Clarence Thomas, Amateur Historian

Adam Cohen, author of a superb recent book about Buck v. Bell — a real nadir in the history of the Supreme Court — has a good column about Clarence Thomas’s misuse of the case to support his crank views on abortion rights:

In making his argument, Thomas cited my book Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck repeatedly. (He also cited an article I wrote about Harvard’s ties to eugenics). I don’t want to appear ungrateful: It’s an honor to be relied on by the highest court in the land, and these days, nonfiction authors appreciate just being read at all. But Thomas used the history of eugenics misleadingly, and in ways that could dangerously distort the debate over abortion.

Thomas’s opinion came as an addendum to a decision that sidestepped the most difficult issues raised by the Indiana law. Although the Court upheld Indiana’s requirement that abortion providers bury or cremate fetal remains, it refused to reinstate another part of the law that banned abortions solely because of the sex or disability of the fetus. The New York Times reported that the decision was “an apparent compromise.” It says a lot about where abortion law is today that upholding a law requiring a woman to allow her aborted fetus to be given the funerary rites of a dead child—and possibly to pay a hefty bill for it—now counts as a “compromise.”

[…]

None of this was about abortion, however. The most prominent American eugenicists did not support abortion. As the intellectual leader of the movement, Harry Laughlin—the head of the infamous Eugenics Record Office, on Long Island—put it, the goal of modern eugenics was “preventing the procreation of defectives rather than destroying them before birth.” In fact, at the height of the eugenics movement, abortion was outlawed throughout the United States, so it was not going to be the mechanism for changing the American gene pool.

The American eugenics movement overwhelmingly supported not abortion but forced sterilization. More than half of the states adopted laws like Virginia’s, which allowed the state to sterilize people it deemed unworthy of reproducing because of physical or mental deficiencies or other “failings,” such as alcoholism or poverty.

Between eugenic sterilization and abortion lie two crucial differences: who is making the decision, and why they are making it. In eugenic sterilization, the state decides who may not reproduce, and acts with the goal of “improving” the population. In abortion, a woman decides not to reproduce, for personal reasons related to a specific pregnancy.

There are a lot of reasons why “originalism” isn’t an attractive normative theory and why it doesn’t actually constrain judges in practice, but one obvious reason is that lawyers aren’t actually historians, and 99.9% of law office history is cherry-picked factoids hand-selected to reach a predetermined conclusion (and, of course, when there’s simply no historical evidence to defend your position you can just ignore it.)

..as a commenter points out, this piece by Audrey Farley is also very good.