Over time, Chief Justice John Marshall’s black judicial robe has assumed a status as fabled as his opinion for the Court in Marbury v. Madison — and one that is just as steeped in myth.
The Marbury myth is that Marshall established the precedent of judicial review in the United States with his opinion for the Court in that 1803 case. The robe myth is that Marshall initiated the practice of Supreme Court justices wearing simple black robes with his determination, when he took the bench in 1801,1 to break from the tradition of justices wearing more colorful robes. An important element of truth exists in each of these origin stories. But it is even more illuminating to consider what these stories reveal about our constitutional culture.
Today, the black judicial robe is an instantly recognized and seemingly ubiquitous symbol of judicial office throughout the United States. Small numbers of judges wear different robes, like the bright red robes of the Supreme Court of Maryland. Some judges choose not to wear a robe for certain official functions, such as in some domestic relations matters. Even those who wear the black judicial robe for official functions only wear it a limited amount of time. In this respect, the judicial robe is more like a priest’s liturgical vestments than the clerical blacks and Roman collar that priests wear even when not presiding over a liturgy. The black judicial robe is the standard garb of almost all American judges, state and federal alike.
The Marshall origin story for this familiar judicial icon is attributable to the perception that U.S. Supreme Court justices have worn black judicial robes since at least Marshall’s time. However, the truth is that they have not always done so.
The familiar Gilbert Stuart portrait of our first Chief Justice, John Jay, shows him in a black robe with red sleeves and a red stole, both trimmed in white.2 A less familiar judicial portrait from around 1790 depicts Justice William Paterson — a senatorial architect of the Judiciary Act of 1789 who served on the Supreme Court from 1793 to 1806 — in a judicial robe in the same style as Jay’s.3 The many judicial portraits of Marshall, by contrast, present him in a plain black robe.4 This corresponds with press reports and other accounts of the Supreme Court justices wearing black robes in the early 1800s.5
Scholars have traced the practice to a single judge (Marshall) at one moment in time (his becoming chief justice in 1801) as responsible for establishing the black judicial robe. The most authoritative rendition of this origin story in recent decades is in Jean Edward Smith’s full-length scholarly biography, John Marshall: Definer of a Nation (1996). Smith situates Marshall’s decision to wear the black judicial robe as a break from tradition in early 1801, a decision made against the backdrop of the transfer of power from the Federalists of John Adams to the Democratic-Republicans of Thomas Jefferson.6
After the 1800 election ended in a tie for electoral votes between Jefferson and Aaron Burr, the nation was thrown into tumult for months.7 There were stretches when it looked like the fledgling nation would come apart. Yet on March 4, 1801, new-on-the-job Chief Justice Marshall swore in his second cousin and political nemesis Jefferson as president of the United States.8 Marshall had been chief justice for just a month, and he was also continuing to act as secretary of state at Jefferson’s request until his replacement, James Madison, could take over.9
In this politically fraught context, Smith singles out Marshall’s choice of the simple black robe as a deliberate change: “Breaking with tradition, [Marshall] wore a plain black robe in the republican fashion of the judges of the Virginia court of appeals. The other justices, Cushing, Chase, and [Bushrod] Washington, were attired either in the traditional scarlet and ermine of the King’s Bench or their individual academic gowns — the ‘party-colored robes of an oppressive judiciary,’ in the words of Senator Steven Thomas Mason.”10
Smith adds to this account of the contrasting robe colors some speculations about Marshall’s motives. One is that Marshall was trying to distance himself from the English-favoring Federalists and align himself with an earlier generation of Virginia jurists.11 Another is that Marshall “was uncomfortable with trappings of power.”8 Analogizing Marshall to General Ulysses S. Grant, “who wore his general’s stars on the uniform of an army private,” Smith asserts that “Marshall preferred simplicity to pomp, understatement to extravagance.”11 According to Smith, this preference for simplicity and understatement reflected Marshall’s style of judicial leadership as well: “Authority followed from ability as much as from rank, and the new chief justice, not unlike the young man of twenty who good-naturedly drilled his Fauquier county neighbors in the manual of arms, was preparing to lead his judicial colleagues onto new ground.”11
Smith’s attribution to Marshall of the switch to judicial black, and versions of his explanations of Marshall’s intent, have continued to anchor conventional accounts of the black robe’s origins, including recently. At her October 2020 confirmation hearing, for example, then-Judge Amy Coney Barrett responded to a senator’s question about the black judicial robe by explaining that “Chief Justice John Marshall started the practice. In the beginning, justices used to wear colorful robes that identified them with the schools that they graduated from. John Marshall, at his investiture, decided to wear a simple black robe. Pretty soon, the other justices followed suit and now, all judges do it.”12 This account tracks Smith’s and accurately reflected the conventional wisdom among law professors and judges as of 2020. It’s a great story. But it’s not quite right. This is one detail that Smith’s otherwise generally reliable biography gets wrong: The best evidence we have indicates that the switch to black occurred before Marshall became chief justice in 1801.
