By: Erik M. Jensen*
In 2009, the GreenBag, which (with justification) bills itself as An Entertaining Journal of Law, published my revealing essay on judicial attire—or, more precisely, on what is hidden by judicial attire[i]—Under the Robes: A Judicial Right to Bare Arms and Legs and . . .?[ii] Along the way I hypothesized that, because a judicial robe covers almost everything anyway, judges might be underclad under their robes.[iii] That’s just good old economic efficiency in action: “On the bench, judges sort of have to wear robes—the conventions are strong and occasionally the law requires them to do at least that much—but when it comes to undercover attire, [Richard] Posner’s economic arguments point toward . . . nothing.”[iv]Why spend money for an unnecessary, extra layer of clothing?[v]
This comment is more in the way of an addendum than an update to that supposedly entertaining essay. I report on an item—itself entertaining, I think—that was available in 2009, but that I missed.[vi] I recently read Irving Younger’s autobiography, Some of My Life,[vii] published in 1991 (after his death in 1988), which covers his exploits up to mid-1974, when he joined the Cornell Law School faculty.[viii] Poet, trial lawyer, judge, law prof, and bar-review lecturer extraordinaire, Younger provided a nice story about his attire while sitting on the Civil Court of the City of New York between 1969 and 1974.[ix]
When Younger was elected to the bench,[x] a senior Appellate Division judge conducted an orientation session for Irving and other newbies. One of the lessons had to do with judicial dress’s being a dress:
Your costume as a judge is the judicial robe. . . . You always wear it in court. Now, it’s a long garment, like a lady’s evening gown, and it comes down to the top of your shoes. None of you, referring to the men, has spent much time wearing a dress. You have to learn how to do it. If you don’t learn how to wear it, you’re going to take the bench on the morning of your first day. You’re going to sit down in the great big judge’s chair they have for you up there. That chair is on rollers. And if you don’t swirl the skirt of your robe just right as you sit down, it’s going to catch under a roller on your chair. But you won’t know it’s caught. You’re going to sit there being a judge, and then you’re going to declare a recess, and you’re going to stand up, but your robe is going to be stuck, and you’re going to be moving up while your robe is pulling down, and if you stand up hard enough, you may break your neck. So … [p]ractice wearing the robe.[xi]
That’s good advice, and Younger quickly learned how to swirl his robe, never (so far as I know) getting it caught in chairs, elevator doors, bicycle chains, or anything else.[xii] And he came to learn that a robe’s value is practical as well as ceremonial, which (finally!) brings me to the point of all of this—the connection to my earlier essay.[xiii] On one occasion Judge Younger and wife, Judith, had opera tickets for the evening—to follow his long workday in court. After calling a recess at about 3 p.m., and hearing (and feeling) the call of nature, Irving used the private restroom in his chambers. To his horror (or so he said),[xiv] he discovered that the zipper on his pants had broken, and, as he put it, “without trousers, it was hard to see how I could go to the opera.”[xv] With no time to get home for sartorial reinforcements, he asked (ordered?) a skeptical court officer to take the trousers to a tailor for a quick zipper repair. In the meantime, sans trousers, Younger returned to the courtroom suitably robed.
Success. The robe “came down to the floor and, if it swayed as I walked or hiked up as I sat, all one saw was a bit of sock above a shoe. I presided over the rest of that day’s session in court wearing beneath the robe nothing from waist to feet but a pair of jockey shorts.”[xvi] And he wrote that no one, other than the court officer (and Younger himself, of course), knew about the cover-up—until the book came out.[xvii]
Oh yes, the court officer did his job, returning with efficient breeches,[xviii] and the Youngers made it to the opera fully clothed.[xix] All’s well that ends well, although the soprano probably died from TB, jumping from Castel Sant’Angelo, committing hara-kiri, being buried alive, or something else equally awful.[xx] You can’t take opera out of the opera.
I concede that this one example of bare skin under a judicial robe doesn’t prove that judges are often pantsless, shirtless, or whatever-less on the bench. But it does show that that’s sometimes the case, and that’s a piece of evidence for scholars of judicial attire to ponder. Science marches on.
[i]Transparency isn’t a virtue for judges.
[ii]Erik M. Jensen, Under the Robes: A Judicial Right to Bare Arms and Legs and . . .?, 12 Green Bag 2d221 (2009).
[iii]See id. A robe can also hide a non-judge—for a while. SeeJacob Gershman, Illinois Judge Accused of Letting Clerk Dress in Judicial Robe and Hear Cases, Wall St. J.: Law Blog(Aug. 18, 2016), https://blogs.wsj.com/law/2016/08/18/cook-county-judge-accused-of-letting-law-clerk-hear-cases-in-robes/. The cases that had been heard by the clerk were minor traffic offenses, and those cases were reheard by a real judge. Id. No big deal, right? Wrong. The clerk was a candidate for a judgeship, but, because of the robing controversy, she was suspended from the practice of law and enjoined, at least temporarily, from taking any judicial oath. SeeMorgan Yingst, Illinois Supreme Court Disbars 1, Suspends 12 in Latest Disciplinary Filing, Ill. St. B. Ass’n(Nov. 21, 2016), https://www.isba.org/iln/2016/11/21/illinois-supreme-court-disbars-1-suspends-12-latest-disciplinary-filing. Worse yet, facing criminal charges and permanent loss of her law license, she committed suicide. SeeTodd Lighty, Records Detail Orderly Suicide of Lawyer Accused of Impersonating Cook County Judge, Chi. Trib. (July 17, 2018), https://www.chicagotribune.com/news/local/breaking/ct-met-fake-judge-rhonda-crawford-suicide-20180717-story.html. And the judge who let the clerk don the robe was ordered to retire, presumably because of Alzheimer’s. SeeIn re Turner, No. 16-CC-1 (Ill. Courts Comm’n, Dec. 1, 2017), https://www2.illinois.gov/sites/jib/Documents/Orders%20from%20Courts%20Commission/Turner.pdf.Verysad.
