Lest We Forget: The Glory and the Burden of the Unadorned Black Robe

A growing number of judges are modifying the simple black robe — from a rural Florida judge’s camouflage pattern to others presiding in business attire. The trend expands on the precedent set by our highest jurists, such as Chief Justice William Rehnquist’s gold-striped sleeves and women justices who have accessorized their robes with decorative collars, including Justice Ruth Bader Ginsburg’s well-known “dissent collar.”

Such touches may humanize the judiciary, but I fear they suggest we are forgetting the purpose of the unadorned black robe.

The formless black robe signals to the public — and reminds us — that a judge’s chief responsibility is to set aside our own personality and preferences when deciding cases. We are, or should be, fungible voices of the law. This ideal is the primary message of the black robe, and it is undermined when we individualize our robes to highlight our personalities or backgrounds with flashy clothes, various colors, or decorative touches.

Many things follow the discipline of wearing the simple robe. It begins with our conduct in court. Unlike politicians or celebrities, whose hallmark is to speak or perform, a judge’s defining act is to listen. As Francis Bacon observed four centuries ago, the worst judges show “impatience to hear” and “willingness to speak”⁸ — for, as he quipped, “an overspeaking judge is no well-tuned cymbal.”

The black robe symbolizes a judge’s acceptance of a great unwritten, self-denying ordinance governing all judges, beyond the more severe ethical rules. A judge must accept a level of self-effacement — of self-abnegation completely at odds with the freedom of members of the political branches.

For a conscientious judge, the great difficulty is when society, with its technologies, social developments, and scientific insights, has moved beyond existing law. The law, which looks to how past disputes were resolved, is constantly chasing after but never catching up to the dynamic society it seeks to govern. In these circumstances, the black robe reminds us that “the tendency of judges to find society’s values in their own is a constant danger.”⁹

Our constitutional history reflects times — for example, in the lead-up to the Civil War or during the Lochner era — when self-assured, well-meaning judges confused their personal policy preferences with law, causing disastrous consequences, not just for the republic at large, but also for the legitimacy of the courts themselves. As one judge recently noted, in our political tradition, “unrestrained courts produce unrestrained backlash.”¹⁰

Justice Oliver Wendell Holmes Jr. served when legislatures began experimenting with free-market interventions such as maximum working hours. Many judges, convinced that the freedoms of laissez-faire economics were essential to political freedom, found that these violated substantive due process. Holmes cautioned that judges are “naif [and] simpleminded” when we mistake our personal preferences for those of the law.¹¹ Whether we find legislation “natural and familiar, or novel, and even shocking,”¹² he cautioned, is mere “accident.” Judges, he admonished, “need an education in the obvious — to learn to transcend our own convictions,”¹³ for only such independence from our own personal predilections justifies our rightful place as independent from the political branches.

When we enter a courtroom wearing the black robe, we remind the public — and ourselves — that we are setting aside our personal views and speaking only when we can identify and articulate the impartial voice of the law. This self-effacement is the sum and substance of “the tradition of detachment and aloofness,” Judge Learned Hand wrote in 1946, “without which . . . courts and judges will fail.”¹⁴ We should not forget that this is the true glory and the burden of donning the unadorned black robe.

THOMAS LOGUE serves on Florida’s Third District Court of Appeal in Miami. He was appointed in 2012 and recently finished a term as chief judge. He graduated in 1982 from Duke Law School, where he served on the Duke Law Journal.

1. Francis Bacon, LVI. Of Judicature, in The Works of Francis Bacon, 58, 58 (Basil Montagu ed., 1884).
2. Ruggero J. Aldisert, Opinion Writing 64–65 (Carolina Acad. Press 2012).
3. Richard A. Posner, Reflections on Judging 175 (2013).
4. Justice Oliver Wendell Holmes Jr., Law and the Court, in The Mind and Faith of Justice Holmes, His Speeches, Essays, Letters, and Judicial Opinions 390 (Max Lerner ed., 1943).
5. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), abrogated by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
6. Holmes, supra note 4.
7. Learned Hand, Concept of Judicial Function, in The Spirit of Liberty: Papers and Addresses of Learned Hand 201, 207 (Irving Dilliard ed., 3rd ed. 1974).
8. Francis Bacon, LVI. Of Judicature, in The Works of Francis Bacon, 58, 58 (Basil Montagu ed., 1884).
9. Ruggero J. Aldisert, Opinion Writing 64–65 (Carolina Acad. Press 2012).
10. Richard A. Posner, Reflections on Judging 175 (2013).
11. Justice Oliver Wendell Holmes Jr., Law and the Court, in The Mind and Faith of Justice Holmes, His Speeches, Essays, Letters, and Judicial Opinions 390 (Max Lerner ed., 1943).
12. Lochner v. New York, 198 U.S. 45, 76 (1905) (Holmes, J., dissenting), abrogated by W. Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937).
13. Holmes, supra note 4.
14. Learned Hand, Concept of Judicial Function, in The Spirit of Liberty: Papers and Addresses of Learned Hand 201, 207 (Irving Dilliard ed., 3rd ed. 1974).