This essay, written as part of a symposium on popular culture and the civil justice system, examines the vast gap between legal and popular discourse on the judicial role. The legal academy generally regards as uncontroversial the proposition that judicial interpretation cannot be value-free. Yet in popular discourse, the ideal judge is someone who leaves all prior attitudes behind, simply applying the law that is “out there” and that admits to only one possible outcome. Judges perceived to deviate from this ideal are at risk of being branded “activist.” Members of the lay public - a majority of them, according to a recent survey - are upset about what they perceive to be activist judges. Perhaps more disheartening, pledging fealty to this unrealistic view of the judicial role remains de rigueur in the halls of Congress. This essay explores the connection between the depiction of the judicial role in popular media such as movies and television and the very similar caricature that still holds sway in more serious non-fiction venues, like Senate confirmation hearings and political campaigns. In popular venues, the judge is generally depicted either as a neutral or invisible placeholder for a fixed and determinate rule of law, or as biased, vulgar, or downright villainous. Drawing from legal theory, narrative theory, psychology, and prior work on popular culture and media studies, I argue that the simplistic notion of judges and judging that currently dominates the discourse is inherently conservative and hegemonic, and suggest that this state of affairs poses dangers for the rule of law and the evolution of the judicial system.
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