Tuesday, October 12, 2010

Dressing for Success

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 "need a little something at their necks so they don't appear to be naked under their judicial uniforms."  Or, of course, they could urge the men to skip the ties and go with wife-beaters so they could all look naked.  A trivial sort of point, but read on.
Neither the Post nor Givhan, I suppose, would want to be seen as so frivolous as to publish an article of no more substance than this, so Givhan has a larger purpose.  She's going to analyze judicial robes.  After all, as Givhan observes, the robes serve a function greater than hiding stained neckties.
The justices' unadorned black robes carry with them an air of tradition, dignity, gravitas, as well as humility. It doesn't matter if a justice is wearing a custom-made Turnbull & Asser shirt, a Chanel suit or a tie from Charvet. All of that finery is hidden under their look-alike robes. The stark costume reminds them that while they possess great power, it should be wielded with deep humility.
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.
The robe helps to ward off hubris and self-importance. Indeed, wouldn't we be perturbed if a justice decided that a little rhinestone trim along the sleeves would be quite nice? Or what if a justice decided that a mink collar would be quite lovely in the winter?
The unadorned black garment telegraphs to the common man that he has a fighting chance in court. He's not seeking justice from a ruling class or a royal family. He's just coming before other men and women. The bland robes serve as a visual reminder of the high-minded philosophy underpinning our judicial system: Under the law, everyone is equal. Gender, religion, race and economic class don't matter.
. . .
The justices should be sending a message that they are there to listen -- to truly hear what each side has to say. Their appearance should reassure folks; it shouldn't intimidate, nor should it deliver the equivalent of a wink and a nod.
Clothes have a lot to say about who we are. They are our personal riffs on our place in the world. And those flourishes of style are important and meaningful. But they have no place on the Supreme Court. The basic black robe is fashion perfection. It sends a singularly powerful message: I am here to uphold the law, without prejudice.
That message should stand alone. It does not need to be accessorized.
There are a few things to say about this, but let's start with the basic one: She's wrong.
Oh, she's right that the robes send a message.  And she's right about the tradition, gravitas, and dignity thing.  But that business about humility, about bland black robes suggesting that the justices who wear them (and judges, too, and magistrates; really, robes are pretty much ubiquitous among those who sit on the bench) are just ordinary folk so that you're getting justice (or whatever) from someone with whom you can feel comfortable?  That the robe "helps to ward off hubris and self-importance."  Gimme a break.
Look, there's a reason they call it "robitis."  They sit there - whether one judge or a whole sentence of judges (also known as a "bench," see James Lipton, An Exaltation of Larks) - elevated, important, running their fiefdoms courtrooms with however much autocratic rigidity they choose to arrogate upon themselves.  How else to explain the decision of Judge Littlejohn to lock up Danny Lampley, to choose just the most recent instance to make national news?
Those robes, like the elevated bench, like the fact that when we stand up in the courtroom to face the judge, we are "in the well," all of it is designed not to show that judges are just like us only learned and fair.  It's all designed to intimidate, to make clear that the courtroom belongs to the judge, not the litigants.
Oh, many judges and justices resist the temptations of grandiosity and power, but they have to resist.  When we call them Your Honor (capitalizing the initial letters in print, fergoshsakes), we're acknowledging the reality of the power relation, a relation that the robe signifies.
The problem with Rehnquist's gold braid wasn't, as Givhan would have it, that it "rank and prestige."  The robe alone does that.  The problem was that it trivialized.  When you model the court on operetta, you mock the institution and suggest that it's fatuous.
Of course, the courts often are fatuous.  As often as judges are rigid, they're foolishly pompous.  They believe their own propaganda, drink their own Kool Aid.  But they aren't supposed to advertise that.
Years ago, during oral argument in a death penalty appeal. I was explaining that the trial judge's words demonstrated that he was biased against my client, who he referred to as a "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.

1 comment:

  1. Amen. But I think we'd all be much better off if judges wore suit and tie sans the robe just like the lawyers who appear before them. Or if the lawyers and parties were required to wear robes just like the judge.