A 2021 article in the Journal of Supreme Court History by Matthew Hofstedt, associate curator of the U.S. Supreme Court, shows why this Marshall myth should no longer be believed. “The Switch to Black: Revisiting Early Supreme Court Robes” presents the fruits of years of research. Hofstedt amasses evidence strongly suggesting that all the early Supreme Court justices first wore colorful robes matching those that John Jay and William Paterson are wearing in their portraits from the 1790s.13 The switch to all-black robes appears to have come sometime near the end of that decade.14
One of the most interesting pieces of evidence supporting a switch to black in the late 1790s is Justice James Iredell’s robe. From its tattered and crumbling remains preserved at the North Carolina Historical Society, this robe appears to have been made like Jay’s and Paterson’s and then dyed completely black sometime later.11 This suggests the switch to black took place after Jay’s resignation in 1795 but before Iredell’s death in October 1799.15
Additional evidence for a pre-Marshall switch to black emerged after the publication of Hofstedt’s article. Professor Gerard Magliocca, author of a recent scholarly biography of Justice Bushrod Washington, drew attention to an April 28, 1799, letter regarding payment in full for “a black Satin Robe complete” that had been made for Washington in Philadelphia and would be delivered to him when he arrived there in August 1799 for the upcoming Court sitting.16 Washington or someone acting on his behalf presumably ordered the robe shortly after he was appointed to the U.S. Supreme Court in December 1798.17
We do not know the precise mixture of reasons for the switch to black, but the most likely explanations are practical. One reason behind the earlier decision to wear multicolored robes was probably to present a uniform appearance among the justices.18 The robes they chose, though, were specially tailored and may have been made across the Atlantic.19 This provenance presented some practical difficulties in maintaining uniformity as the Court’s personnel changed. After all, the justices were dispersed geographically much of the year, and neither the Capitol district nor a permanent home for the Supreme Court had been fixed. Standard black robes were simpler and more readily accessible.20 In any event, Marshall could not have initiated the tradition of wearing a black judicial robe in 1801 if his colleagues had made the switch earlier — and there is every indication that they had.
This is all fine and good, but who cares? Isn’t it accurate enough, after all, to say that judicial black has been the standard set by the Supreme Court “ever since the time of John Marshall”? It is here that the “truthiness” of the origin story becomes of interest in its own right.
Until the late 1800s, state judicial garb was a lot less standard than it is now.21 Many historical forces were in play, though, that made Marshall’s example powerful in the aftermath of the Civil War. One was the perception of Marshall as expounder of the Constitution par excellence, a nationalist committed to the Union. To be sure, this reputation emerged well before Marshall’s death in 1835.22 But as states’ rights forces grew in the 1830s and following decades, influential figures like Joseph Story and Daniel Webster drew from the well of Marshall’s constitutional jurisprudence to combat the centrifugal forces that culminated in secession.23 Still, the war came. After the North’s victory, Marshall’s jurisprudence guided the drafting of the congressional power provisions in the 13th, 14th, and 15th amendments.24
The legal profession also drew on Marshall’s example and influence when the organized bar emerged after the Civil War.25 In 1895, Marbury v. Madison began to be transformed from “the mandamus case,” as it was typically known before then, to what it still stands for to many now: the case in which Marshall established the concept of judicial review.26
An illustrative episode of Marshall’s influence was the creation of John Marshall Day, celebrated nationwide on February 4, 1901, to mark the 100th anniversary of Marshall’s accession to the bench.27 Organized by the American Bar Association (which was then less than 25 years old, having been formed in 1878),28 John Marshall Day was observed by the president, congressmen, senators, and justices in a joint session of Congress. Schools closed and courts adjourned across the country, and elaborate banquets were held at which jurists, lawyers, and dignitaries waxed eloquent about Marshall’s virtues.29 This was the backdrop as the legal profession more generally joined with judges and others in pushing for adoption of the black judicial robe as the standard uniform for judges in the late 1800s and early 1900s.30
Now that this Marshall-started-it myth has been busted, one might think that references to Marshall’s black judicial robe would fade away. Not so.
