Justice Thomas’ wrong-headed attack on progressivism

Courtly Observations is a recurring series by Erwin Chemerinsky that focuses on what the Supreme Court’s decisions will mean for the law, for lawyers and lower courts, and for people’s lives.

In a speech on April 15 at the University of Texas, Justice Clarence Thomas said that the rise of progressivism since the beginning of the 20th century has caused great harm. Specifically, in what was ostensibly about the 250th anniversary of the Declaration of Independence, Thomas said, “At the beginning of the twentieth century, a new set of first principles of government was introduced into the American mainstream. The proponents of this new set of first principles, most prominently among them the 28th president, Woodrow Wilson, called it progressivism.” Thomas then went on to blame progressives for the worst crimes of the 20th century, insisting that “Stalin, Hitler, Mussolini, and Mao” were all “intertwined with the rise of progressivism,” as was “racial segregation,” “eugenics,” and various other evils. As Thomas summarized, “progressivism seeks to replace the basic premises of the Declaration of Independence, and hence our form of government.”

To be clear, I see no problem with justices and judges expressing their views off the bench. Although, of course, they should not speak about cases pending or likely to be pending before them, they still retain the right to speak on other matters. And I believe they should speak to help inform people about the law and the legal system. As a lawyer, I also prefer to know the views of the judges I am appearing before, rather than pretend that they are blank slates.

At the same time, I (perhaps naively) would hope that justices would look for ways to unite our country at a time when we are so deeply polarized. But a conservative Supreme Court justice broadly condemning progressive ideas, and claiming they are responsible for the worst atrocities of the last century, is the antithesis of helping to find common ground.

As an initial matter, it is wrong to think of Stalin, Hitler, and Mussolini as progressives by any definition of that term, and though Mao considered himself a progressive revolutionary, his actions had no resemblance to what we considered progressivism in the United States. It is also wrong to say that progressives reject the principles of the Declaration of Independence. Above all, the 27 grievances in the Declaration of Independence were about abuses of executive power by the King of England. Especially at the current moment, it is progressives, far more than conservatives, who are challenging strong executive control over our government. In light of Thomas’ continual votes in favor of broad executive power – in cases ranging from Hamdi v. Rumsfeld (where he alone voted in favor of the president’s authority to detain enemy combatants without due process) to Trump v. United States (where he supported complete immunity for the president from criminal liability for official acts taken in office) – it is odd to see him criticizing progressives for being the ones to abandon a document concerning the profound dangers of executive overreach.

Certainly, the history of progressivism is not spotless. Some progressives did champion eugenics, which led to horrific consequences. But one need not defend everything progressives have advocated to see the flaws in Justice Thomas’ unequivocal and emphatic condemnation of everything progressive.

Consider some of the actions of the Supreme Court since the turn of the 20th century that unquestionably would be regarded as progressive. Would Thomas, or anyone, really claim that these made our country worse?

Racial justice. Thomas suggests that the country began to go wrong early in the 20th century with the presidency of Woodrow Wilson. It is true that Wilson considered himself a progressive. But, on race issues, he was among our least progressive presidents, barring Black individuals from the federal civil service.  

And it was progressives, led by the NAACP and Thurgood Marshall, who successfully challenged the Jim Crow laws that imposed apartheid through much of the country and culminated in Brown v. Board of Education. It was also progressives who finally succeeded in Loving v. Virginia, written by Chief Justice Earl Warren, in declaring unconstitutional laws prohibiting interracial marriage. It was progressives who ultimately overcame strong and sustained conservative opposition to enact the Civil Rights Act of 1964 and the Voting Rights Act of 1965.

Our country still has a long way to go to achieve racial equality, but that is not the fault of progressives. In the area of education, it was two 5-4 Supreme Court decisions, with conservatives in the majority, San Antonio Board of Education v. Rodriguez and Milliken v. Bradley, that contributed greatly to separate and unequal schools. In Rodriguez, which was decided in 1973, the court held that disparity of school funding does not violate equal protection. In Milliken, decided the following year, the court ruled that there generally cannot be desegregation efforts that cross school district boundaries. The result in virtually every major metropolitan area is city school systems that are overwhelmingly comprised of students of color spending much less on education than wealthier, largely white suburban school districts. 

Application of the Bill of Rights to the states. One of the most important changes in constitutional law occurred in the 20th century, and especially the 1960s, with the Supreme Court holding that most of the Bill Rights is incorporated into the due process clause of the 14th Amendment and applies to state and local governments. It is unthinkable today that state and local governments – where most governing is done – could ignore the Bill of Rights. But it was not until 1925 that the First Amendment’s protection of freedom of speech was applied to the states in Gitlow v. New York. It was not until 1932 that the right to counsel was applied to the states in capital cases in Powell v. Alabama, and not until 1963 that the right to counsel was applied to the states in any case where a criminal defendant faced a possible prison sentence in Gideon v. Wainwright. It was the Warren Court that ultimately found most of the Bill of Rights’ provisions to be incorporated.

And it was the more progressive justices – Earl Warren, William Douglas, Hugo Black – who led this effort. In fact, Thomas has repeatedly taken the position that he does not believe that the establishment clause applies to state and local governments. Simply put, the application of the Bill of Rights to state and local governments was an enormous expansion in the protection of freedom and it was the result of progressive advocacy and decisions.

Freedom of speech. There were not major Supreme Court cases protecting freedom of expression until well into the 20th century. The initial Supreme Court cases about freedom of speech – such as Schenck v. United States, Debs v. United States, and Abrams v. United States, all decided in 1919 – ruled in favor of the government and gave it great latitude to regulate speech. In the 1951 case of Dennis v. United States, the court – over the strong objections of progressives Black and Douglas – upheld convictions of those who had taught the works of Marx, Lenin, and Engels.

The most significant Supreme Court cases advancing freedom of speech were progressive victories. In 1964’s New York Times v. Sullivan, the Supreme Court unanimously, in an opinion by Justice William Brennan, stressed that the First Amendment must be understood “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” The court held that civil liability can infringe the First Amendment and limited the ability of public officials to sue for defamation. It is a hugely important decision advancing freedom of speech. (Thomas has called for it to be overruled.)

And in 1971’s New York Times v. United States (the Pentagon Papers case), the court ruled 6-3, over the dissents of three conservative justices, that the government could not enjoin publication of the Pentagon Papers, a history of America’s involvement in the Viet Nam War. It is a crucial case that limited the power of the government to censor the press.

Conclusion. 

I selected just three examples where the progressive position prevailed in the Supreme Court and where few would deny that the decisions made the country better. I could give many more examples, such as the expansion of voting rights, the application of equal protection against discrimination based on sex and sexual orientation, the protection of the rights of criminal suspects and defendants, and plenty of others where the progressive position advanced liberty and equality.

My position, of course, is not that progressives have always been right and conservatives always have been wrong. That would be as absurd as Thomas’ unqualified attack on progressivism.  My point is that contrary to what Thomas said in his speech at the University of Texas, history has vindicated so many of the positions that progressives have taken. Does Thomas really believe that we were better at the start of the 20th century when women could not vote and racial discrimination was endemic? Does he really believe that progressives have done little to advance the promise of the Declaration of Independence that all people are created equal and that people possess fundamental rights?

Speeches by Supreme Court justices understandably attract a great deal of attention. But I cannot think of a recent talk by a justice that I disagree with more than Thomas’ speech at the University of Texas.