Federal Judiciary

Underneath Their Robes

By AndrewHyman

There's some discussion at the end of this September 03, 2009 video about attire of the female justices. It probably wouldn't matter much if the justices were to show up in transparent robes (or birthday suits), but still there is some merit in a plain black robe without frills. That tradition of plain black robes without frills was introduced by Chief Justice Marshall, and Chief Justice Roberts has explained the reason concisely:

[J]udges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.

So, if male justices have a low collar that allows them to show off their neckties underneath the robes, then female justices can put on something underneath their robes that also is visible with the same low collar. The robe itself ought to remain plain black, per Marshall and Roberts and every chief justice in between (except for Rehnquist who was "jealous of the Court's female justices"), IMHO. Grounds for impeachment? Probably not.

Judge Patricia Wald has written:

?[t]he black robes we wear on the bench unite us in their lack of distinguishability; they make a simple but striking point: We are neither Democratic judges nor Republican judges but, simply, United States judges.? ---Judge Patricia Wald

And Justice Stephen Breyer has a similar viewpoint:

?I have always thought that one of the reasons we wear black robes is that justice should be anonymous. The rule of law should be independent of the personality of the judge that happens to be hearing the case." ---Justice Stephen Breyer

Hat Tip: Orin Kerr at Volokh Conspiracy.

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Full post as published by ConfirmThem on September 05, 2009 (boomark / email).