Thursday, May 29, 2014

The Problem with Buck v. Bell

If I asked one of my liberal, right-thinking friends to make a list of the worst Supreme Court cases in history, the results would be predictable. Dred Scott rightly tops the list. Plessy v. Ferguson is probably number two, if only because most of us have mercifully forgotten the earlier cases that far outstripped it in racism. Then it gets more complicated, but you can bet that one of the next cases will be Lochner v. New York Buck v. Bell. As it was decided, I agree that it was a terrible opinion.

The facts, briefly: in 1925, the heyday of eugenics, Virginia enacted a law that allowed mandatory sterilization of institutionalized women who were deemed carriers of inheritable mental illnesses. Carrie Buck was such a woman, and after being unwillingly sterilized, she filed a collusive suit that reached the Supreme Court. In what they knew was a doomed argument, Buck's lawyers contended that the law infringed on her fundamental right to procreation under the 14th Amendment.

This should have been an easy opinion to write. The law constituted a denial of liberty, but there is nothing wrong with denying liberty as long as the state provides due process, which Virginia did in this case. If the people of Virginia think the law is an improper violation of liberty, the legislature, not the court, is the right place to make that argument.

Puzzlingly for such a clear-cut case, that's not what Oliver Wendell Holmes said. Instead, we got this:
...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. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.
This was the only slip Holmes ever made in his life.
Believe it or not, this is a toned-down version of the opinion that Holmes originally wanted to issue. The first draft has been mercifully lost to history. Why did he write it like this? Holmes almost always tried strenuously to keep his policy preferences out of his judicial opinions. (Look here for an excellent modern example of this.) But this opinion reads like an extended defense of eugenics—exactly the kind of argument that he thought should be submitted to a legislature, not an appellate court. "I recognize without hesitation," wrote Holmes in a calmer moment, "that judges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions."

It would be easy to dismiss this case as an aberration in Holmes's thinking. But that's certainly not how Holmes himself took it: for the rest of his life, the Justice reflected on his Buck v. Bell opinion as one of the finest he ever wrote. In fact, I think this opinion reveals a deep-lying tension in Holmes's legal philosophy. On the one hand, Holmes—a true democrat—was firmly committed to putting moral and political decisions in the hands of legislatures, not judges. But Holmes was also a legal realist—he was committed to using law as an instrument of policy rather than a philosophical and self-contained system. Buck v. Bell put those two principles in conflict, and the wrong one (at least as far as this case is concerned) won.

To sum up, Buck v. Bell is a terrible opinion, but not for the reason you think. The Virginia law was despicable, but that should have relatively little importance to our evaluation of this case. Those who think the case's badness derived from the wrongness of the law it upheld make the same mistake as Justice Holmes: they assume that the wisdom of the law was a matter to be disputed. Buck v. Bell was wrong for the same reason that Lawrence v. Texas was. In both cases, for the record, I would have written a concurring opinion.

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