2011, we were permitted to tape inside the room ourselves for an updated version of the film. The other off-limits place was a top floor basketball court, dubbed by building insiders as the "highest court in the land." All in all, we were granted incredible access for which we were—and are—greatly appreciative.

Our Capitol documentary had included top congressional leaders. The White House featured interviews with the Obamas and the Bushes. It seemed only appropriate to try to enlist each of the justices for interviews for this project. One by one, they agreed. Justice Stephen Breyer said yes to a video tour of his chambers. His interview, our first, showed Justice Breyer in full educator mode. Standing in front of shelves filled with color-coded briefs, he offered a detailed explanation of the process by which the Court reviews petitions to hear cases. Later, sitting before an office fireplace, with his windows framing perhaps the best view of the Capitol in Washington, Justice Breyer described the constitutional differences between the Court and the Congress.

Later that same day, another bit of history was made when the famously laconic jurist from New Hampshire, David Souter, sat down with us for what we believe was his first-ever television interview. Our gear was set up on the Court's west plaza's portico, amid the building's famous columns. While our interview was short, only about twenty minutes, Justice Souter seemed less than comfortable with the cameras and microphones, and yet he spoke with obvious affection and knowledge of the building he would soon vacate. Here, he describes the experience of sitting on the bench in the courtroom, surveying the attorneys and other interested parties ready to make their case, and, perhaps, history in the bargain:

Unfortunately, you won't be able to read more of David Souter's interview in this book as he was the only justice to graciously, but explicitly, decline our request to publish the full text of his interview.

As the month progressed, more of Justice Souter's colleagues signaled their willingness to give us interviews. Chief Justice Roberts promised us a half hour before our cameras that pleasantly turned into fifty minutes; senior Justice John Paul Stevens, since retired, toured us around his chambers. We accompanied Justice Ruth Bader Ginsburg to her temporary chambers, where she spoke of the challenges of being the lone woman on the Court. She's since been joined by two female colleagues. Antonin Scalia gave us a lively thirty minutes in which he praised his law clerks and decried a national surplus of lawyers. Sandra Day O'Connor recounted her first oral argument. Clarence Thomas described his travels around the country in a motor home during the Court's summer breaks. Anthony Kennedy talked of the adrenaline rush he still gets from debating cases with his colleagues in conference. In each of these encounters, we got a vivid sense of the justices' personalities, intellects, and love for the institution they serve. Something else became clear as well—all of them spoke of the collegiality that enables the Court to function even through the toughest cases.

The summer was evaporating. While Brian Lamb and I were taping interviews with the justices, Mark Farkas and our colleague Connie Doebele (an earlier court producer in her long C-SPAN career) interviewed individuals who would add their own knowledge of the Court to our production—journalists Joan Biskupic and Lyle Denniston; former Solicitor General Drew Days; attorney and former Rehnquist clerk Maureen Mahoney; the clerk of the Court, General William Suter; and a Court historian, James O'Hara. In time, we had accumulated nearly fifty hours of video and interviews to process into an eighty-five minute documentary. It was time to get into the editing room, and still no word from one serving justice—Samuel Alito.

The day we were scheduled to interview him, Clarence Thomas happened upon our camera crew as they moved equipment through the Supreme Court's garage and stopped to talk. "How's it going?" he inquired. Mark Farkas brought him up to date, then explained that we'd managed to book every justice but Alito. "Let me talk with him and see what I can do," Thomas promised. Soon thereafter, we received word that Justice Alito would, indeed, participate.

And even as we taped, the Court was changing. In mid-July, the Senate Judiciary Committee convened to consider Sonia Sotomayor's nomination to replace Justice Souter. The fifty-five-year-old New York judge would be the Court's third female and first Hispanic American member. If she was confirmed, we knew we'd have to find a way to incorporate the newest justice into our project. Events broke our way: Justice Sotomayor was confirmed by the Senate on August 6 and sworn in by Chief Justice Roberts two days later. Breaking with tradition, the Court was set to convene in early September to rehear arguments in an important campaign finance case. Justice Sotomayor would participate early in her first oral argument. Kathy Arberg agreed to forward our interview request to the new justice just one day after her investiture on the Court.

On September 16, Justice Sotomayor walked through the doors of the Court's West Conference Room, where our cameras and lights were set up and waiting. Making her way to our set, she smilingly shook hands with each member of our production team, then settled into her chair. She made a number of interesting observations over the next thirty minutes, but none of us will forget her recounting "for history" the story of her call from President Obama in which he asked her to serve on the Supreme Court:

We hurried back to C-SPAN with our completed interview. With just days to go, the finishing touches were added to the documentary, which debuted on C-SPAN on Sunday, October 4, 2009.

One year later brought another resignation and nomination and, by the opening of the Court's new term, a new justice: fifty-year-old Elena Kagan, a former dean of Harvard Law School who had served as the Obama administration's solicitor general. Although she had argued many cases before this Court, Kagan was the first to join it with no experience on the bench. Justice Kagan agreed to give C-SPAN her first television interview, which we recorded in her temporary chambers in October 2010. Personable and forthcoming, Justice Kagan described the steep learning curve of her earliest days on the Court, comparing the work to "drinking out of a fire hose."

In thirty-two years of operation, C-SPAN has been granted numerous interviews with presidents, top congressional leaders, and heads of state, yet this project stands apart in its significance. In part this is due to the Court's traditional lack of exposure. Even more, it is the result of access uniquely granted to us by the chief justice and his current and former colleagues. The uniqueness of this opportunity guaranteed that no part of our interviews with the justices would end up on the cutting room floor. To the contrary, all of these judicial and personal portraits aired in their entirety. Each is permanently archived in our video library at www.c-span.org, enabling students of the Court to use them for generations.

We have many thank-yous to deliver, most importantly to Chief Justice John Roberts and his chief of staff Jeff Minnear; to the current and retired associate justices, along with the journalists, Court officials, and former government officials who sat for interviews; to Kathy Arberg and Patricia McCabe Estrada in the Public Information Office and their colleagues Scott Markley, Lauren Ray, Ella Hunter, and Cory Maggio; to Supreme Court Curator Catherine Fitts, and her staff, including Associate Curator Matthew Hofstedt, who tirelessly checked facts and provided rare photographs for our television production and this book. Thanks also to the marshal of the Court, Pamela Talkin, and the many Court security, administration, and technical personnel under her supervision who aided various aspects of our production.

Dozens of people inside our own network contributed to this ambitious undertaking in many aspects of production and marketing/ communications. Rick Stoddard was Mark Farkas's partner throughout the production and along with Anna Caulder did most of the editing. As always, Terry Murphy, our vice president of programming, provided a steady hand on the tiller; Bruce Collins, our counsel, lent his special expertise to the project; Rob Kennedy, our co-COO, ensured that the infrastructure was there to make these projects happen. Others at C-SPAN aided greatly with editorial and production issues for this book, most notably Amy Spolrich and Molly Murchie. While space prohibits a full listing of the many fellow C-SPANners involved with various aspects of The Supreme Court, their professional contributions and ongoing collegiality are greatly appreciated.

Finally, let me express our thanks to the cable television companies who founded C-SPAN in 1979 and which continue to support our non-commercial operations through affiliate fees and carriage on their cable systems. We thank them, in particular the 18 cable executives who have served as our chairmen, for sharing our vision of cable's possibilities, and for being there every time we needed you. That's one verdict that is unanimous.