The Progressives Who Changed the Supreme Court
The Constitution is the Supreme Law of the United States of America. The American government is divided into three branches, each with distinct authorities.
The elected representatives of the People have the sole authority to make laws.
The President, with help from his Cabinet, have the authority to execute the laws that the representatives of the people have made.
The Supreme Court has the job of ensuring that the President does not use his authority beyond the laws that have been made by the elected representatives; and ensuring laws are not made by elected representatives that directly violate a provision of the Constitution.
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr. (1841-1935) and Louis Brandeis (1856-1941) served on the United States Supreme Court together and today are progressive icons. They changed the role of the Court.
Holmes taught future judges to reject the Constitution and precedent; Brandeis taught future judges how to legislate social programs from the bench while clothing it in judicial form. Both Supreme Court Justices were privately Atheists.
Oliver Wendell Holmes, Jr. was on a mission to dismantle the structures and traditions of American Law. He had an intellectual disdain for religion, which he viewed as nothing more than superstition.
Holmes believed in Social Darwinism—that the elite had an obligation to cleanse the human race of inferior genes through eugenics, views shared by Margaret Sanger, founder of Planned Parenthood, and Adolf Hitler.
He did not believe anything existed such as morality—and certainly not Providence or Natural Law. Holmes set out to divorce criminal law from any notion of morality. In his view, it was up to judges to mold the law—to make law mean what they wished it to mean.
Oliver Wendell Holmes, Jr. believed that all political power should reside with judges. The only way to 'progress' was to circumvent Congress and the Constitution by giving the courts the right to rule over society. Society's values were worthless, merely the opinions of the ignorant. He did not believe the ideas of the Founding Fathers to even be legitimate.
In 1927, Holmes ruled in favor of forced sterilization of "mental defectives." His Supreme Court majority opinion reads: "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. Three generations of imbeciles are enough."
It is incredible to me that American blacks today support Progressivism when its original aims, through Margaret Sanger, founder of Planned Parenthood among many others, included eliminating the black race through sterilization and abortion.
Louis Brandeis was named to the Supreme Court by Woodrow Wilson and immediately backed Wilson's founding of the Federal Reserve System to give the government control of the nation's economy; a constitutional amendment to allow a Federal Income Tax to redistribute wealth; and generous new laws to promote Unionism.
Brandeis thought judges should use their power to change society through their own decisions—to achieve Social Justice. He was an advocate of extremely progressive income tax rates to level society, and to create an army of bureaucrats employed by the government.
Both Holmes and Brandeis believed in imposing unpopular social values directly on the public through the power of the courts—regardless of the will of the People or Congress.
Both sought to greatly diminish the rights of states and increase the power of the central government.
To them, the law was merely an instrument to further political goals. Their influence has been enormous, and the source of extraordinary social changes, by overriding legislation enacted both by Congress and by state legislatures.
William Brennan (1906-1993) and Thurgood Marshall (1908-1993) served together on the United States Supreme Court.
These two Justices may be the most progressive ever to sit on the Supreme Court. Both were Darwinists; both denied any fixed principles. To them, the United States Constitution only represented the time-bound preferences of men who could not possibly have anticipated the demands of the future.
It was up to progressive judges to solve social problems with judicial decisions, rather than apply legal principles. Judges made law rather than applied it. The views of the Founding Fathers were anachronistic.
William Brennan thought the federal court system should take on the role as schoolmaster to the nation. He believed the federal judiciary had supremacy over the other branches of government and trumped the Will of the People.
Brennan emphasized that individuals should be liberated from traditional standards. He did favor groups of people but never the organic or spontaneous associations generated by a civil, commercial society. No, what he favored was legally constructed groups of people—identity politics, groups of "societal victims."
It was Brennan who somehow "found" a "Right to Privacy" in the United States Constitution that had never been seen before. Perhaps the justices before him had weak eyes.
Justice Brennan did not believe marriage was deserving of any special legal protections. He created a federal entitlement to welfare, ruling that individuals had an unrestricted right to live off of taxpayers. His decisions in general created an ever-expanding catalog of individual rights and expanded federal powers.
Thurgood Marshall denied that the Founding Fathers of America were politically or morally wise men. He believed the original meaning of the Constitution had died.
Justice Marshall was a judicial activist to the core. He believed the Court must step outside the boundaries of the Constitution the secure the triumph of the administrative state dedicated to leveling American society, and that individual passions deserved unfettered expression. A powerful centralized administration was necessary, in his view, in the name of equality and radical individuality.
My source for this article is History of American Political Thought by Bryan-Paul Frost and Jeffrey Sikkenga.