Why We Hate To Love Judges

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Marshall, a notoriously careless and sloppy dresser, wore a robe on the bench. However, Holmes, during almost all his state-court service, sat in his English-tailored suits because a century earlier the Massachusetts judges had renounced the robe. The matter of judicial attire bespeaks Americans’ ambivalence toward our judiciary. A robe imparts a solemnity that street clothes do not; it also suggests an Olympian quality in the wearer. Beyond that, the shape and blackness of the robe evoke images of a priest handing down the word of the Lord. The physical elevation of the bench intensifies the idea of lofty separation from the rest of humankind. Looking up at the robed judge, it is hard to remember that originally judges wore robes simply to keep warm in drafty, barely heated courtrooms.

A judge wearing business clothes, on the other hand, is someone just like the rest of us. It is no coincidence that Massachusetts judges resumed the robe after Holmes became chief justice there, not because he ordained it but because the bar actually petitioned the court to restore the formality. Perhaps the lawyers believed that justice is more nearly the pure article if whoever dispenses it looks solemnly unapproachable.

Judges know better. As if to emphasize that it is the human within the cloak who matters, Chief Justice William Rehnquist has taken to presiding, even over a presidential impeachment trial, in a robe of his own design featuring gold sleeve decorations. He is said to have drawn his inspiration from the lord chancellor’s regalia. Not the lord chancellor of Britain but the character in Gilbert and Sullivan’s Iolanthe . Thus, even in the judicial empyrean, life follows art.

We Americans do not know what we really think of our judges. Even in fiction, our uncertainty stands out. Are they heroes or villains? Recall the calm and judicious Judge Weaver in Anatomy of a Murder (written, incidentally, by a sitting member of the Michigan Supreme Court), especially as played by that homespun lawyer from State Street, Boston, Joseph Welch, who himself contributed to the image of American justice by his famous confrontation with Sen. Joseph McCarthy. And remember Lewis Stone playing the kindly, wise Judge Hardy, father to Mickey Rooney’s Andy. But then remember Hawthorne’s cruel Judge Pyncheon, in The House of the Seven Gables .

Perhaps the best historical example of our schizophrenic treatment of judges came during Franklin D. Roosevelt’s so called court-packing scheme. Frustrated, as were many Americans, by the Supreme Court’s consistent rejection of laws calculated to meet the stresses of the Depression, Roosevelt conceived the idea of bringing additional Justices to the Supreme Court, ostensibly to aid in the work but actually to provide a majority that would sustain his New Deal legislation.

It was not the most straightforward way of solving the logjam, but given the need for progress, neither was Roosevelt’s plan entirely irrational. After all, Congress had changed the Supreme Court’s number of seats at various times in the past. Indeed, in light of the tremendous electoral victory he won in 1936, Roosevelt might plausibly have believed that the country would continue to support him in this fight.

He miscalculated badly. Led by the astute Chief Justice Hughes, popular resistance to any kind of tampering with the Court buried Roosevelt’s scheme under an avalanche of sentiment. However loud the popular dissatisfaction with the failure to sanction badly needed legislation, the American people were resoundingly unwilling to vent their rage either on the Court itself or on the Justices personally.

No surprise. We may hate judges, but we have never stopped loving them.