On Judges and Robes

February 13th, 2011

In today’s New York Times, Noah Feldman has a piece about the politicized Supreme Court, and makes a snarky comment about the role of the robe:

WHAT is it about those robes? They are only flimsy bits of wools, enlivened in a few cases by some very European lace at the collar. Yet the moment our Supreme Court justices put them on, a segment of the concerned public imagines that they have become priests consecrated to the sacred order of the Constitution.

If the medieval vestments are making people think the justices should be monks, then maybe, just maybe, we should to do away with those robes.

I am reminded of a comment I made in This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose.

The Court made no effort whatsoever to scrutinize any legislative history to ascertain the purpose. Rather, doffing their judicial robes and donning clerical robes, the Justices per curiam, without any citations, proclaimed that “the pre-eminent purpose for posting the Ten Commandments on schoolroom walls is plainly religious in nature.”221 The Court boldly pronounced that “no legislative recitation of a sup- posed secular purpose can blind [them] to the fact” that the Ten Com- mandments are a religious symbol.222