Mimesis Law
19 May 2019

Judicial Kapelophiles

Jan. 6, 2015 (Mimesis Law) — Intellectually, most people want to be egalitarian. In practice, that is another thing. Thus, I had mixed emotions about Noah Feldman’s, Who Needs Black Robes? Not Judges, Bloomberg View (December 29, 2015).

Scalia hat

Justice Scalia wearing the hat given to him by the Sir Thomas Moore Society. “We gave him the hat after his keynote speech and he was ‘over the moon’. He immediately tried on the hat and suggested he would wear the hat in academic settings. Little did we know, he would show up at the 57th Inauguration of the United States President wearing the hat we had designed for him.”

Feldman wrote that there is really no reason for judges to wear black robes. Everyone knows judges are just people, so suggests the author. Therefore, no “uniform” is required.

After much reflection (I could say after much prayer, but I don’t ever make that a practice), I concluded that Feldman is just another brilliant Harvard law professor who is flat wrong. Judges, especially federal judges need to be feared. After all, particularly in the criminal context, we do awful things to real people.

If we dressed like real people the great unwashed would see us as just regular old mean and nasty bureaucrats and that, of course, is true. But, and this is the important qualification, we are majestic in our meanness and nastiness. We solemnly represent the wisdom of the state and the judicial priesthood. So, robes, and especially foreboding black ones, are a requirement.

Period. End of discussion. Well, not quite.

In fact, I think our regalia are not sufficiently grand. What about hats. If clothes make the man (woman), then hats serve as an exclamation mark. As shown above, Justice Scalia wears a cool hat and therefore won’t be confused as just an ordinary crossdresser in a black dress.

In Britain, the last judge to pronounce a death sentence (the UK no longer imposes the death penalty) wore a hat over his wig. Although the hat was small, no larger than a black hanky, it conveyed just the right note of solemnity. After all, hanging focuses the mind and a black hat sharpens the point deliciously so.

hanging judge

Think about how impressive it would be to impose the death sentence using these words while peering over your eye classes and wearing the ever so somber black hat:

Prisoner at the Bar, you have been convicted of the crime of willful murder. The sentence of this Court is that you be taken from this place to a lawful prison, and thence to a place of execution where you shall be hanged by the neck until you are dead. And that your body be afterwards cut down and buried within the precincts of the prison in which you were last confined before execution. And may the Lord have mercy upon your soul. Remove the prisoner.

So, I have come to the conclusion that I need my own judicial head covering. See below. If you still harken for egalitarianism, it is acceptable to call me Comrade Kopf rather than Judge Kopf. Just be damn sure to stand up and bow slightly at the waist when you do.

comrade Kopf

*Ed. Note: No hats were harmed in the making of this post.

19 Comments on this post.

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  • Jill McMahon
    6 January 2016 at 1:38 pm - Reply

    Beautiful! Made my day.

    • Richard G. Kopf
      6 January 2016 at 6:32 pm - Reply

      I’m glad Jill. All the best.

      RGK

  • Jill McMahon
    6 January 2016 at 1:38 pm - Reply

    Where do you park the Red October?

    • Richard G. Kopf
      7 January 2016 at 7:53 am - Reply

      Jill,

      At my boat dock. Right next to my sailing ship.

      All the best.

      RGK

  • Greg Prickett
    6 January 2016 at 1:54 pm - Reply

    Sir, you need a Stetson.

    • Richard G. Kopf
      6 January 2016 at 6:30 pm - Reply

      Greg,

      I need a drink.

      All the best.

      RGK

  • Jeff Gamso
    6 January 2016 at 2:49 pm - Reply

    I’m just a lowly lawyer, so can I wear a Mud Hens cap in your court?

    • Richard G. Kopf
      6 January 2016 at 6:29 pm - Reply

      Jeff,

      I love the Mud Hens, and you know why.* So, of course, you can wear a Hens cap.

      All the best.

      RGK

      *For the unintiated, one of the reasons I love the Hens is because of Leon “Bull” Durham (born July 31, 1957). He is a former first baseman and outfielder in Major League Baseball who played for 10 seasons. He is the current hitting coach for the Triple-A Toledo Mud Hens. I am fond of the “Bull” even though his infamous error in the seventh inning in Game 5 of the 1984 NLCS, called the “Gatorade Glove Play,” still haunts the Cubs.

  • Marc R
    6 January 2016 at 7:26 pm - Reply

    Those are very soft and warm hats, but beware housecats will attack it thinking it’s a rabbit or some other smaller, docile and intruding animal.

