Originally published in The Tennessean
After a football game played hard and fairly, the fans don't talk about the referees. They talk about the players and coaches. If they talk about referees, it means something went wrong. You don't talk about fair rulings that everybody knows were fair. You talk about rulings that were wrong or unfair. Trials are the same way.
The origin of why American judges wear black robes is not clear. Tradition says it came from England with the death of Queen Mary II in the 17th century. Apparently, British judges wore black robes to her funeral as a sign of respect and mourning. Since the mourning period lasted several years, the tradition caught on and stuck. It was brought over to the colonies and is still the sartorial standard for American judges.
Our Revolutionary leaders were divided on the robe tradition. John Adams wanted to retain the tradition, including wigs. Adams wanted to pass it on from the mother country. Thomas Jefferson did not want to have anything to do with England or British aristocracy; he figured that judges ought to wear suits like other lawyers. So, they compromised: black robes, no wigs.
Whether a judge wears a robe, wig, gown or suit, he or she must be reminded that they are representing a role much greater than a person. A judge takes an oath to be fair and impartial — to make decisions based on the evidence and the law properly enacted by the government. Judges do not stir up the controversy; they are reactive and wait for the dispute to come before them. Once it gets to court, the judge is bound to make a decision or instruct a jury to make a decision. The judge acts as a referee between the parties, ruling on evidence and procedure, guiding a jury to make a decision. In a bench trial with no jury, the judge determines the facts, applies the law and makes the decision. That's a lot of power and responsibility in a free society.
Parties decide that they cannot settle their problem. Although they created the problem, they cannot solve it. So, they ask the referee to decide the case. Just like in sports, the job of the judge is to make sure that the trial is played out fairly and ethically, regardless of the outcome.
I have been around lawyers, judges and courtrooms a good while. I have decided that judges should wear black-and-white striped robes. Maybe we should pass a constitutional amendment requiring stripes instead of solids.
Why? Because they are referees, not players. At least, they are not supposed to be. If they wore striped robes, they would be reminded that they are neutral and detached. They need to look that way.
If you're not talking about the judge but about the case and the litigants, that means it was tried fairly. If you're talking about the judge, then something went wrong.
Judges are referees. Wearing referee-striped robes will remind them of that. It will keep them focused on the ground game.
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