Chief Justice Roberts: Will He Ditch the Gold Stripes?

The superstitious Article III Groupie doesn't want to "jinx" him, but right now it's looking pretty darn clear that by this Thursday, Judge John G. Roberts, Jr., will have won Senate confirmation to serve as the next Chief Justice of the United States. So it's now safe to start thinking about what life will be like at One First Street under Chief Justice Roberts, who will soon be filling the shoes of his former boss and mentor, the late Chief Justice William H. Rehnquist.

Back in this post, A3G asked her readers whether anyone knew "whether Chief Justice John Roberts would retain the four gold stripes on each sleeve that were added to the Chief Justice's robe by Rehnquist, circa 1995?" UTR readers didn't have much to say on the subject of what Chief Justice Roberts might do with the robes. But A3G did find some interesting thoughts on the topic from other sources.

As it turns out, a three-judge panel of leading legal analysts has split on this critical issue about the Court's future direction. See Gold Stripes v. No Stripes, -- F.3d -- (2005) (Mauro, J.) (observing, with respect to whether Roberts will retain the Rehnquistian gold bars, that "[t]he betting is against it") (citing Professors Thomas Baker and Harvey Rishikof, who both worked for Rehnquist); id. at *2 (Bashman, J., concurring) ("I'd say Chief Justice Roberts would be unlikely to retain the stripes given their original intent."). But see id. at *3 (Althouse, J., dissenting) ("I say he should keep the stripes as a tribute.").

What does A3G think? She is inclined to agree with the majority view, based on evidence from the Roberts confirmation hearings. For the most part, the hearings were extremely uneventful. As the always amusing Professor Richard Epstein put it, over at the L.A. Times's LiveCurrent blog, the hearings were "most soporific." But the hearings did shed some light on Judge Roberts's plans for the Chief Justice's robe.

In this op-ed piece for the New York Times, Professor Jean Edward Smith explained the origin of the black robes and suggested that Judge Roberts be asked at his confirmation hearings about his sartorial plans for the Court:

One of John Marshall's first actions upon becoming chief justice was to take his colleagues out of their multicolored robes and put them in simple black. Do you intend to revert to that tradition, and retire that Gilbert and Sullivan chief justice costume William Rehnquist designed?

Despite Professor Smith's suggestion, Judge Roberts was not explicitly asked at his confirmation hearings for his views on robe design. But Judge Roberts's remarks on other issues hinted at what he might do in this area.

At his hearings, Judge Roberts spoke warmly about his former boss and late mentor, Chief Justice Rehnquist. This might suggest that Chief Justice Roberts would retain the gold bars, as a tribute. But Judge Roberts also emphasized at the hearings that he would "be his own man" on the Court, leaving room for repudiation of Rehnquist's fashion legacy at the Court. And other remarks by Judge Roberts were even more enlightening, suggesting that Chief Justice Roberts will remove the gold stripes.

The Roberts confirmation hearings could be viewed as a semiotic struggle over the judge's black robe as symbol. As shown in the hearing excerpts collected here, some members of the Senate Judiciary Committee took a somewhat negative view of the black judicial robe, implicitly setting it up in opposition to positive values such as individuality and compassion:

Senator Arlen Specter (R-PA): Great justices are more than just legal automatons, legal technicians. They are more than just that. And though they lose their individuality when they put on a black robes, great justices never forget who they are.

Senator Mike DeWine (R-OH): When you put on that black robe and assume your spot on the Supreme Court, you will surely bring with you your heart and your soul.

Judge Roberts, however, took a very different -- and much more positive -- view of the black robes. Consider this exchange (available here):

GRASSLEY: Well, is there any room in constitutional interpretation for the judge's own values or beliefs?

ROBERTS: No, I don't think there is. Sometimes it's hard to give meaning to a constitutional term in a particular case. But you don't look to your own values and beliefs. You look outside yourself to other sources.

This is the basis for -- you know, judges wear black robes because it doesn't matter who they are as individuals. That's not going to shape their decision. It's their understanding of the law that will shape their decision.

Judge Roberts's rhetorical move here is noteworthy. He is deliberately deploying the plain black robe as a powerful trope, invoking it as a symbol of objective and unbiased judging. This suggests that he will be ditching the gold-striped robe and replacing it with a simple black one, to emphasize his impartiality as a jurist -- a theme that he repeatedly sounded before the Judiciary Committee.

On October 3, when he emerges from behind that curtain in the courtroom at One First Street, look for Chief Justice Roberts to be sporting an unadorned black robe. It will be exactly like those of his colleagues, to show that all nine of the justices decide cases based on the facts and the law, not based on their individual views or personal preferences. As fashionistas like A3G might say, when it comes to judicial robes, "Black is the new black!"

Comments

[Paul Ajlouny]

I think having a unique robe for the Chief Justice is a great idea. I don't really understand why there wasn't some form of attire symbolizing the head of the court BEFORE Rehnquist added the stripes.

[Ubertrout]

He seems to have ditched the stripes.

[BA]

Looks like the gold stripes didn't make it...

Roberts wore a plain black robe, without the gold arm stripes that had been used by his predecessor, William H. Rehnquist.

http://news.yahoo.com/s/ap/20051003/ap_on_go_su_co/scotus_6

[Ali Karim Bey]

A3G --

I still think it will be Larry Thompson or Judge Callahan.

The news about Harriet Miers is funny. She is like a SC search committee chair. If she gets the spot, then she would be doing a "Cheney". (Hint: Cheney was a VP search committee chair. He then got the job.)

AKB

[Simon]

Until I read O'Connor's story about the origin of the stripes, I had presumed that their were four on each arm to signify the four Justices who take their seats on each side of the Chief Justice. With that idea in mind, it seems an emminently sensible design for the chief Justice's robe, and I think Roberts, C.J., should continue the tradition.

[John]

A3G, I must admit I'm a bit surprised to find you're so conversant with a postmodern critical discipline like semiotics. I was wondering if you could elaborate on the struggle you alluded to in your post; I presume it to be that between the black robe sans stripes as a signifier for the "first among equals" concept of the chief justice, and the gilbert and sullivan garb as a signifier for, well, what exactly? A more self-indulgent jurisprudence?