(Juris)Prudence

Ever wonder why judges wear robes? It's theater, really. Literally, theater.

It works like this: the legislature makes the rules; the executive enforces the rules; the judiciary decides the disputes. The courts, then, are decision-makers of a very specific sort: they decide disputes as theoretically neutral arbiters. That's it. That's all. That's what they're "for." And as a result, they're curiously toothless. That is, they lack an enforcement arm of their own. Others are supposed to comply with their decisions, and they do have the power to order the executive branch to lock people up who don't go along with the court's orders ("contempt of court").

But what if the executive refuses?

A court has no army. It controls no funding. Its power comes from the regard with which its decisions are held, the willingness of more "political" branches of government to comply with its decisions. Basically, an executive with sufficiently strong backing from society could tell the court to go hang, and the court would be left huffing and making angry faces. The only solid measure of the court's power, then, is the respect with which it is viewed, the credit given its decision-making-- its "legitimacy" as the final arbiter. Refusing to carry out a final decision by the judiciary has to be socially and politically unthinkable: if the court gets no respect, it has no power.

As a result, there's an element of theatrics to the daily affairs of any court, from "all rise" to the dress code of judges, court personnel, and lawyers, to the layout of the courtroom. In general, the higher the court, the more seriously it takes the theater. Local, state-level trial courts are less formal than the state courts of appeals, which are less formal than the state supreme courts.

Our own Washington State Supreme Court is housed in a building literally called the "Temple of Justice." The structure pretty much lives up to its name.

Federal courts generally take the game more seriously than state ones, I presume because the federal government is something more psychologically distant and impersonal, less a part of most people's day to day experience, and considered "superior" to the state courts. An example of this is the deeply formalized "well of the court," an expanse of only-too-inviting carpet between counsel's tables, the judge, the jury, and the witness, through which no one may walk while court is in session, no matter how convenient it might be to do so.

If all of this sounds silly or unnecessary (or like a bit of a fraud), consider another "legitimacy-dependent" institution: the dollar. Money doesn't have to work very hard for us to think of it as valuable, maybe, but it's fundamentally an abstraction of wealth given value only by our agreement to treat it as such. While a dollar bill doesn't wear robes, it does wear George Washington on its front and the Great Seal on its back. Of course, if we dispelled that particular illusion and started turning our nose at any system of exchange more abstracted than barter, bad things (well, worse things) would happen to our economy.

The power of the court is no less illusory, but also no less important. It plays games of legitimacy in order to maintain its power, but maintains its power in order to maintain its function; without it, things would be much worse.