Supreme Court

Progressives and Eugenics: The Case of Justice Brandeis

Understanding the progressive movement's ugly record.


In his superb new book Illiberal Reformers: Race, Eugenics, and American Economics in the Progressive Era, Thomas C. Leonard of Princeton University tells the story of the "progressive scholars and activists who led the Progressive Era crusade to dismantle laissez-faire, remaking American life with a newly created instrument of reform, the administrative state." It's a fascinating and frequently depressing story. As Leonard documents, while the progressives did introduce a number of helpful, legitimate reforms, they also threw their weigh behind some of the most destructive government policies of the era, from race-based restrictions on immigration (justified in the name of protecting U.S. workers from degrading competition) to the South's racist Jim Crow regime (justified on the grounds that state officials should have broad leeway to control economic affairs). The progressives were "so convinced of the righteousness of their crusade to redeem America," Leonard observes, "that they rarely considered the unintended consequences of ambitious but untried reforms." I would also add that the progressives didn't just bestow vast new authority on the government, they also undermined many traditional checks on government power, such as judicial review. It was a foolproof recipe for the state-sanctioned abuses that followed.

Perhaps the most glaring example of this phenomenon is eugenics, a notorious branch of pseudo-science that was championed by most leading progressive politicians and activists and ultimately given the stamp of legal approval by progressive judicial hero Oliver Wendell Holmes Jr. Writing for the majority in the 1927 Supreme Court case of Buck v. Bell, Justice Holmes upheld the state of Virginia's efforts to forcibly sterilize a young woman who had been raped and impregnated by the nephew of her foster mother and sent to a home for the "socially inadequate" by her foster parents. "We have seen more than once that the public welfare may call upon the best citizens for their lives," Holmes wrote (likely alluding to his own military service in the Civil War). "It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices." The forced sterilization of Carrie Buck went forward.

Credit: Library of Congress

Writing recently in The New York Times, David Oshinsky reviews Leonard's Illiberal Reformers and confronts the ugly legacy of the progressive movement. In one notable passage from that review, Oshinsky puzzles over the fact that Justice Louis Brandeis, a progressive luminary best remembered today for his legal advocacy on behalf of privacy and "the right to be let alone," also signed on to Holmes' notorious pro-eugenics decision.  

"Why did Justice Brandeis, the so-called people's attorney, join the majority?" Oshinsky asks. Perhaps "Brandeis may have been trying to placate Holmes," his frequent ally in other cases, Oshinsky suggests. "Or perhaps Brandeis truly believed in using state power 'to create a better world' through sterilization. Both versions are plausible, but the evidence is flimsy."

Brandeis is an admirable jurist in certain ways, but it's not like Buck v. Bell is the only blemish on his otherwise shiny legal career. Most feminist legal scholars today, for example, look none too kindly on the sexist, collectivist brief that Brandeis filed as a lawyer on behalf of the state government in Muller v. Oregon. At issue in that 1908 case was a state regulation that forbid women from working more than 10 hours per day in a laundry. According to Brandeis, the law was perfectly justifiable because the state had a special interest in controlling the ways in which women used their bodies. Because those bodies might give birth to future generations, Brandeis argued, they counted as a form of collective property. "The overwork of future mothers," Brandeis wrote, "directly attacks the welfare of the nation." The Supreme Court agreed with Brandeis. "As healthy mothers are essential to vigorous offspring," the Muller decision held, "the physical well-being of woman becomes an object of public interest and care in order to preserve the strength and vigor of the race."

And then there's the fact that in 1928, one year after voting in support of eugenics, Brandeis invoked Buck v. Bell in another case, in which he cited the Buck v. Bell ruling as a permissible example of the government "meeting modern conditions by regulation." Perhaps the evidence against Justice Brandeis isn't so flimsy after all.

Related: Louis Brandeis' Partial Justice