The Switch to Black: Revisiting Early Supreme Court Robes

Abstract

The Switch to Black: Revisiting Early Supreme Court Robes Matthew Hofstedt (bio) “Did they really wear robes like that?” is usually the first question a visitor to the Supreme Court Building asks when gazing upon the portrait of Chief Justice John Jay in an elaborate robe, black overflowing with red sleeves and stole trimmed with white. Jay strikes quite a contrast to the other portraits depicting justices in more solemn all-black robes now synonymous with American judges. The answer to the question is “Yes,” but the evidence surrounding Jay’s robe and the Supreme Court’s early attire is piecemeal and at times contradictory. Making things more confusing are the various historical accounts of the Court’s dress, based on little firsthand knowledge. These mostly undocumented accounts have led to a now generally accepted “fact” that the Court’s adoption of the all-black robes was due to the arrival of Chief Justice John Marshall in 1801. The story is that Marshall adopted the plain black robe on his first day with the Court to symbolize a new era. By adopting a more “republican” robe, Marshall was signaling a move away from the “aristocratic” colored robes worn by the other justices, which were seen by some as a symbol of the Federalist stance of the Court during the 1790s.1 The argument goes that the switch to black was one of the ways “the great Chief Justice” began to unify the Court, show judicial modesty, and form the Court’s new identity. Despite its appeal, there is little documentation to support this claim, and as will be explored, what evidence there is suggests the change occurred before Marshall became chief justice.2 What follows is an attempt to sort the facts from the fiction to come to a better understanding of the Court’s early judicial attire. Starting with the Jay robe and all of the myths surrounding it, this article will review the documentation that supports the use of the colorful robes by the early justices and add some new discoveries that perhaps narrow in on when the switch to black actually happened. While robes are admittedly a minor part of the Court’s history, they are one of the few pieces of material culture created specifically for the justices. [End Page 13] Click for larger view View full resolution Chief Justice Taft declined the Jay family’s offer to lend Chief Justice Jay’s robe to the Supreme Court. Instead, it was loaned to the Smithsonian until the family donated it to the National Museum of American History in 1973. The Court’s eventual move to the black robe would influence the visual representation of judges throughout the United States to the present day. The John Jay Robe The story of the Supreme Court’s early attire begins with the robe seen in perhaps the most widely known portrait of a Supreme Court justice: Gilbert Stuart’s Chief Justice John Jay.3 While many have wondered if this was indeed a judicial robe, the Jay Family understood it to be so. In August 1794, Sarah Jay wrote to her husband about Stuart’s progress on the portrait, noting that their nephew, likely Peter Jay Munro, was modeling the robe for the artist. “It is your very self,” she wrote, “it is an inimitable picture & I am all impatience to have it to myself.” Stuart had painted portraits of Jay earlier in London, but upon returning to New York, the Chief Justice only had time to sit for the head of this portrait. Stuart delivered the portrait to Mrs. Jay on November 15, 1794, and she immediately hung it in the family’s home.4 In 1808, Jay gave the portrait to his son, Peter A. Jay, who added this postscript in a letter to his father, “I have put up your portrait by Stuart which you were so kind to give me. It is an excellent likeness but the unfinished state of the Drapery makes it look ill & I wish to have that part completed by some other painter. For that purpose, I will be obliged to you, if you will be so good, as to bring...