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The Progressives' CenturyPolitical Reform, Constitutional Government, and the Modern American State$
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Stephen Skowronek, Stephen M Engel, and Bruce Ackerman

Print publication date: 2016

Print ISBN-13: 9780300204841

Published to Yale Scholarship Online: May 2017

DOI: 10.12987/yale/9780300204841.001.0001

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PRINTED FROM YALE SCHOLARSHIP ONLINE (www.yale.universitypressscholarship.com). (c) Copyright Yale University Press, 2021. All Rights Reserved. An individual user may print out a PDF of a single chapter of a monograph in YSO for personal use.date: 23 September 2021

The Progressive Struggle with the Courts

The Progressive Struggle with the Courts

A Problematic Asymmetry

Chapter:
(p.65) 3 The Progressive Struggle with the Courts
Source:
The Progressives' Century
Author(s):

Brian Z. Tamanaha

Publisher:
Yale University Press
DOI:10.12987/yale/9780300204841.003.0004

This chapter analyzes the conflict between conservative and progressive judicial philosophies. In a century-long battle over the courts, conservatives are defenders of the rule of law, while progressives are the champions of justice. This difference has created an asymmetry: conservatives occupy the rhetorical high ground, and progressives struggle to square their position with the judicial duty to apply the law. Justice Scalia's textualism-originalism, Justice Thomas' originalism, and Justice Roberts' claim that judges call balls and strikes—all emphasize fidelity to the law. In contrast, Justice Breyer pragmatically views judging as a means to social ends. Justice Sotomayor (when still a circuit judge), has said that, “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better [judicial] conclusion than a white male who hasn't lived that life”.

Keywords:   Progressives, Progressivism, rule of law, justice, judiciary, conservatives, Supreme Court justices

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