Why Do Judges Wear Black Robes?

Photo courtesy of HuffingtonPost.com
Photo courtesy of HuffingtonPost.com

by: Meghan Collins, Graphic Designer

To wear robes and wigs, or to not wear robes and wigs: that is the question.  When the United States declared its independence from England, the Founding Fathers set out to create a government. It is not surprising that they used English common law as the basis of our society’s laws and proceedings.  Apparently, the Founding Fathers also debated judicial dress. Thomas Jefferson, and a few of his peers, wanted judges to wear suits in order to rid the vestige of the English era. John Adams, on the other hand, wanted to keep the tradition alive.  The Founding Fathers did what they did best, and compromised.  They ditched the itchy powdered wigs and kept the robes.

Supreme Court Justices wore scarlet or ermine (fur) robes in keeping with the English tradition. Chief Justice John Marshall declared that “black was the new red” during his swearing in ceremony in 1801. Marshall did not actually say those words but by simply foregoing the scarlet robe that was traditionally worn by Supreme Court Justices, he changed the dress code.[1]  Marshall was quite the trendsetter, because judges in the United States have been wearing black ever since.

As with most of our judicial proceedings, the tradition of robes came from the English, but why were the English wearing robes in the first place?

The wearing of robes by justices can be dated back to the 15th century. Judges on the King’s Bench wore scarlet, green, violet, and black robes depending on the fashions of the time. In 1635, dress rules established that violet roes should be worn in the summer and black for the winter. The dress rules also established that scarlet robes should be worn on ceremonial occasions and on circuit in criminal court.[2]

The origins of wearing the black robe, as is done today, are debated amongst historians. Most historians say that the black robe tradition in England started with the multiple-year mourning of the death of Queen Mary II in 1694.

Karen Michalson, an attorney in Massachusetts, found an engraving of a Henry Rolle, Chief Justice from the King’s Bench wearing a black robe, pre-dating 1694. She points out that “black robes were ‘in the mix’ so to speak before Queen Mary II died. It is possible, however, that the official mourning period . . . gave impetus to what was already an existing theme.”[3]

Other historians point to the scholarly tradition of wearing togas, and then robes, as the source for judicial wear. Judicial robes are a lot like the gowns worn to graduations, so the scholarly connection may prove superior.

Nevertheless, judges wear black robes because of tradition. Some states in the U.S. have rules defining what justices can wear, while most do not.  Former Idaho Supreme Court Justice, Byron Johnson, chose to wear a royal blue robe stating in a letter to his friend that he sat in the “black and blue” court.[4]

The black robes will most likely continue in the United States for a long time to come, because we are a country rooted in tradition. However, everyone, especially judges, should take a moment to thank Thomas Jefferson for convincing John Adams to nix those ridiculous powdered wigs.

[1] Cliff Sloan and David McKean, The Great Decision: Jefferson, Adams, Marshall, and the Battle for the Supreme Court 47 (Public Affairs 2009).

[2] James G. McLaren, Judicial Robes and Idaho’s “Black and Blue” Court, 41 Advoc. 14 (1998).

[3] Karen A. Michalson, Nyla asks: Why judges wear black robes? (March 30, 2011).

[4] James G. McLaren, Judicial Robes and Idaho’s “Black and Blue” Court, 41 Advoc. 14 (1998).


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