Courting Fashion
By Richard Eadie
“I can’t hear you. I can’t hear you,” judges would respond to a lawyer found lacking in some detail of court costume. Be it wig, tie, or other article of clothing, some fashion customs in court rose to a level of tradition that was considered mandatory.
Colored gowns, scepters, swords or verges, all play a part in the history of legal habiliments for lawyers and judges. Wigs, however, seem to draw the most curiosity, as our British counterparts continue to struggle with the whys and wherefores of these artificial head coverings.
Wigs came into fashion in the fifteenth century, probably when King Henry III of France wanted to conceal his premature baldness. Charles II, who was hanging out in France during Oliver Cromwell’s time, is generally credited, if that is the right word, with bringing the style with him when he returned to England at the restoration of the monarchy in 1660.
Wigs became a matter of style at the royal court, and then with all gentlemen and women, including lawyers. When barristers began wearing wigs to court, the practice was initially discouraged by judges. But, as more of these barristers became judges, the wigs became a judicial tradition. As time passed, rules were adopted governing wigs in court. Judges tended to full-bottom wigs and barristers to the shorter tie wig.
By the first part of the nineteenth century, wigs lost favor in general society and their use was limited to law, medicine and the clergy. Finally, even the clergy and physicians gave up wigs and they now are common only to the legal profession and Royal Coachmen.
Women were admitted to practice in England in 1922 and there followed a debate on whether that carried with it the privilege to wear a wig. Finally it was decided that female barristers should wear a wig that completely concealed the natural hair. Sikh barristers have been allowed to wear the Turban in place of the wig since the 1960s.
Barristers, attorneys and judges still wear wigs in many Commonwealth countries, though the practice comes under occasional question, and has been the subject of ridicule to some degree since the 17th century. A British jurist, Lord Donaldson, perhaps gave the best description of the current status of wigs: “There is no urgent need to go discarding something which has been out of date for at least a century.”
Wigs didn’t do well in the new United States of America. At least one early United States Supreme Court Justice, William Cushing, did wear a wig, but only for one session. His appearance apparently attracted too much attention. Boys followed him in the street
and a sailor exclaimed: “My eye, what a wig!” He returned to his lodging, left his wig, and neither he nor any other Supreme Court Justice has worn a professional wig since.
It has been traditional that lawyers as well as judges wear robes. Robing the legal profession is said to have directly descended from the Roman toga, and can be traced to the fourteenth-century tunica, a plain, ankle-length coat. The tunica went out of general use in favor of a shorter coat, but lawyers continued to use the long form and it became a distinction of the legal profession. The style and color of robes became highly regulated, depending on the rank of the lawyer, the nature of the case, the season and holidays.
There have been a number of stories circulating that judges in our country wear black robes identifying the death of Queen Anne or Queen Mary II as the cause for the legal profession to go into a period of mourning from which some of us apparently have never recovered. However, it seems that the mourning period began at the death of Charles II in 1685, at which time the lawyers wore a mourning gown, as was customary at the death of every monarch. However, this time the lawyers resisted abandoning the mourning gown, not because of devo-tion to Charles, but apparently because the mourning gown was much more comfortable and less expensive.
I can find no connection between the lawyers of England taking on mourning dress and the judges of our country. The story of black robes seems to be more of a political story.
When the Supreme Court, apparently with Justice Cushing included, opened its first session in 1790, the justices were decked out in black and red robes. Colors associated with the rule of the previous colonial masters were not favored. Some aversion to redcoats comes to mind, and may have been a problem for the judges. Jefferson and the Republican Party opposed both wigs and robes for judges and black was identified as the color of the Jeffersonian party.
The U.S. Supreme Court has been robed in black since 1802, as are most state court judges. There are exceptions, however, including a recent report of a Michigan state court judge using a red robe in the absence of a rule to the contrary. In 1998, our neighbors in Idaho recognized that there was no rule for them on the color of robes and so one of their Supreme Court Justices began to wear a “Royal Blue” robe, leading the court to be called the “black and blue” court. Jefferson would turn over in his grave if he knew a judge in our country was wearing “Royal” Blue.
And to top it off, the highest court in Maryland, the Court of Appeals, managed to retain a very colorful appearance:
Shakespeare, in King Lear, observed
Through tatter’d clothes
small vices do appear;
Robes and furr’d gowns hide all.
Do not fear for our sovereign State of Washington, however, as RCW 2.04.110 requires that justices of the supreme court and judges of the court of appeals and superior court “...appear in and wear gowns made of black silk....” I don’t know what happened to the silk, but the color abides.
Barbara Haggerty, who retired as bailiff for Judge James Mifflin, was a clerk in the Superior Court clerk’s office in the early 1940s. She reported that before that time all in-court employees, including the clerks, were men. During the war that became a problem and so in 1943 she and Mary Nixon (wife of lawyer Clay Nixon) became the first female in-court clerks. They had to wear special black smocks, made specifically for them for this purpose, so that they would blend in with the court and no one would notice them. I have also heard that they could not wear open-toed shoes, but I have been unable to verify it.
Claudia Olney, retired court operations director, says that a number of years ago she was contacted by Readers Digest to confirm a story about Judge Henry Clay Agnew, who was known for his conservative courtroom. One afternoon a local newspaper reporter was covering a trial in Judge Agnew’s court. The reporter was wearing a bright-red, Scotch-plaid jacket. All eyes, especially the judge’s, converged on the press table, where the reporter stuck out like a peacock in a chicken coop. Midway through the afternoon session, Judge Agnew called the reporter to the bench. In a whisper that carried the length and breadth of the courtroom, he suggested that the next time the reporter came to court he should wear something less loud. Being a little flip, the reporter said, “But, Your Honor, I thought Justice was blind.” “She is, young man,” Judge Agnew replied, “but not by any stretch of the imagination is she deaf.”
There is a story from India about a Brahman who, like many Brahmans, lived by begging and was successful in doing so. One day he decided to go to the marketplace dressed only in a small loincloth such as the poorest laborers wear and see how people treated him. So he set out, but on the road and in the marketplace and in the village no one salaamed to him or made way for him, and when he begged no one gave him alms.
He soon tired of this and returned to his home and putting on his best clothing returned to the marketplace. This time everyone who met him on the road salaamed low to him and made way for him, and every shopkeeper to whom he went gave him alms; and the people in the village who had refused before gladly made offerings to him.
The Brahman went home smiling to himself and took off his clothes and put them in a heap and prostrated himself before them three or four times, saying each time, “O source of wealth! O source of wealth! It is clothes that are honored in this world and nothing else.”
Richard Eadie is the Presiding Judge of the King County Superior Court.
