by David Isle


Politics has become the elephant in every American room. No matter how innocuous the interaction, the political elephant lurks, watches, farts. At least until Don Jr. shoots it and Paul Manafort makes a jacket out of it (hey-o!). 

The elephant has no longer tenure, and is nowhere more assiduously ignored, than at the Supreme Court of the United States. But many of the Court’s most famous and important decisions have political dimensions. For instance, the Court’s verdict on that case each of us adjudicates every morning: what to wear.

For the first few years of the Supreme Court’s life, its justices wore scarlet and ermine robes, fashioned after those worn by English judges of the time. The English judiciary was more a subsidiary of the Crown rather than an independent branch of government, and therefore dressed as courtiers to the king. 

The American Supreme Court was, and is, a separate branch, but initially struggled to make itself equal to the other two. The legislative branch was given tremendous powers by the Constitution, and gets first billing in the Constitution by having its powers described in Article I; the executive branch follows in Article II and gained immediate respect and legitimacy through the first president, national hero George Washington; the judicial branch limps behind in Article III. The Court had little power; no one even really wanted to be a Justice. The first Chief Justice, John Jay, resigned after a few years to become Governor of New York. 

The political weakness of the Court was surely only made more salient and ridiculous by their pompous royal dress. Justice William Cushing at first wore a British-style judicial wig to the Court’s first meeting in 1790, only to face so much ridicule in the street on the way to the meeting that he went home and changed into a less pretentious wig. 

This all changed when John Marshall became Chief Justice in 1801. To take his oath of office, Marshall wore not scarlet and ermine, but a plain black robe, as was the habit of judges on the Virginia court of appeals. Marshall rightly saw that a black robe was more fitting for a servant of a republic, the first of many decisions that earned the Court more legitimacy in the eyes of the public and therefore deference from the other branches of government. 

For the most part, Justices have followed Marshall’s example in wearing plain black robes. One exception was William Rehnquist, who as Chief Justice wore a robe with four gold stripes on each sleeve (apparently in imitation a character in the Gilbert and Sullivan operetta Iolanthe). Chief Justice Roberts has not respected this precedent, returning instead to the plain black robe of the other Justices.

One of the early controversies in Congress was what President Washington’s official title should be. The Senate suggested that Washington should be addressed as “His Highness, the President of the United States of America, and Protector of their Liberties.” Washington disliked the grandeur of this title, and was relieved when the House of Representatives proposed the simple title used by every president since, “The President of the United States.” Washington and the House recognized what Marshall recognized in his choice of a black robe - that Presidents and Justices are already clothed in the awesome power of the people, whom they serve, and need no further adornment.