The Role of the Judge in the Twenty-First Century

=875025; Cross, supra note 12, at 320-21; Andrew F. Daughety & Jennifer F. Reinganum, Speaking Up: A Model of Judicial Dissent and Discretionary Review, 14 SUP. 1058 BOSTON UNIVERSITY LAW REVIEW [Vol. 86:1049 bolder when the legislature is in the hands of their ideological allies because then their initiatives are less likely to be nullified by statutory enactments or amendments. I don’t consider this element of the judicial utility function to be as important as the strategic school argues; most judges don’t know or think much about legislative reactions to their decisions.24 But it is an element and one that is consistent with the power factor in judging – the fact that judges do want to change the world for the better, as they understand the better, within the leeway that the loose and undisciplined American judicial system gives them. What I’m calling a protocol could equally be called a game. You don’t play chess unless you’re prepared to play by the rules. The rules I’m speaking of with reference to the judicial process are not legal rules; I’m not echoing John Roberts. They are rules of articulation and deportment.