[iv]Jensen,supra note 2,at 225–26. My bottom line (i.e., my line, not my bottom): “If you lift up many judges’ robes, . . . you’ll see lots of bottoms (before you’re carted off to jail).” Id.at 227.
[v]I didn’t mean to suggest that then-Judge Posner was scantily clad on the bench, but he might have been. (I’d like to think so, and not because of any prurient interest.)
[vii]Irving Younger, Some of My Life: An Autobiography(1991).
[viii]Which must have meant there was no longer anything interesting to write about. Ithaca and law students, you know. (Full disclosure: I had courses at Cornell from both Irving and his wife, Judith, in the late 1970s. During that time, Irving dressed professionally (with no robe)—Judith too—but then nearly all law professors did. That’s no longer the case. See(in a way that increases my download count)Erik M. Jensen, Law School Attire: A Call for a Uniform Uniform Code, 32 Okla. City U. L. Rev.419 (2007).) Irving returned to law practice in 1981, and in 1984 both Judith and he joined the University of Minnesota law faculty. Judith remains on the faculty. SeeJudith T. Younger, Univ. of Minn. L. Sch., https://www.law.umn.edu/profiles/judith-t-younger (last visited Sept. 25, 2019).
[ix]That court hears matters with relatively little at stake economically—under today’s rules no more than $25,000. SeeNYCOURTS.GOV, https://www.nycourts.gov/COURTS/nyc/civil/general.shtml.
[x]He got the Democratic nomination because the district was thought to be safely Republican (in New York!), and no one else wanted the nomination. Younger,supranote 7, at 205 et seq.
[xii]That’s more than can be said for Neil Gorsuch, who, in his opening statement at hearings on his Supreme
Court nomination, said that “I’ll never forget my first day on the job [as a Tenth Circuit judge]. Carrying a pile of papers up steps to the bench, I tripped on my robe and everything just about went flying.” SeeHere’s Justice Gorsuch’s Full Opening Statement, NBC News(Mar. 20, 2017),https://www.nbcnews.com/news/us-news/here-s-judge-gorsuch-s-full-opening statement-n735961 [hereinafter Opening Statement], reprinted inNeil M. Gorsuch, A Republic, If You Can Keep It316, 320 (2019). His wife later told him, “Neil, you have to lift your hem as you climb stairs.” Quoted in Kyle Peterson, The High Court’s Rocky Mountain Originalist, Wall St. J.: The Weekend Interview(Sept. 7, 2019), https://www.wsj.com/articles/the-high-courts-rocky-mountain-originalist-11567792378.
In the Opening Statement, Judge Gorsuch compared judicial attire in the U.S. to that “[i]n other countries, [where] judges wear scarlet, silk, and ermine. Here, we judges buy our own plain black robes. And I can report that the standard choir outfit at the local uniform supply store is a pretty good deal. Ours is a judiciary of honest black polyester.” Opening Statement, supra.
Judges’ robes may be made ofpetroleum-based fibers, but not all are boring. Inspired by Gilbert and Sullivan, Chief Justice William Rehnquist gussied up his black robe with four gold braid stripes on each sleeve. SeeJensen, supranote 2, at 222–23 n.8. Some court systems have reacted negatively to innovative dress, however. See, e.g., Fla. R. J. Admin. 2.340 (“During any judicial proceeding, robes worn by a judge must be solid black with no embellishment.”) (adopted in 2015); see alsoJacob Gershman, Legal Style: Florida’s Judges Must Wear Black, Wall. St. J. (Sept. 11, 2015), https://www.wsj.com/articles/legal-style-floridas-judges-must-wear-black-1442012533?ns=prod/accounts-wsj (suggesting the Florida Supreme Court “fear[ed] that less austere attire could cause litigants to doubt a presiding judge’s seriousness”). Having a dress code wasn’t well received by all Florida judges. See id. (quoting a circuit judge and former Marine, who complained that, “at the age of 57, I am not trusted to dress appropriately”).
[xiii]See Jensen, supra note 2.
[xiv]Actually I suspect he saw a great story coming out of this.
[xv]Younger,supra note 7,at 223. Whether, given declining sartorial standards and the Metropolitan Opera’s financial woes, a pants deficit would keep a man from being admitted to the opera house these days isn’t clear. Assuming he paid to get in, a pantsless (and kiltless and skirtless) guy might well be welcomed (although not with open arms, one assumes), and then seated immediately.
[xvii]Id.Yeah, I know what you’re thinking, and I agree: Surely he told Judith.
[xviii]I suppose there’s a question as to whether a court official ought to be running errands of this sort on the public’s dime. But whether doing this was really part of “his job” is a subject for another (and somebody else’s) time.
[xix]Well, Irving at least; I don’t know about Judith. And I don’t know what the opera was. It would’ve been fitting if it had included a trouser role. Der Rosenkavaliermaybe.
[xx]At least her stage life would have ended on a high note.
*Coleman P. Burke Professor Emeritus of Law, Case Western Reserve University.