This isn’t a novel insight but it bears repeating: no two judges are the same. They grew up in different families; had different careers; have different interests; and operate with different intuitions. Yet judges in the United States—at least as a rule—wear the same uniform: a plain black robe.*
Recently, however, Noah Feldman—one of the nation’s leading constitutional scholars—opined that judges should not be required to wear black and suggested that they should be allowed to even “wear bright pink or (shocking!) no robes at all.” After all, this would allow judges to “express individuality in their garb,” which may “enhance” a judge’s “individual charisma, and probably without much cost to their institutional authority.” Moreover, “putting authority figures in black is supposed to enhance their authority and power. The judge’s black, like the priest’s or the imam’s or the rabbi’s, is simultaneously the black of mystery.” Feldman contends that it would do the system good to tone down the mystery. “The public is in fact sophisticated enough to understand that judges are humans, not automatons or Turing machines. Judges almost universally aspire to apply the law fairly, without favor or partiality. That aspiration is the source of their authority, not how they look or what they wear.”
Feldman is smart and makes good points. But as I have been reflecting on his thoughts, it strikes me that they may be incomplete. Even assuming judges wear black to impress the public, they also surely wear black to remind themselves that judicial review requires modesty and that uniformity—the idea that like cases should be treated alike—is a judicial virtue. As Judge Neil Gorsuch has explained, wearing black “serves as a reminder of what’s expected of us—what Burke called the ‘cold neutrality of an impartial judge.’ It serves, too, as a reminder of the relatively modest station we’re meant to occupy in a democratic society. In other places, judges wear scarlet and ermine. Here, we’re told to buy our own plain black robes—and I can attest the standard choir outfit at the local uniform supply store is a good deal. Ours is a judiciary of honest black polyester.”
One of my favorite things about the law is the fact that judges really try to get it right. As Lawrence Solum has explained, when it comes to judicial behavior, a “purely ideological model does not fare well” in the real world. In other words, as Feldman rightly notes, judges do act contrary to their ideological preferences. And Feldman is also correct that the main reason why this is true is because of an “aspiration”; judges aspire to be fair.
But aspirations, no matter how strong, are often forgotten in the hurly-burly workaday world. That is why society strives to cultivate a culture that helps support those aspirations. At first blush, for instance, having children repeat the Pledge of Allegiance day after day may seem bizarre, but yet it may help foster a culture that focuses on “liberty and justice for all.” Other cultural devices (e.g., every speech ever given in a meeting in which new lawyers join the bar) and images (e.g., Lady Justice wearing a blindfold) also help remind us of that lofty goal. No doubt, all too often we fall short of that aspiration, but I suspect we would fail even more often if we did not take concrete steps to remind ourselves of what is right. Likewise, even if the day we choose to celebrate New Year’s is arbitrary, the act of celebration is not capricious. In a similar way, a wedding ring is a tangible reminder of deep aspirations. Small acts that help us focus on our deepest goals are important because otherwise what matters most can be forgotten.
I don’t want to overstate my claim. I agree the sky would not fall if judges could freelance. I also have no problem with a judge wearing a tactful collar or the like; that does not seem contrary to the nation’s tradition of what judges ought to wear. But when judges depart from tradition, I fear that something, sometimes, may be lost. After all, even if the color is arbitrary (and, like Feldman, I doubt it is arbitrary, at least in our culture), in this context, uniformity is important. Even the simple act of putting on a robe can remind judges of their deep aspiration to be fair—again, like a wedding ring, in a very tangible way. No doubt, as with other aspirations, judges sometimes fall short. They are human. But reminders help.
The D.C. Circuit’s cases this week are both unanimous. Anglers Conservation Network v. Pritzker (authored by Judge Randolph, and joined by Judges Brown and Sentelle) is about river herring and shad. The fight is whether those fish should be added to a management plan. According to conservationists, the Mid-Atlantic Fishery Management Council should have listed them but didn’t. They argue that this decision violates the Magnuson-Stevens Act’s charge to “promote domestic commercial and recreational fishing under sound conservation and management principles.” For various reasons, however, the court concluded that neither the Magnuson-Stevens Act nor the APA provided for judicial review. (This is an interesting case, especially if you are interested in litigation involving multiple agencies.) In the week’s other case, In re Sealed Cases, Judge Ginsburg—for Judges Srinivasan and Williams—found that even though the appellant had completed his sentence, he was still entitled to judicial review of it because it was not “unduly speculative” that his supervised released time would be shortened if his claims were successful. Ultimately, however, the court rejected the arguments on the merits. This uniformity is common. Even though D.C. Circuit judges are a diverse bunch confronting hard issues, it is gratifying—though not always conducive to blogging—that there aren’t many dissents (this may be the most recent one).
* One way that judges differ is in their view of scholarship. Some judges used to be professors and pay close attention to the academy. Some who were practitioners don’t see the value. Of course, some judges were practitioners who pay attention to what the professoriate is up to because they find it interesting. I clerked for Judge Jerry Smith. More than a dozen of his clerks are now law professors. This is not by accident.
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