In their joint dissent last term from the Dobbs decision reversing Roe v. Wade and Planned Parenthood, Justices Breyer, Sotomayor, and Kagan wrote that “[when] Chief Justice John Marshall donned a plain black robe when he swore the oath of office, [he] personified an American tradition.”31 This tradition was not about what judges wear but what the “plain black robe” stands for: “Judges’ personal preferences do not make law; rather, the law speaks through them.”32 Appealing to the precedent of Marshall’s robe was the joint dissenters’ way of buttressing their argument that the Dobbs majority gave insignificant weight to the precedents of Roe and Casey.
This ongoing interest in Marshall’s robe is a good thing. Unlike Iredell’s robe, which has been irretrievably ravaged by time, Marshall’s has now been preserved. Handed down through Marshall’s descendants to the Association for the Preservation of Virginia Antiquities — known today as Preservation Virginia — Marshall’s robe required major preservation work to stem aggressive deterioration driven by the kind of dye that was used in its fabric. The John Marshall Center for Constitutional History and Civics partnered with Preservation Virginia to raise the necessary funds. We began our Save the Robe campaign in 2020 with the conventional wisdom passed along by Smith seemingly secure. The lessons we learned along the way about the more complicated history did not affect the success of the campaign. If anything, the years of research into judicial robes in the early Republic and the fragility of tangible evidence of judicial practice converged to underscore the importance of maintaining our constitutional history.
Under the expert care of a leading specialist who has overseen preservation of other priceless textiles, including the original Kermit the Frog puppet, Marshall’s black judicial robe has been restored and stabilized. The robe is now safely ensconced in a state-of-the-art, climate-controlled display-and-storage unit. Initially on display at Preservation Virginia’s John Marshall House in Richmond, Va., the restored robe is now on exhibit nearby at the Virginia Museum of History and Culture (VMHC).
Along the preservation-campaign trail, many judges shared how significant the robe was to them. Accompanying Marshall’s robe at the VMHC exhibit is a video compilation of testimonials by sitting judges — state and federal, trial and appellate — describing the significance of their own judicial robes and Marshall’s, as well as the tradition and symbolism of American judges wearing the judicial robe. These testimonies speak powerfully to the ongoing importance of passing on this tradition and supporting what it symbolizes. While some haziness remains about the history (not just of Marshall’s robe but also of judicial robes more generally), there is general agreement about what the black judicial robe stands for: It is solemn and dignified, a symbol of impartiality and uniformity.
The judicial robe has not been without its critics. One set of criticisms focuses on the robe’s perceived effects on its wearers. Critics contend that the robe makes judges haughty, better than the rest of us, above it all. There may be some truth to this for a small number of judges, but the opposite is true for most.
Judges say they like wearing the robe because they recognize it calls on them to be better, fairer, more polite, more patient, more discerning, both slower and quicker to judgment in the right degree, and so on. It is not so much that wearing the robe makes a judge a better person than that it activates their potential to be better. And for many judicial functions, it is a virtue rather than a vice to be “above it all.” In a typical adversarial dispute, the judge administers a form of commutative justice. The judge ensures that each receives his or her due vis-à-vis the other party. The judge’s job is not to pick winners and losers but to impartially administer a system of justice under law. In this sense, the black judicial robe is as appropriate for judges as black-and-white stripes are for referees in sport contests. In a well-working justice system, the identity of the judge should not be material to the quality of justice administered in any given courtroom.
