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The black-and-white photographs are stark, depicting dramatically overcrowded prison spaces in California. One image shows the telephone booth-sized cages used to hold suicidal inmates. Photos from a magazine expose or a documentary? No, they were in the appendix to Justice Anthony Kennedy’s majority opinion in today’s Supreme Court decision in Brown v. Plata. Drawn from the record of the trial involving treatment of mentally ill patients that led to the appeal, the photos added visual force to Kennedy’s assertion on behalf of five justices that “serious constitutional violations” in the California prison system warranted judicial intervention. The use of photographs, maps or other images is exceptionally rare in Supreme Court decisions, and usually confined to redistricting cases or border disputes. But they pop up in other decisions once in a long while, occasionally stirring controversy. In 2008, justices squabbled over the validity of a police car chase at issue in Scott v. Harris, to the point that Justice Antonin Scalia had the video of the chase posted online at the Court’s Web site so it could “speak for itself.” That led to the creation of a Web page that is extraordinary for the usually low-tech Supreme Court, titled “audio/visual resources.” The page also includes the video of a victim impact statement at issue in a 2007 case in which the Court denied review, Kelly v. California. In the 1995 decision Capitol Square Review and Advisory Board v. Pinette, dueling photos served the purposes of justices who disagreed over a controversial Christian cross on the lawn of Ohio’s state capitol. Justice John Paul Stevens, who opposed it, appended a close-up that made the cross loom large, while Justice David Souter, who said the cross was permissible, included a panorama shot that de-emphasized the cross. Chief Justice Earl Warren tacked seven pages of fold-out photographs to his concurrence in Estes v. Texas in 1965 to illustrate his point that the presence of cameras – with photographers roaming the aisles — violated due process in criminal trials. The Court’s occasional forays into visual imagery were catalogued in a 1997 Harvard Law Review article that voiced concern about possible misuse and distortion. Hampton Dellinger, then a lawyer in the North Carolina attorney general’s office and now a partner in the Research Triangle, N.C. office of Robinson Bradshaw & Hinson, was the author of that article. (His father is former acting solicitor general Walter Dellinger.) The younger Dellinger took a look at today’s decision and still has concerns about the Court’s use of pictures. While photos seem to possess “a neutral, objective quality” that written opinions might not have, Dellinger said in the 1997 article, they, in fact, can be selectively chosen or distorted in ways that negate their value. Such images, he wrote then, “can act as a deus ex machina, allowing the justice to resolve a difficult legal point too easily by distracting the reader with an eye-catching attachment.” The dissenting justices in the Brown v. Plata case did not object to Kennedy’s use of the prison photos, and some practitioners polled today said they thought it was a good idea. “I’d think that the adage that a picture is worth a thousand words applies to Supreme Court Justices just as it would to anyone else,” said Mayer Brown’s Evan Tager. But Dellinger thinks the practice should remain as rare as it is now, if not more so. “The inclusion of visual images continues to feel just as random, superfluous, and standardless now as then,” said Dellinger. “As the divided opinions today evidence, the justices have plenty to disagree over, wielding words alone. With today’s visual technologies — more manipulable than ever — any movement towards making photos a regular part of the Court’s opinions will likely lead to more arguments among the justices rather than less.” Tony Mauro can be contacted at [email protected].

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