    To Feldman’s point, obviously the clothing itself (a black robe) has no relation to the ability to judge. Similar to how all lawyers seem to use yellow legal pads, though a binder is far more practical from note taking through organization and addition/subtraction of documents. And clients are always impressed with all the federal reporters and treatises lining the bookshelves; when they should be more impressed their lawyer doesn’t pass on those needless charges and instead uses Google Scholar and the courthouse or law firm library.

    It’s about impressions and tradition. Court won’t “feel” as authentic to the public and that devalues its monopoly on determining the just outcome of a dispute (excluding arbitration). If it doesn’t feel or seem authentic then it won’t get the level of respect it deserves. So we ask judges to don the black robe because society recognizes that wearer to have executive branch authority to resolve important legal issues.

    So Noah is correct that the robe means nothing and denotes no special moral status, inherent to the robe. It could have been a hat or a wig or an ascot. The point is that it is a robe, it has been a robe, and the robe has meaning. It feels similar to the American flag. Inherently, it’s cloth and symbols. It has no effect on a nation’s sovereignty or government. But it’s about the tradition, the authenticity passed down over generations, and a country’s growing pains and shared sacrifice that gives it meaning. The black robes convey judicial respect to the wearer because it is institutional knowledge passed down daily in courtrooms throughout the country.

    Sorry if too tangential, but I also wanted to thank you for continuing to publicly write. It’s not just “correct” but it sets a justifiable and sensible path for future public officials to exercise their rights without affecting the performance of any duties. Thank you, your Honor.

    • Richard G. Kopf
      7 January 2016 at 7:50 am - Reply

      Marc R.,

      In a serious vein, I very much like tradition including the black robe. If nothing else, a nasty old stained black robe that smells like tobacco smoke is like Linus’ blanket. I cannot think of one without the other.

      All the best.

      RGK

  • MOK
    6 January 2016 at 10:35 pm - Reply

    Some might argue that the fellow in the White House would be better suited to wear your particular hat. 🙂

    Great to see you contributing again.

    • Richard G. Kopf
      8 January 2016 at 8:47 am - Reply

      Thanks MOK. Could to hear from you again!

      All the best.

      RGK

      • Richard G. Kopf
        8 January 2016 at 8:48 am - Reply

        Shit, I can’t type. I meant “Good” to hear from you again.

        The damn hat makes my head hot.

        All the best.

        RGK

  • CLS
    7 January 2016 at 8:19 am - Reply

    Your Honor:

    Your choice of judicial head covering seems sound for the winter months.
    What happens during the spring and summer? Do you have a favored alternative head covering for those seasons?

    Best,
    –CLS

    • Richard G. Kopf
      7 January 2016 at 1:05 pm - Reply

      CLS,

      I think a French Foreign Legion Beret would be appropriate. It would also scare the crap out of all the Islamic terrorists who threaten to take over my wife’s flower garden.

      All the best.

      RGK

  • Andy
    7 January 2016 at 3:11 pm - Reply

    Thank you for making me laugh. Love your hat.

    • Richard G. Kopf
      8 January 2016 at 8:46 am - Reply

      Andy,

      I herewith hold you in contempt of court for laughing. To Siberia you go!

      All the best.

      RGK

  • Wyle E. Coyote
    7 January 2016 at 6:09 pm - Reply

    комисса́р (Russian: translation “Commissar”) Kopf. The visual captures the opprobrious malignancy that is the modern Federal judge.

    Judge Kopf: “Judges, especially federal judges need to be feared. After all, particularly in the criminal context, we do awful things to real people.”

    Accurate, albeit inadvertently. Federal judges frequently act without any colorable warrant in law, issuing their own ukases under the fraudulent pretense of interpreting law. Federal judges ARE rightly feared in the way that Stalin, Pol Pot, and Idi Amin were justly feared: They ARE our rulers. We are not a nation governed by law, but by men. As others of your Order have observed so cryptically: “[D]o not celebrate the Constitution. It had nothing to do with it.” “This practice of constitutional revision by an unelected committee of nine, always accompanied (as it is today) by extravagant praise of liberty, robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

    Seriously, Judge K. The hat fits you! Hope you are feeling well. and that Nebraska beats Michigan and/or Ohio State next year.

    • Richard G. Kopf
      8 January 2016 at 8:37 am - Reply

      Dear Wyle E. Coyote,

      I once ran into a coyote late at night while driving home from law school. It was damn big coyote and it really messed up my car. So, trigger warning: stay off the highway between Lincoln, Nebraska and Wilbur, Nebraska or I will get you!

      I am feeling well except for our schedule next year. The Corn have little or no chance of beating Michigan or Ohio State unless we can access to a tactical nuke. Not likely.

      All the best.

      RGK