Stephen Vasciannie | Robes are us?

About two years ago, a distinguished judge in the Eastern Caribbean made very critical remarks about some aspects of legal education in the region. Some of the remarks were, in my view, quite accurate, while some may not have fully taken into account the impact of information technology (and now its artificial intelligence outriders) on the pace and scope of legal research today.

This thought came back to me recently when I decided to do some reading about judicial robes. In the back of my mind, I recalled fuzzily that former US Supreme Court Chief Justice William Rehnquist had asserted his individuality in court by adding four gold stripes to the sleeves of his judicial robe, in an effort to recreate the appearance of the Lord Chancellor in the Gilbert and Sullivan opera, Iolanthe.

EASY GOOGLE

I spent an unsuccessful but entertaining two hours or so thumbing through Jeffrey Toobin’s The Nine: Inside the Secret World of the Supreme Court, Edward Lazarus’ Closed Chambers, Robert Bork’s Coercing Virtue: The Worldwide Rule of Judges, and an introductory text to the Supreme Court by Rehnquist himself, The Supreme Court: How It Is, How It Was , to no avail.

Then Mr Google came along. In one minute, he obliged, with Charlie AI trying to intervene as well. Chief Justice Rehnquist did, in fact, wear the fancy judicial garb, but his successor as chief, John Roberts, did not. Neither did Rehnquist’s successor as a justice, the challenging Antonin Scalia.

So, as a general matter, who should determine appropriate clothing in particular social contexts? At one university, for example, students must take their examinations in ‘sub-fusc’, that is, black gown, dark suit, black tie or ribbon, white shirt or blouse, and black shoes. I cannot recall if there were specific gender specifications in respect of cross-dressing for examinations. Presumably, though, my thoughtful grandma would have considered this a non-question, impatient of debate even in the liberal atmosphere of Balliol College, Oxford, where some British prime ministers and senior judges first pursued legal and political studies.

DRESS CODE

A dress code, in the end, is a cultural matter, and it may be best for us to know, in advance, who the final arbiter of the code happens to be. This is not to err on the side of conservatism; it is merely to ensure fairness for all. Beyond the matter of dress, if, say, the principal of a school is acting within the rules, she may, by my lights, encourage and urge her graduands to march in procession to Nkosi Sikelel iAfrika ( God Bless Africa) at graduation, just as she may have them springing along to Vivaldi’s Four Seasons. Naturally, this approach may need to be tested against group opinion and ideo-religious considerations, but the general argument for fairness, and for clarity as to the arbiter, remains in place.

FREE SPEECH

Then there is free speech. In days of old, students were sometimes taken to Premier Cinema for cultural exposure. One of the big favourites at Premier in the 1960s was, yes, My Fair Lady, starring Rex Harrison as Professor Henry Higgins, and Audrey Hepburn as Eliza Doolittle, the flower seller. The slightly befuddled professor and Eliza were getting married in the morning, as 500 Jamaican schoolchildren sang along with them, some laughing, some crying, and a few achieving both emotions simultaneously!

My Fair Lady has not worn too well with the passage of time but, back then, we were prompted to love it, just ask King Yellowman. My Fair Lady was based on George Bernard Shaw’s classic play Pygmalion, and it held up a critical mirror to class and gender relations in British society in its day. Shaw enjoyed his freedom of speech.

But here’s a twist. When Shaw died, he had a hand in drafting his will, as did certain lawyers. In a case that arose under the will, Re Shaw (1957), the judge, Harman J, then turned his own free speech rights on the departed Shaw. He struck down parts of Shaw’s will with relish and attributed the death of Shaw’s testamentary plan to the playwright’s ‘incurable itch to write’. The judge, no doubt himself the epitome of fairness, seemed to shout: ‘Shaw, you are free to speak; but I do not have to hear you.’

FIRST AND EQUAL?

Finally, it may be noted that, in recent years, under the express encouragement of Lord Neuberger, the British Supreme Court has sought to reduce the number of separate opinions by individual judges. This is to promote clarity in the identification of the basis for the court’s decision. This is in contrast to the US Supreme Court, in which judges exercise their free speech and judicial independence in full. Neither approach may, without more, undermine democratic principles.

Democratic principles also require the leader to take part in a deliberative process with her or his soldiers, with each side urging the other along within the limits of healthy discourse. And then, it is one person, one vote, even if we accept the nebulous formulation, primus inter pares, or first among equals.

Stephen Vasciannie is a retired UWI professor. Send feedback to columns@gleanerjm.com