Federal trial judges should ditch the black robes for something more regal!

It is not at all clear why it is that federal judges, and particularly federal trial judges, wear plain black robes. Before the Founding, I am told that judges in America wore wigs and robes of various colors. Jefferson (ever the liberal except when refusing to free his own slaves) thought American judges should not wear robes or wigs. Adams, as you might imagine, took the contrary position.  Someone apparently worked out a compromise, wigs were out but black robes were in.

What’s even more historically obscure is why judges have favored black at all.  Historians of the robe have fought to the death over this issue. One group suggests that:

  • In England, before 1694, the most popular colors for judge’s robes were green, scarlet (red) and violet – apparently, you had a choice!
  • In 1694, Queen Mary II of England died and was buried in Westminster Abbey in London. At her funeral, all the judges in attendance wore their official judicial robes – but wore them in the color black as a symbol of mourning for their deceased monarch. The mourning period for the passing of Queen Mary was extended over several years and most, if not all, judges continued to wear black robes.
  • By the time the mourning period had ended the wearing of black robes had been established as the norm for judges in the courtroom.

See Jerry Anderson, M.A., WHY DO JUDGES WEAR BLACK ROBES? AND WHY IS A DRUNKARD CALLED A “LUSH”? (December 7, 2011).

The other group argues that there are images predating 1694 of legal officials wearing simple black.  “Clearly black robes were  ‘in the mix’  so to speak before Queen Mary II died.”

Regardless, black is so, how I shall I say it, pedestrian.  It does not properly reflect our superior status as FEDERAL TRIAL JUDGES. After all, the Constitution makes our salaries immune from the sequester. Personally, we don’t have to make any sacrifice at all while Congress destroys the judiciary.

If we want to throw money around for “real-time” and court reporters because it saves us from working our poor little fingers to the bone writing notes, well, then, great men and women are entitled to their prerogatives. Let the assistant federal public defender–who withdrew from a death penalty case yesterday because she had been fired under the sequester–eat cake.  Some thing are more important than others.  Because some things are more important than others, I think we ought to start wearing better looking robes.

I propose a rig like this one:

Gilbert Stuart’s portrait of John Jay, first Chief Justice of the United States Supreme Court, 1794

Gilbert Stuart’s portrait of John Jay,
first Chief Justice of the United
States Supreme Court, 1794.

What do you think?

RGK

27 responses

  1. Judge, normally I don’t point out grammar/spelling, formatting, etc. errors on the internet (let he who is without sin …. and all that), but I have to tell you that I read your first bullet point three and maybe four times trying to figure out what the second sentence had to do with the first sentence. I don’t know if that is an “error”, but it sure is confusing and it is when I have to stop and reread several times that I feel obligated to point out such occurrences for the sake of my fellow readers.

  2. I am thinking black with platinum swirls on one side andthe opposite on the other side depending on mood of judge.

  3. Oh, and I also like your idea of fancier robes. Most courtrooms could do with some more color (though some would argue you are just competing for attention with the US and state flags).

  4. Genius! Mood rings for trial judges.

    There would be nothing for court reporters to take down ’cause we would not have to say a word–just hold up our mood rings. “Red” equals objection sustained and “Blue” equals objection overruled. I say, again: Genius!

    Thanks Mark.

    RGK

  5. If you read the Wikipedia description of what English judges actually wore up until a couple of years ago (when it was simplified slightly), it is pretty amazing —

    Before autumn 2008, when dealing with first-instance criminal business in the winter, a High Court judge of the Queen’s Bench Division wore a scarlet robe with fur facings, a black scarf and girdle (waistband) and a scarlet casting-hood or tippet. When dealing with criminal business in the summer, the judge wore a similar scarlet robe, but with silk rather than fur facings. In both cases, the judge wore a wing collar, bands, and a short wig. Since autumn 2008, only the winter style remains.

    In civil cases before 2008, the judge wore in winter a black robe faced with fur, a black scarf and girdle and a scarlet tippet; in summer, a violet robe faced with silk, with the black scarf and girdle and scarlet tippet. However, from autumn 2008, in civil and family cases, the prescribed dress consists only of a robe of modern design over ordinary business clothing, with no wig, collar or bands.

    https://en.wikipedia.org/wiki/Court_dress#Judges

    If you watch the old “Rumpole of the Bailey” TV show you can see how this looked in action — like “mice peeping out of oakum,” as I think Jefferson said.

  6. Jay,

    The “mice” quote is neat (and perhaps an accurate description of federal trial judges in the modern age) even if the quote does comes from Jefferson. Thanks.

