No, this is not another post about former Nevada District Judge Elizabeth Halverson (WARNING: Photo not for the squeamish).  Rather, the New York Times, perhaps in honor of Fashion Week or for lack of any legal news coming out of the Republican National Convention, has chosen to focus on that hallmark of judicial office, The Robe.

In the United States, judges have been less attached to such grand garb. Robes were not even a necessary part of their attire in the decades after the Revolutionary War, though it eventually became the accepted fashion. But even today, New York does not require judges to wear robes, and various judges spurn them altogether from time to time, or at least try to wear them with a bit of flair.

That’s right.  New York judges can be mavericks, at least when it comes to the latest judicial fashion.  Not so for others, however.

John Jay, a former New York governor and the first chief justice of the United States Supreme Court, is captured in many pictures wearing a scarlet and black robe with silver trim.

When John Marshall, who became the chief justice of the Supreme Court in 1801, donned a plain black silk robe, it was actually seen as a radical departure from the scarlet and ermine robes that the other justices wore, according to a biography written by Jean Edward Smith.

The late chief justice William H. Rehnquist wore gold stripes on his sleeves. Supreme Court Justice Ruth Bader Ginsburg is known for the lacy jabot around her neck, an accessory that may be more about necessity than style, said Judith S. Kaye, the chief judge of New York. Judge Kaye said the V-cut of robes makes for an awkward fit for women, while a perfect fit for a man with a shirt and tie.

“If you wear an open blouse or something, you look strange,” she said.

Robes are, of course, sexist, but then they came about at a time when women were barefoot and pregnant.  Of course, it would be undignified to quip about Judge Kaye’s concern about looking “strange”.

For most of us, we’ve never given judicial robes a second thought.  There was the raging controversy when Rehnquist put the gold stripes on his sleeves, purportedly in homage to Gilbert & Sullivan, as he was a big opera fan.  But having crawled from dissenting outsider to Chief Justice in a political blink of an eye, he had the power to assume the robed persona of a drum majorette for a small midwestern trade school. 

When you think about it, the robes worn by judges are one of the few trappings of office maintained in the United States.  No other officeholder is expected to wear a costume as proof of their authority, leaving the judiciary to stand alone.

Although the judicial robe’s origin remains uncertain, some believe it has its origins in the church, when the clergy and judiciary were one and the same. Robes appeared in the British judiciary in the 14th century, according to one law journal.

After America won its independence, the judges on the New York Court of Appeals gave up robes to try to get away from the pomp and ceremony of the British, said Albert M. Rosenblatt, a retired judge who is president of the Historical Society of the Courts of the State of New York.

But in January 1884, David Dudley Field, a prominent lawyer, petitioned the court to wear robes, saying, “The garment is no more a badge of monarchial than of republican office.”

While David Dudley Field’s assessment may be more than a little lacking in foundation, that’s not to say that judicial robes serve no purpose.  Much like courtrooms themselves, built with the express purpose of conveying the majesty and power of the state so that litigants, particularly criminal defendants, are shocked and awed, robes distinguish the judge from mere mortals.

While this may make them sound pompous, the fact is that the judiciary is the only branch of government without access to a decent cadre of armed enforcers, leaving them to enforce their decisions largely by virtue of their reason and our respect.  Wearing a robe, a reminder that they sit in judgment while the rest of us are just regular folk, helps.  Sure, it’s a bit of a stage show for the benefit of the system, but at the same time the system could use such a show to fulfill its purpose of having one person in the room making decisions that everyone else should respect.  Theoretically, that’s the way a court should work.

But some judges mistake the trappings of office for the need to earn the respect belying those trappings.  We’ve all met such judges, who relish the robe, the gavel, the big chair, the booming yet disrespectful manner of speaking to those standing in the well beneath them, and most of all, the decisions that are unworthy of respect.

Justice [Bruce] Allen said respect for the robe was not to be mistaken for a reliance on it.

“If you can’t pull it off without a robe,” he said, “you can’t pull it off.”

So accessorize your robe any way you want.  One judge with whom I was very familiar loved to wear chokers, so that her jewelry could be seen above the unflattering v-neck of her robe.  This was the source of many a quip, with more than a bit of sincerity behind them.  But while the robe may denote your rank in the courtroom, it’s just a symbol.  No matter how colorful your scarf, or how many golden stripes line your sleeves, if you want to be respected as a judge, you still have to earn it.

And black is slimming, so if you look fat in your robe, you have other problems.