Among the complaints that have been leveled at lawyers for their stilted, insincere, affected, disingenuous, and overly emotional carryings-on in the courtroom, the bill of particulars itemized by commentators in the early modern period offers an especially helpful catalogue. The denunciations from this era cover most of the concerns that typically figure in diatribes against lawyers, while offering an intriguing qualification that anticipates more contemporary concerns. In addition to the usual accusations of lying, obfuscating, and stirring up their audiences, a number of commentators also argued that lawyers degraded public discourse and damaged civil society more broadly by leading people to trust their emotions and to abandon rational grounds of argumentation. These critics were writing at a time long before cross-examination became a regular feature of the trial in common-law jurisdictions, and their objections would take on a new and potentially even more dangerous form when a lawyer’s manipulative efforts could be used to badger a witness. Since at least the mid nineteenth century, the theatrics of cross-examination has played a central role in courtroom fiction and drama. Less attention, however, has been directed at judges who avail themselves of similar methods when seeking to amuse or sway the audience, in some instances by impersonating one of the figures in the dispute. Judges from the seventeenth and eighteenth centuries are sometimes cited for their inappropriate efforts at humour or their inability to control their temper, generally with the implication that these are problems of the past. Using a recent US Supreme Court case as an example, I suggest that judges have not abandoned these practices, even if their tactics are somewhat different.

In Law as Performance, Julie Stone Peters helpfully synthesizes a number of attacks on lawyers from the early modern period.Footnote ¹ In what follows, I will first take up some of the questions she raises about commentators from that era, in order to understand what was distinctive about these complaints concerning lawyers’ histrionics, as against the many other complaints about the corrupt and deceptive practices of lawyers and judges. Next I turn to the use of cross-examination as it began to develop near the end of the eighteenth century and grew in the course of the nineteenth century. This change in trial procedure allowed lawyers to think of themselves as actors in a way that differs from Peters’s main examples, but that persists in contemporary forensic practice. Finally, I ask how Peters’s analysis might help make sense of the less obviously dramatic, but nevertheless theatrical behavior, of judges, particularly when they encourage the audience to laugh in response to their questions, posed in the guise of someone who might be confused or surprised by the provisions at stake. This last section brings out an aspect of judicial behavior that is not commonly associated with lawyers’ theatrics. Judicial humor takes many forms, which do not necessarily involve something like a dramatic persona. I hope to show, however, that in some instances, judges merge roles – the role of an impartial interlocutor attending to policy questions, and that of an individual to whom the law might apply – in a way that seems highly theatrical.

If we may take it for granted that every courtroom argument depends on numerous decisions, some more conscious than others, about how to use language and gesture to support an argument, the dynamic and interactive aspect of the process nevertheless bears emphasis. I take “forensic performance” to include the array of dramaturgical techniques that inform Erving Goffman’s account of “the presentation of self in everyday life,”Footnote ² extending not only to ways of affirming one’s own position but also to ways of portraying the various figures or propositions that might be in contention, in a legal dispute. As exhibited in the courtroom, these practices include the use of speech, gesture, and ritual to convey arguments, embody or criticize legal authority, and impersonate a party, witness, or any other participant in an actual or imagined scenario that animates some aspect of the dispute. The audience for these performances may be directed at all or part of the courtroom audience, and also at imagined observers in the larger public. Finally, these performances may be associated with anyone speaking in the courtroom, but are likeliest to be staged by a repeat player familiar with the norms and dynamics that characterize the forensic sphere.

A frequently repeated complaint about legal performances in any register branded as indecorous is that they appeal to the emotions rather than the intellect. The point is made most concisely by the example of the histrions – Greek actors banned in Rome for more than a century not only as foreign thespians, but more importantly also as erotic and physical threats to propriety. The histrions were famous for walking though the audience half-naked and provoking inappropriate excitement. The provision in the Digest that records the ban (infamia) on the histrions is immediately followed by a ban on citizens maintaining brothels.Footnote ³ Complaints about unacceptable courtroom histrionics may not reflect any awareness of the term’s origins, but this compacted set of associations nevertheless shows how objections to improper performances may capture a range of anxieties about their dangerous effects.

7.1 Theatre of Injustice

In chapter 5 of Law as Performance, Peters discusses a litany of complaints dating from the late fifteenth century through the seventeenth century, amounting to what she calls an “anti-rhetorical tradition.”Footnote ⁴ Some of these diatribes simply add a theatrical coating while repeating well-worn themes that we encounter in other denunciations of the legal profession, asserting that lawyers gravitate naturally toward the weaker cause, which they strive to dignify as the superior one; that they bribe witnesses and judges; that their flowery rhetoric and energetic imagination help them lie and deceive for their clients.Footnote ⁵ However, some of these attacks address the dynamics of forensic performance in ways that pick out more specifically why it is that role-acting in the courtroom can produce distinctive effects that reach beyond the courtroom, and these examples deserve further attention.

Johannes Ferrarius, writing around the middle of the sixteenth century, says that lawyers can seduce “the iye and eare” and “move any manne [to] evill,” or “stirr naughtye persones to unquietnesse.”Footnote ⁶ He adds that “where the number of Lawyers dooe swarme and flocke together, … every courte, every private mannes house [is] in a great sturre and tumult by [the] dissensious sutes whiche those craftye marchantes” provoke.Footnote ⁷ Peters observes that Ferrarius’s criticisms “reflec[t] the broader associations between lawyers and theatre that became recurrent figures in humanist texts.”Footnote ⁸ Giovanni Pico della Mirandola worries that lawyers have an extraordinary ability to “deceive, circumvent, [and] practice sleight-of-hand tricks,” amounting to a talent for “transform[ing] things … as if by … magical force, … so that they assume whatever face and dress you wish.” The result is “sheer lying, sheer imposture, sheer magic tricks, [which], like so many masks and simulacra, … dupes the minds of [the] auditors.”Footnote ⁹ Juan Luis Vives associates lawyers’ “refined and polished style of speaking” with a feminized tradition of oratory, which has “laid aside its manly garb and put on a woman’s attire.” This style, “better suited to swaying the minds of the judge and all the bystanders,” is “better suited to the stage” than to the courtroom, and it encourages the audience to behave “as if they were being entertained in the theatre.”Footnote ¹⁰

Erasmus, in his Ciceronianus (1528), says that juries “expec[t] and even deman[d] of the advocates an embellished style” that is “designed to misrepresent the truth, … to infiltrate the hearer’s mind by deception, and finally to carry his intelligence by storm through rousing his emotions.”Footnote ¹¹ Heinrich Cornelius Agrippa, in On the Vanity of Arts and Sciences (1531), writes that the lawyer’s art of pleading is “an ancient, but most deceitful Calling, onely set out with the gaudy Trimming of Perswasion, which is nothing else, but to know how [to] over-rule the Judge, and to turn him and winde him at pleasure.”Footnote ¹² Agrippa envisions a lawyer twisting and wriggling in a performance that invites the audience to imagine themselves in the same role: These “Mimmick[s],” he writes, may be seen “looking with their Eyes like men distracted, throwing their Arms about, dancing with their Feet, lasciviously shaking their Loyns, with a thousand sundry sorts of wreathings, wrestings, turnings this way and that way of the whole Body.”Footnote ¹³ This description almost makes the advocate sound like the faith healers of a later era, calling on the audience to experience the same sensations he is modeling.

John Jewel pursues the same theme in an “Oration against Rhetoric” (ca. 1548), which will be particularly salient for my later comments on cross-examination. Jewel imagines a wildly histrionic lawyer whose gesticulations are meant to prompt the observers to respond in kind, imaginatively if not physically: “Why that thrashing about of the body? Why that sudden contraction? that waving of arms? that slapping of the thigh? that stamp of the foot? Why is it they speak not with the mouth, not with the tongue, not with the jaws, but with the hand, fingers, joints, arms, face, and the whole body?” The appeal to emotion, Jewel writes, makes a mockery of the usual forms of legal authority, rooted in evidence and expertise: “What good are courts, laws, oaths, rules, … judges, and magistrates? Why would we appeal to the authority of witnesses, of records, of speakers, of writers, of examinations, of experts in law?”Footnote ¹⁴ There are trustworthy sources of information, and reliable figures who can explain and interpret them, but these sources are sidelined in favor of the advocate’s deceitful rhetorical stratagems. Francesco Patrizi’s On Rhetoric (1562) also imagines a crowd of auditors reacting passionately to the advocate’s oratory. He likens the observers to “a wild beast with many heads that are always barking and that … deafen its spirit, dazing it so that it cannot see the light or discern the truth … And the master orator always has the power to awaken that beast and to make it bark from whichever … of its heads he pleases.”Footnote ¹⁵ There are a number of other diatribes to similar effect, confirming the general sense that lawyers stir up the audience’s emotions, play on the jurors’ prejudices, and do their best to hoodwink the judge. These denunciations, attacking malevolent actors for provoking wild and impassioned reactions from uncontrollable audiences, imagine affect as a negative response, as if it arises only in a dangerous form, to be contrasted against an implicitly calm and emotionless state that would appear to be the proper register for legal argument. Yet as Jesús Velasco argues in his contribution to this volume, all dialogue and all performance are gauged to generating affect, creating atmospheres of feeling that bring the written word alive. It is others’ use of rhetoric that deserves to be castigated.

How do these complaints differ from familiar indictments contending that lawyers lie, twist the law to their clients’ purposes, create ambiguity where none exists, and generally act out of self-interest? It is, after all, common to see lawyers charged with suborning witnesses, raising spurious allegations, and exaggerating their client’s plight while diminishing the adversary’s. In some ways the differences are not very great. It seems outrageous that lawyers take facts and evidence and justice, which should be clear, and produce results that are manipulated and contrived, and treat that process as a matter of course. By the same token, that which everyone else considers natural is made through legal processes to appear contrived, and the lawyers take what should be self-evident and claim that it depends on particular circumstances and conditions that make the answer obscure and controversial.

However, most complaints along these lines are limited to the sphere of the courtroom. They apply only to the facts of the case, or to interpretive disputes that arise within the litigation. Lawyers exaggerate their clients’ injuries while minimizing those of the other party, or they try to make simple and straightforward questions appear murky and complicated. A lawyer in William Wycherley’s The Plain Dealer (1676) typifies these criticisms when he boasts of his ability to “extenuate or amplifie Matter of Fact; baffle Truth with Impudence; [and] answer Exceptions with Questions, though never so impertinent.”Footnote ¹⁶ English Restoration satire is full of similar instances, in which lawyers aid clients in bringing spurious claims and putting on false evidence.Footnote ¹⁷ According to these accusations, the harmful effects of lawyers’ behavior are felt within the frame of a particular case, and so, by implication, they are contained to that extent.

Just as the harm is limited in this way, the kind of deception that lawyers practice also has a limited reach in these accounts. The judge may be deceived, and perhaps even the jury, but the ridiculous and offensive circumlocutions of legal language and the contrivances of the conniving counsel are seemingly apparent for everyone else to see. The deception is easily detected. The person who exposes these practices does not claim that any deep or acute insight is required to perceive the problem; a simple description of the lawyers’ antics makes the lie patently evident to all. The lawyers are not simply indifferent to the truth – they want to be believed, and they rely on feigned evidence and false witnesses rather than behaving as if the source were irrelevant.

However, as Peters points out, a crucial part of the complaint about lawyers who act out roles and imitate actions and passions involves their efforts to appeal not only to the jury, but also to the other spectators in the courtroom. When this larger group can be provoked and incited by the lawyers’ efforts, the resulting dynamic introduces a problem of a different order. The result is to enlist the audience, in real time, as active spectators to a performance in which they are also contributors to some extent. This immersive and interactive engagement transforms the conditions of the courtroom, yielding what Velasco characterizes as a mood or atmosphere, an affective space governed by the dialogue between the lawyers and the audience.Footnote ¹⁸ The lawyer seeks to raise the spectators’ passions so that they participate, emotionally and bodily, in the drama being staged. They become involved in a way that goes far beyond temporary approval of the legal result. They are not simply laughing or hissing at some statement; the performance shapes their beliefs and produces a shared, communal sense of involvement, in real time, as the audience members affirm and encourage each other’s reactions. Their passionate involvement creates risks for the community more broadly, in a way that a lawyer’s factual falsehoods or clever interpretive arguments would not.

This participatory role explains why people can be “stirr[ed] … to unquietnesse,” as Ferrarius put it, and why they have ever-increasing expectations of rhetorical hyperbole. Their demand for melodrama, or whatever theatrical mode appeals to their degraded appetites, does not merely indicate a taste that the lawyers are catering to, but a taste that the lawyers are cultivating and degrading even further.

Lawyers may help people get away with murder through specious arguments, and that can do terrible harm, but lawyers who actively engage members of the community, and sway their views by eliciting their emotional responses in court, can degrade public discourse and destroy communal life in an even more thoroughgoing way. Theatrical performances are communal, participatory, and dynamic, and this is what separates them from the other harms that lawyers inflict.

This point about the dynamic and participatory nature of the enterprise may seem obvious but it bears emphasizing. When scholars talk about law in relation to performance, or theatre, or magic, they usually dwell on questions about the efficacy of the performance (à la J. L. Austin), or the contrived nature of the theatrical stage effects, or the advocates’ ability to distract and surprise when they draw on their bag of tricks.Footnote ¹⁹ Accordingly, the analysis tends to focus on the performers and perhaps their control over the audience, as if the observers could be treated as a by-product of the lawyers’ efforts. To be sure, there has been a considerable amount of research on juries, and even the wider audience, by scholars of a sociological or anthropological bent, and some work in media studies has sought to explore these issues. But it remains comparatively unusual for research in this vein to see the audience as a significant factor in the analysis.

This gap in contemporary scholarship on the social and cultural production of legal doctrines and norms suggests an observation about the use of systems analysis as a means of understanding legal change. A systems analysis approach would look to statutes, rulings, norms, governments, trials, courthouses, practices of storage and retrieval, lawyers, juries, economies, the media, and other elements to see how iterative dynamic changes resonate through the system.Footnote ²⁰ A significant amount has been written on the decline of the trial and the rise of settlement and plea bargaining as means of dispute resolution in Britain and America,Footnote ²¹ but scholars have not drawn out an implication that follows from the point that Peters makes – namely that as opportunities decline for theatrical performance in the courtroom, and as the nature of that performance changes, that is bound to have systemic effects on other parts of the system and the results that the system produces. The point is not only that settlement and plea bargaining yield results that would not necessarily obtain at trial, nor that evidence may come out at trial that no one sees, when the parties settle – although those are also important considerations.Footnote ²² Rather, the point is that the participatory nature of the trial also has significant effects on the outcome and the community in which the trial occurs, and therefore on the system as a whole – effects that are altered in ways that tend to go overlooked as trials become the exception. In sum, Peters’s attention to the lawyers’ audience brings out important dimensions that conventional treatments of legal performance have tended to overlook.

7.2 Cross-Examining Mr. Cox

I turn now to a later historical context, outside the boundaries of Peters’s discussion, involving the rise of cross-examination in trials in Britain near the end of the eighteenth century. For reasons that need not concern us here, cross-examination did not play a significant role in trials at common law before this period. The later eighteenth century marks the first period in which criminal defense lawyers engaged in cross-examination to any significant extent, and the first period in which lawyers started to write manuals about how to conduct a cross-examination.Footnote ²³ This practice certainly enhanced the drama and overall entertainment value of a trial, and some lawyers became famous for their talent in this area.Footnote ²⁴ What seems notable about many of the examples from this era is that sarcasm and ridicule appear to have been very effective methods, even when used in ways that did nothing to help reveal the truth. A notorious and frequently cited example involves Thomas Erskine, one of the first lawyers to make a name for himself by doing this kind of work. Baron Campbell claimed, in his autobiography, to have been present at a trial for payment of a tailor’s bill, where Erskine questioned a witness who testified that a coat had been poorly made, with one sleeve longer than the other. Erskine went over the point carefully, asking the witness, “You will swear that one of the sleeves was longer than the other?” When the witness affirmed this, Erskine asked, “Now, sir, will you swear that one of them was not shorter than the other?” The confused witness denied the point, and, according to Campbell, Erskine won the case for his client.Footnote ²⁵

This story would seem to confirm all the fears of the antirhetorical and the antitheatrical critics. The implication is that people attend trials for entertainment, and are delighted to see a quick-witted lawyer tie the witness up in knots and trick him into producing an answer the lawyer wants to hear, so that he becomes a kind of puppet in the lawyer’s ministrations. The result is not a statement that anyone could seriously regard as helping to clarify the issues or expose the truth. It doesn’t show the witness to be a liar, but the pleasure of seeing him become a tool in the lawyer’s hands is so satisfying that it is treated as a successful performance and the lawyer is rewarded with a victory. If juries are actually making decisions on this basis, then it seems right to worry that cross-examination has simply become one more device that lawyers are using to entertain, amuse, and animate the audience, and that this device belongs to the same dynamic structure that critics were worrying about centuries earlier. One can easily imagine the critics of the early modern period now adding that cross-examination has become another feature of the lawyers’ scripted performances, which affects not only the verdict but also the community’s expectations. To be sure, there is good reason to think that exposing laypersons to scenes of cross-examination changed their ideas about truth in almost the opposite direction, leading people to demand a kind of consistency and legal-rational “common sense” that few people display in their ordinary affairs. However, if one were of a mind to see this practice as an element in the legal theatre of the era, it would not be hard to find examples to justify that concern.

Although guides on cross-examination started to appear around the turn of the nineteenth century, it would take many decades before a comprehensive and systematic discussion appeared. Guides to legal rhetoric had long recommended that lawyers should avoid affectation, strive for dignity, and modulate their tone and language harmoniously.Footnote ²⁶ Gilbert Austin’s Chironomia; or, A Treatise on Rhetorical Delivery (1806), published around the time that cross-examination was becoming a more prominent part of the trial, was not focused solely on forensic rhetoric, but if offers advice along the lines of its precursors, warning that extravagance, vehemence, and exaggerated gesticulations all serve to degrade the speaker and the audience.Footnote ²⁷ Austin’s treatment is unusually explicit about the theatrical model that applies to all public speakers and their need to engage with the audience, and to that extent his discussion anticipates some of the suggestions that later commentators would offer.

The first extensive treatment with specific recommendations for cross-examining witnesses was Edward William Cox’s The Advocate: His Training, Practice, Rights and Duties. This work first appeared serially in the Law Times in the early 1830s and was published as a two-volume book in 1852.Footnote ²⁸ In discussing the right approach to cross-examination, Cox writes,

It will be evident that Cox’s ideas about how to handle a witness are very different from the illustration provided by the Erskine anecdote, and they involve a very different understanding of the lawyer’s role as an actor. Here there is no question of putting on an act in order to get a rise out of the witness, or to stir the audience; rather, Cox offers a lesson about controlling one’s reactions to keep others from anticipating the goal. His treatment points to different implications for the dynamic mode of audience interaction – it would be a mistake to conclude that he is simply trying to remove that element altogether, but his suggestion that lawyers should proceed in a gentle and mild way points to a diminished role for the kind of interaction that concerned the early modern critics of theatrical lawyering.

But there is nevertheless at least one other theatrical angle to the dynamic that Cox envisions, which turns on the result of this kind and gentle procedure: “By slow approaches, bring him back to the main circumstances, by the investigation of which it is that you purpose to show the falsity of the story.” The great evidence scholar John Henry Wigmore wrote that cross-examination is efficacious because when “the cross-examined witness supplies his own refutation” in testimony that “immediately succeeds in time the direct examination,” the result produces what he calls a “dramatic contrast.”Footnote ³⁰ Wigmore explains that the difference between refutation in this fashion, as compared to refutation by means of another witness, “is the difference between slow-burning sulphurous gunpowder and quick-flashing dynamite.” Wigmore has at this point switched metaphors and abandoned the theatrical language, but the language of dynamite hints at a plotter hoist with his own petard, itself a theatrical image that speaks to the pleasure the audience experiences when narrative causation turns on itself to bring off a satisfying conclusion. Cox’s treatment and Wigmore’s observations show how cross-examination can facilitate qualitatively different interactions with the audience in the courtroom, which do not closely match the ones that worried the critics in the early modern period, but which nevertheless depend on some of the ideas about theatricality that Peters explores.

7.3 Special Guest Star, John Roberts

Peters’s treatment of histrionic lawyers hints at yet another line of research, involving judges as actors. Judges cannot engage in the same theatrics as lawyers, but that does not foreclose any chance of donning a role during a hearing. There has been a considerable amount of research on the effects of laughter during hearings before the US Supreme Court, but although this work has looked into matters such as what kinds of parties tend to bear the brunt of judicial humor, and whether male or female judges are likelier to attempt this approach and are likelier to be seen as crowd-pleasers, scholars have largely overlooked a prior question – namely how judges go about eliciting laughter from the audience in the first place.Footnote ³¹ By this I do not mean to ask whether certain areas (e.g., administrative law or criminal law) offer more opportunities for guffaws, or whether judicial humor necessarily takes a form that treats a particular person as its target, although both questions are relevant. Rather, I mean to ask how judges signal that they have turned momentarily to stand-up comedy, and more specifically what kinds of personae they assume to show the audience that it has permission to laugh.

A recently argued case, Colorado v. Counterman,Footnote ³² offers a useful illustration of the dynamics of judicial humor and the laughter it strives to elicit. The case posed the question of whether it is constitutionally permissible to use an objective standard for imposing criminal liability on someone for stalking and uttering threats, or whether some degree of subjective mens rea is required under the First Amendment because the speech is sufficiently expressive as to require constitutional protection. Billy Ray Counterman had been sentenced to four and a half years in prison for stalking Coles Whalen, a singer-songwriter, and for using Facebook to send hundreds of messages to her. The messages ranged from the mundane (as when he offered to bring tomatoes from his garden) to the aggressive (as when he wrote “Die. Don’t need you,” and “I’m currently unsupervised. I know, it freaks me out too.”).Footnote ³³ His conviction was based on a Colorado statute that used an objective standard to determine whether his messages were threatening, but he contended that he could not be convicted unless he had some degree of subjective awareness – at least to the point of recklessness – that his messages might be perceived as threats.

In the course of two years Counterman had sent Whalen more than a thousand messages. At oral argument, Chief Justice John Roberts picked out a few that, in his view, did not appear threatening. To make this point, he read these examples aloud and asked Philip Weiser, the attorney general for the state of Colorado, to explain why someone who sent them must be perceived as uttering a threat. In reading these messages, Roberts courted the laughter of his audience, presenting himself as a confused and befuddled “regular guy” who could not understand why his words could be construed as anything but innocuous.Footnote ³⁴ He dwelt, for instance, on a message that said, “Staying in cyber life is going to kill you. Come out for coffee. You have my number.” After quoting this example a second time, Roberts added, “I can’t promise I haven’t said that,” and when this remark brought the laughter he was seeking, he read the message a third time. Roberts claimed to find it incomprehensible that anyone could attach a threatening implication to the message, even if it had come amidst hundreds of others that appeared more menacing: “I think that might sound solicitous of the person’s development. I mean, if we’re talking just about what the statements are, how is that – what tone would you use in saying that that would make it threatening?” When Weiser attempted to explain how, in the context of Counterman’s other messages, this one also amounted to a threat, Roberts could not resist another attempt: “Okay. Say this in a threatening way. One of the things he was convicted of, it was an image of liquor bottles, and there was a caption, ‘A guy’s version of edible arrangements.’” Once again, this clever riposte brought down the house. One may speculate that Roberts’ pose, informed by an awareness of those who would later hear the recording, was also designed to convey a certain self-image to the like-minded people in that audience.

It would be idle to imagine any of these messages being spoken “in a threatening way,” since they were sent by text. The invitation to adopt a threatening tone might almost seem like a disavowal of Roberts’s own highly theatrical conduct at this point in the hearing. It is more than a little paradoxical for him to adopt the stance of an average dude, doing his best to comprehend a woman’s point of view but forced to throw up his hands in exasperation because he simply cannot understand what she is going on about. First and most obviously, if Roberts were right to interpret the message as “solicitous of the person’s development,” there would be nothing wrong with using the objective standard he claims to find so worrisome, since it would yield the innocuous meaning he has just produced. Second, and conversely, the figure he has been purporting to impersonate would be most unlikely to explain himself in Roberts’s words. That average dude does not use words like “solicitous,” and if he were concerned about someone’s “development” he would just say so. By attributing to Counterman a “solicitous” attitude toward Whalen’s “development,” Roberts inadvertently highlights the contrived nature of the role he is enacting. He is attempting to speak in Supreme Court legalese while also treating the sentiments of the plain Joe as perfectly congruent with the Court’s jurisprudence on objectivity. What makes Roberts’s act even more notably theatrical, however, is his effort to play the role of a befuddled guy who is honestly trying to do his best, a role that Roberts dons in the hope of getting a rise out of the audience. He seeks that affirmation because it will show that he is not alone in his perplexity, that the other well-meaning, like-minded guys out there share his view. If it were not obvious enough that Roberts’s first try was meant to produce this reaction and the reaffirmation it brings, it quickly becomes evident that he finds the response so reassuring that he must try again and again. His act speaks louder than the words he intones.

This example shows how judicial behavior, despite all the constraints imposed on it, may have its own theatrical potential. In the process of attempting to understand a party’s arguments, or contemplating their implications, judges often imagine themselves into the role of someone governed by the provisions in question. That is, in effect, what Roberts seeks to do here. When remarking, “I can’t promise I haven’t said that,” he aligns himself with the hapless defendant now astonished to find that an innocuous statement provides the basis for a criminal prosecution. When inviting the attorney general of Colorado to read a test message “in a threatening way,” Roberts strives for another encore from the audience, while placing himself in the role of someone who cannot fathom how anyone could perceive the message as a threat. Criticisms of judicial humor generally focus on inappropriate levity in written decisions rather than statements uttered in court, and even when commentators have discussed judges’ behavior on the bench, it is usually taken for granted that questions about interpretation and policy are beyond the reach of any such criticism. Yet Roberts’s questions illustrate a practice that, if not commonplace, is hardly unusual.

As Peters shows, concerns about legal performance have attended primarily to lawyers’ behavior, but her analysis shows how judicial behavior might raise similar questions. At the Counterman hearing, Roberts very deliberately seeks to get a rise out of the audience in a way that is meant to affirm the doctrinal point he seeks to establish. More generally, Peters’s attention to the audience for legal performances, and her extensive historical analyses of these questions, open up many new avenues for research.