    All the best.

    RGK

  7. I can attest that judges on the Maryland Court of Appeals wear crimson robes, and they look wicked.

  8. Judge,

    This is a brilliant idea. Especially if all the judges wore them at the annual conference. Then y’all could look like this:

    It would be pretty rad. I’m positive that there’s some snarky comment to be made about justice being blind, but I’m just not gonna go there.

  9. The Irish Supreme Court Judges all have really elegant new green and gold trimmed designer robes. Last year all Irish Judges stopped wearing the horsehair wig. However the biggest news about robes in Ireland is the fact that one of my colleagues ‘borrowed’ my robes this morning, and, I now have an expensive trip to the tailors.

  10. Henry Politz of the Fifth Circuit wore a ceremonial scarlet robe for the administration of the oath to all judicial appointees during his tenure as Chief Judge, always noting that it was in recognition of the tradition of the British bench.

  11. Or perhaps the Chief Judge in each district or circuit could follow the late Chief Justice Rehnquist’s lead and place gold stripes on his or her robe. According to the Smithsonian, “Rehnquist added the gold stripes to the sleeves in 1995 after seeing the costume worn by the Lord Chancellor in a production of Gilbert and Sullivan’s Iolanthe.”

    http://americanhistory.si.edu/presidency/2c2_a.html

  12. Neat idea. Maybe, we ought to have multiple robes. Like, all black, with hoods, for when we sentence. And so forth.

    All the best.

    RGK

  13. I always wondered whether the Chief Justice was playing a practical joke. I am told he loved such things.

    After all, the Lord Chancellor was played and sung by a comic baritone. In the “The law is the true embodiment,” the Lord Chancellor, with a chorus of Peers, proclaims:

    The Law is the true embodiment
    Of everything that’s excellent.
    It has no kind of fault or flaw,
    And I, my Lords, embody the Law.

    All the best.

    RGK

  14. None of the above. The judge should wear a white t-shirt with a cigarette pack rolled in one sleeve. For the hair, he can choose from these options: a proud duck tail or a Larry Finkelstein tonsure and pony tail.

    A Zippo will comprise all the accoutrement he needs; he can toy with it during boring lawyer speeches or deadly dull testimony.

    Eric Hines

  15. Eric,

    I had a Zippo for the longest time. Best machine ever made. Thanks for making me smile.

    All the best.

    RGK

  16. You ask, “What do you think?” And I say: I think this entry is one of the finest examples of understated but devastating ironic criticism of the idiotic and cruel sequester — and perhaps of any serious political topic — that I can ever remember reading. Better than Swift’s “Modest Proposal,” because it is manages to stay more safely in the realm of the almost-plausible, as great irony must.

  17. Very interesting post. I have recently been doing some reading on the (relatively new) UK Supreme Court. They moved over from the House of Lords in 2009. The justices of the court do not wear robes during hearings. Indeed, their bench is not raised at all. It comes off as similar to a legislative hearing. All of their opinion announcements are available on their youtube page at http://www.youtube.com/uksupremecourt.

    While I am sympathetic to the comfort of judges and the need to modernize, I would hate to see the robe go. In fact, I’d also like to see some flair in judicial robes. The three stripes on Chief Justice Rehnquist’s robe were a nice touch. For a more comparative perspective, check out this post showing judicial robes throughout the world: http://www.filibustercartoons.com/judges.htm

  18. If you’re not wed to a uniform based on history, you could always adopt the costume of Judge Dredd, a comic book/movie character who serves as cop, judge, jury, and executioner:

    I think the gold codpiece is an especially nice touch.

  19. The gold codpiece is the perfect touch for those of us like me who ascend the bench literally and figuratively–fearsome, but in an understated way. All the best.

    RGK

  20. I practiced before both the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal. Those judges have red velvet on the front of their otherwise black robes. International Criminal Court judges have blue rather than red. Judges on the International Court of Justice have black robes and really neat lace tabs in front.
    Lawyers who practice in those courts wear robes with white tabs. I wore Dutch robes which were wonderful. They went all the way to the floor and I could have been wearing a swimsuit underneath. In fact, a lot of days it was jeans.
    I got used to seeing that red on judges robes and I kind of miss it.
    Of course, you all could start wearing wigs.

  21. Tom,

    Thanks very much. Aside from the pretty robes, I would be interested in knowing what other differences you see as between the federal trial courts and International Criminal Tribunal. If you are interested in a guest posting gig, send me an e-mail at the blog’s address which can be found at the top of the page and I will get back to you.

    All the best.

    RGK

%d bloggers like this: