It's far too easy to make far too much of far too little.
|Rehnquist - Embodying the Law?|
That's certainly what happened when Chief Justice Rehnquist decided that as chief it would be appropriate for him to have his robe outfitted with gold-braided stripes on the sleeves so that he could look like
theverymodelofamodernmajorgeneral the Lord Chancellor in the Gilbert & Sullivan operetta, Iolanthe. You know, the one who sang, with perfect judicial modesty,
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.
Anyway, when Rehnquist adopted the stripes back in the 90s, he was rather mocked for being showy and silly and pompous and debasing the dignity of the court.
If there was comment on that, and there was, so there was speculation about what Rehnquist's successor, John Roberts, would do. Knowing what news is fit to print, the Grey Lady (that's the New York Times) covered his first appearance as Chief Justice and, while it's not the sole focus of her article, Linda Greenhouse did answer the question. He wore basic black.
(O'Connor & Ginsburg, as you can see from the photo, wore their doilies, though you wouldn't learn that from Greenhouse's article.)
What gets me prattling on about this is this article from the Grey Lady's more sprightly sister (cousin, college roommate?), the Washington Post. Post staff writer Robin Givhan takes the occasion of the new class photo to (1) notice that Ginsburg is now alone in her frilly neckware as Kagan, like Sotomayor, goes with basic black, a simple robe showing just a bit of a white collar.
Givhan helpfully explains that Sotomayor and Kagan "
In donning the robes, the justices make a visual promise that they're leaving personal idiosyncrasies, prejudices and desires outside the courtroom. They have tamped down individual preferences in service to the greater good, the general public . . . the law. The robes acknowledge that the justices have shed distractions in favor of objectivity, fairness and a common, high-minded purpose. The law is their religion. That's where they place their faith. Their piousness may be imperfect -- they are human, after all. But true devotion is worth striving for.
"gun-toting, false-macho, selfish and violent mess" while describing the man who was killed as "a man of uncommon accomplishment, courage, enterprise and decency " "But," asked a member of the panel, "wasn't he just telling the truth."
Surely, he was saying what he believed. But the appearance of propriety matters. We know judges are biased and often dishonest in their opinions. (I'm skating close to violating the Mark Gardner rule here, so in fully self-protective mode I'll explain that nothing I write is true of judges in Ohio or any other jurisdiction in which I may ever practice law.) But they're supposed to keep that a secret. It's part of the game, but it's essential if the courts are to have any authority at all, because the only authority they have is what we cede them.
As Old Hickory is alleged to have said of Chief Justice John Marshall, "John Marshall has made his decision; now let him enforce it."
Those nine men and women in D.C., they've got no monopoly on wisdom. Justice Jackson knew that they didn't have any secret answers, or even special insight about what the Constitution means. "We are not final because we are infallible," he said, "but we are infallible only because we are final." They've got votes. And the power that comes from the appearance of propriety and the seeming dignity with which they comport themselves. So dump the braid, dump the doily. Basic black.
Like a hangman.