Carrie Buck was born in 1906 in Charlottesville, Virginia, home to the university founded by the author of the Declaration of Independence. After six years of perfectly fine academic performance, she was withdrawn from school because her foster parents, Alice and John Dobbs, preferred that she work long hours as a domestic servant. She was raped and impregnated by a relative of the Dobbses when she was 17, after which she was kicked out of the house and committed to the Virginia Colony for Epileptics and Feeble-Minded. Unfortunately for Carrie, in 1924 the state had passed a law authorizing the involuntary sterilization of anyone committed to the facility (and not those outside it.) She was selected as the test case to get the law approved by the courts.
By the time the case went to the Supreme Court, courts in 6 states had ruled that mandatory sterilization laws were unconstitutional either facially or in application. American elites — including Walter Lippman in the New Republic — were beginning to push back against the kinds of crude intelligence testing and junk science that caused Carrie to be targeted by eugenicists. Unfortunately, the Supreme Court was still dominated by men who took the truths of eugenics for granted, and Chief Justice Taft assigned the case to the most Social Darwinian of the justices, Oliver Wendell Holmes Jr. The resulting 5-paragraph opinion upholding the sterilization of Carrie Buck was absolutely appalling:
There can be no doubt that, so far as procedure is concerned, the rights of the patient are most carefully considered, and, as every step in this case was taken in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law.
The attack is not upon the procedure, but upon the substantive law. It seems to be contended that in no circumstances could such an order be justified. It certainly is contended that the order cannot be justified upon the existing grounds. The judgment finds the facts that have been recited, and that Carrie Buck
is the probable potential parent of socially inadequate offspring, likewise afflicted, that she may be sexually sterilized without detriment to her general health, and that her welfare and that of society will be promoted by her sterilization,
and thereupon makes the order. In view of the general declarations of the legislature and the specific findings of the Court, obviously we cannot say as matter of law that the grounds do not exist, and, if they exist, they justify the result. We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.
But, it is said, however it might be if this reasoning were applied generally, it fails when it is confined to the small number who are in the institutions named and is not applied to the multitudes outside. It is the usual last resort of constitutional arguments to point out shortcomings of this sort. But the answer is that the law does all that is needed when it does all that it can, indicates a policy, applies it to all within the lines, and seeks to bring within the lines all similarly situated so far and so fast as its means allow. Of course, so far as the operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.
The 85-year-old Holmes, while of course a revered figure in American law, was also by this time a lazy and sloppy crank uninterested in the facts of the cases he was hearing, and virtually everything in his opinion is false or misleading. An even cursory glance at the record would have shown that Carrie did not received due process, most notably because of grossly inadequate legal representation. (Even if YANAL, if the state was trying to sterilize your client on the grounds of feeble-mindedness, but didn’t put any of Carrie’s teachers on the stand although they did call teachers of some of her distant relatives, what would you do? Right. Carrie’s lawyer, Irving Whitehead, didn’t, and made countless similar glaring mistakes, most notably cross-examinations that insulted Carrie and helped make the state’s incredibly weak case.) The state’s “evidence” that Carrie and her mother were “feeble minded” rested on a single crude test not designed as a test of general intelligence, and the state’s contention that Carrie’s 8-month-old daughter was “feeble minded” was based on the vague diagnosis of a nurse. The analogy between mandatory sterilization and mandatory vaccination is very weak, given that the former is much more intrusive, and the threats to public health comparable only if you make the fascist assumptions about society being “swamped with incompetence” that permeate Holmes’s opinion.
The opinion was 8-1, with Pierce Butler — a reactionary but the Court’s only Roman Catholic — dissenting without opinion. Louis Brandeis joined the majority, and while I would caution that this was a period in which there was a strong norm that justices not write separate opinions, a lot of liberals of this period were sympathetic to eugenics. Carrie was sterilized, as were many more men and women in the subsequent decades. The decision has never been overruled although Skinner v. Oklahoma held that singling out some people and not others similarly situated for sterilization was unconstitutional.
By the criteria I set out in my initial post — bad reasoning, immoral constitutional theory, and/or bad consequences — Buck v. Bell is one of the very, very worst Supreme Court decisions ever, worse than numerous more famous cases in the anticanon. I will defend this judgment in a follow-up post. Many of the facts in his post are derived from Adam Cohen’s superb history of the case, Imbeciles.