With respect to this ideal, critics have argued that the robe provides a misleading impression of uniformity, one that overemphasizes legal determinacy and underemphasizes the contributions of judicial individuality. Perhaps. But the symbol is also designed to change the mixture of individuality and uniformity for the better. There is good reason to believe that it does.
At the same time, there are as many robe stories as there are judges. Neil Gorsuch is not the only new judge who went out and bought one at a choir store.33 The judicial robe has hidden many a spilled coffee or slurped soup, too. Judges have tripped over robes, gotten them stuck on things, and so on. But the robes have also helped judges navigate high-wire acts in the courtroom.
Some judges maintain routines involving the way that they put their robe on, in much the same way that some professional athletes have pre-game rituals. After putting on his robe, one trial judge reported, he deliberately pauses to reflect on its significance before he proceeds into the courtroom. Another judge we interviewed explained that he deliberately chose buttons instead of a zipper for his robe so that he would have to slow down and be more reflective each time he put it on. But most judges go with zippers — and pockets. They have a job to do, after all, and the robe is what they wear when they go to work in the courtroom.
It is a curious quirk of history that the most notable artifact of a man whose influence owes so much to force of personality and character is a black judicial gown that stands for uniformity and impartiality. In a 1920 after-dinner speech to the Illinois State Bar Association, former U.S. Senator from Indiana and John Marshall biographer Albert Beveridge attributed Marshall’s influence on the Court to his personality.34 “It was that mysterious thing that never has been analyzed, and never can be,” according to Beveridge, “that makes you care for one man while for another man, no matter how wise or rich or learned or honest or upright he is, you cannot make yourself care.”35 A key Marshallian trait in this regard was what one might term his “disagree-ability,” or the ability to disagree without being disagreeable. As Beveridge explained, “Marshall was very attractive personally — he made it extremely agreeable for his associates to agree with him. It was easy and pleasant to agree with Marshall and it was a very hard and disagreeable thing to disagree with him.” Beveridge knew well of what he spoke, for he had studied his subject carefully. The third and fourth volumes of Beveridge’s Pulitzer-Prize-winning, four-volume biography of Marshall had just been published the year before Beveridge gave this speech.
In emphasizing the influence of Marshall’s personality on his work as a judge on a multimember appellate court, Beveridge not only noted Marshall’s “kindliness, his humor, . . . his sense of humanity,” but also the way in which donning the robe had a dignifying effect on his bearing and on those around him. Consider this passage of Beveridge’s speech, for example, in which he distills several firsthand accounts that he reviewed in the course of researching his biography:
There at the Supreme Court in Washington he was always very prompt, on time, and when he would get there he would sit among the lawyers and laugh and joke and tell stories. It was said his was the heartiest laugh in Virginia or the United States. A new lawyer coming there and seeing this unimpressive old person among the lawyers at the bar could not believe it was the great Marshall. They were looking for some person with a great deal of dignity, and so forth. But the moment he stepped into the robe room there was something curious about the man, he did not carry his heart on his sleeve for all his easy familiar ways — and all accounts agree, when he put that robe on and came in at the head of the Supreme Court and the audience bowed and he bowed and took his seat, no king on a throne, no Charlemagne, no pope at the height of the dignity of the papacy, no emperor, had more dignity of bearing. There was something majestic about him.36
Whatever the transformative effect of the robe on Marshall’s dignity of bearing, Marshall remained the same person and retained the same personality with the robe on or off. The secret to John Marshall’s success as a jurist was the way in which he submerged his individual identity into the Court as an institution. By identifying himself with the Court, the Court with the Constitution, and the Constitution with the People, Marshall simultaneously came into his own with the Court and the Constitution as he blended his character into both.37 It is eminently appropriate, therefore, that John Marshall’s judicial legacy is represented with a “witness artifact” that is at once so personal — bearing his sweat and hair pomade stains38 — and at the same time so iconic for all judges.
KEVIN C. WALSH is Knights of Columbus Professor of Law and the Catholic Tradition, and co-director of the Project on Constitutional Originalism and the Catholic Intellectual Tradition, at The Catholic University of America Columbus School of Law.
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