Someday the Senate will consider a president’s nominee for the Supreme Court seat left vacant by the late Antonin Scalia.
Meanwhile, interested parties should prepare by reading a gripping new book about one of the court’s darkest moments.
“Imbeciles” is the arch title that lawyer-journalist Adam Cohen has given his narrative of Buck v. Bell, the 1927 case in which the justices approved Virginia’s involuntary sterilization of “feeble minded,” epileptic and other purportedly genetically “unfit” citizens.
The vote was 8 to 1. Justice Oliver Wendell Holmes Jr.’s opinion dispensed with young Carrie Buck’s physical integrity in five paragraphs, the six cruelest words of which characterized Virginia’s interest in preventing Buck from burdening the state with her defective offspring: “Three generations of imbeciles are enough.”
As Cohen shows, everything had to go wrong in the legal system to produce this horror, and everything did, starting with a crooked local process that declared Buck intellectually inferior based on her out-of-wedlock pregnancy — an indicator, state doctors averred, of promiscuity, which connoted feeblemindedness.
In fact, she had been raped by her foster parents’ nephew; the couple then sought to cure this embarrassment by having Buck sent away to the state colony for her “kind.”
Virginia established the institution to isolate those who supposedly threatened “racial hygiene” and prevent them from breeding. All told, more than 30 states had such laws during the mid-20th century, though only California surpassed Virginia’s 8,300 involuntary sterilizations. It conducted roughly 20,000.
Today, the evil of such laws is universally recognized. The governors of North Carolina, Virginia and California apologized a decade ago, and in 2013 North Carolina approved $50,000 for each surviving victim.
But the story isn’t over: Virginia has promised $25,000 per person in compensation but appropriated only enough for 16 awards. The Golden State has no compensation plan.
And Buck v. Bell, though basically a dead letter, has never been formally overruled. It stands as a baleful monument — not to the court’s malice, but to the eternal flaws in human nature that cause people to commit injustice with the best of intentions.
Many, if not most, right-thinking Americans approved of involuntary sterilization at the time. Doctors, lawyers, politicians, educators: All marveled at advancements in biological science, anxiously surveyed multiplying Appalachian poor or Eastern European immigrants — and concluded government could and should improve the country’s human “stock” just as a rancher breeds better steers.
At its peak, in the years before, during and just after World War I, the pseudo-science of “eugenics” was a national fad, almost a mania. Advocates were not only or even especially right wing; state sterilization laws emerged first in the North and West, and many progressives embraced “racial hygiene” along with pure food and drug laws or urban sanitation.
A good companion volume to Cohen’s is “Illiberal Reformers,” by Princeton’s Thomas C. Leonard, which describes how some Progressive era economists actually made eugenicist arguments for early minimum- wage laws. Raising the wage floor would encourage employers to hire only the most productive workers, who would prosper and propagate, while “unemployables” exited the labor force and got “treated.”
In an era of apocalyptic warnings of “race suicide,” Virginia’s plans for Carrie Buck made perfect sense not only to Holmes but also to his illustrious colleagues: William Howard Taft, a former president; Louis D. Brandeis, the great “people’s lawyer”; and Harlan Fiske Stone, who would later be one of the New Deal’s judicial defenders.
To be sure, some state supreme courts had struck down sterilization laws, which is why Virginia sought a legal green light at the highest court in the land before sterilizing Buck pursuant to a freshly adopted 1924 law.
For the justices, though, elite groupthink and the “strength of the State,” as Holmes put it, outweighed a few lower courts’ misgivings — precedents Holmes did not even address, let alone refute.
One justice, the obscure Pierce Butler, dissented, without a written opinion. Butler was a son of Irish immigrants and the only Roman Catholic justice; sterilization, of course, ran afoul of church doctrine. Cohen plausibly speculates, as did Holmes himself at the time, that Butler’s religion influenced him.
I like to imagine Butler also wondered how Buck v. Bell would read to future generations, asking himself whether they might look back on the “expertise” embodied in Virginia’s law and see not dispassionate science but the opposite. The case certainly wasn’t the first to present the justices with an intellectual fad or popular prejudice dressed up as something finer, nor would it be the last.
For whatever reason — faith, common sense, a well-functioning moral compass and BS detector — Butler found it within himself to say “no” while a powerful, high-minded flock all around him chorused “yes.” Let’s hope the next justice, whenever he or she arrives, is occasionally capable of that, too.
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