Imbeciles

by Adam Cohen

  Taft had preexisting connections to the issues presented in Buck v. Bell. Before joining the court, he had served as chairman of the board of the Life Extension Institute, which worked to prolong human lives through such measures as promoting physical exams and advocating for pure foods and drugs. The chairman of the group’s Hygiene Reference Board was Irving Fisher, the Yale economist and prominent eugenicist. The Life Extension Institute’s major publication, How to Live—which had a full-page photo of Taft in its opening pages—included a chapter on eugenics. It advocated “sterilization of certain gross and hopeless defectives, to preclude the propagation of their type.”

  The most prominent member of the court, after Holmes and the chief justice, was Louis Brandeis. Born in Louisville, Kentucky, Brandeis settled in Boston after graduating from Harvard Law School. It was during his work as a public-spirited attorney that he won fame as the “people’s attorney” and invented the “Brandeis brief,” which made sociological facts and expert opinions the primary part of Supreme Court advocacy.

  Brandeis had strongly supported Wilson’s 1912 presidential campaign, and became a close adviser to the administration, particularly on antitrust policy. In January 1916, President Wilson nominated Brandeis to the court, partly because of the high regard in which he held Brandeis, and partly to shore up liberal support for his reelection campaign.

  There was considerable opposition to the choice of Brandeis. Members of the business and legal establishments argued that he was too radical. Adding to the anti-Brandeis sentiment was the reluctance of many people to see a Jew join the court for the first time. Seven former American Bar Association presidents came out against Brandeis, as did much of Brahmin Boston, including Harvard’s president, A. Lawrence Lowell. Holmes, who owed his Harvard professorship to Brandeis’s fund-raising, could not bring himself to support the nomination. It “was a misfortune for the Court,” he wrote a friend, “because whichever way it went half the world would think less of the Court thereafter—but I expect [Brandeis] will make a good judge.” Despite the opposition, the Senate confirmed Brandeis by a 47–22 vote.

  Brandeis was considered a liberal on the court, though his vote with the majority in Bailey v. Drexel Furniture Co. demonstrated that he did not always side with the progressives. He generally supported civil rights plaintiffs, but he did not fundamentally challenge the racial order that prevailed at the time. Brandeis joined the majority in Lum v. Rice, rejecting the claim of a Chinese American girl in Mississippi who wanted to attend an all-white school. Segregated schools, a unanimous court held, did not violate the Fourteenth Amendment’s equal protection clause.

  Harlan Fiske Stone, a New Hampshire native and Columbia Law School graduate, had joined the court in 1925. A former Wall Street lawyer and attorney general under Republican president Calvin Coolidge, Stone was opposed by some progressives for being too close to big business. Once on the court, however, Stone quickly settled into the liberal bloc. In later years, he would be one of the justices most supportive of the New Deal when it came under conservative legal attack. Roosevelt eventually elevated Stone to be chief justice, the ultimate confirmation of his liberal record. Nevertheless, Stone was sympathetic to social Darwinism, an outlook he adopted at Amherst College, under the influence of Charles Edward Garman, a prominent philosophy professor.

  The remaining justices ranged from moderate to extreme conservatives. James Clark McReynolds, another Kentuckian, had been attorney general under President Wilson, who appointed him to the court in 1914. In his legal practice, McReynolds had fought monopolies—a major progressive cause—but as a justice he was deeply conservative. He was also mean-spirited and bigoted: Holmes called him “a savage.” McReynolds, who was virulently anti-Semitic, could not reconcile himself to Brandeis’s presence on the court. When Brandeis spoke at the justices’ meetings, McReynolds would often get up and leave the room, and there was no official court portrait in 1924 because McReynolds refused to follow protocol and sit beside Brandeis.

  George Sutherland emigrated from England to Utah with his parents after they converted to Mormonism. Sutherland attended Brigham Young Academy, which later became Brigham Young University, where he came under the sway of its headmaster, Karl G. Maeser, who believed strongly in social Darwinism. From there, Sutherland moved on to the University of Michigan Law School, and after graduation to the practice of law in Provo. He was elected to the House of Representatives and the Senate, then President Harding appointed him to the court. As a justice, Sutherland was generally a reliable conservative vote. In the 1930s, he would become the intellectual leader of the “Four Horsemen of the Apocalypse,” a bloc of justices who voted to strike down key parts of the New Deal.

  Willis Van Devanter was born in Marion, Indiana, but he made his name in the Wyoming Territory, where he moved as a young man. He practiced law and served in the territorial legislature until President Benjamin Harrison appointed him chief justice of the Wyoming Territorial Supreme Court. President Theodore Roosevelt appointed Van Devanter to the U.S. Court of Appeals for the Eighth Circuit, and President Taft named him to the Supreme Court. When Taft joined him on the bench, Van Devanter was a reliable member of his pro-business majority. During the New Deal, Van Devanter was a stalwart member of the Four Horsemen.

  Edward T. Sanford, a Tennessean and a Harvard Law School graduate, was a centrist—one who was, Holmes said, “born to charm.” He was a federal judge in his home state before President Harding nominated him to the court. Sanford generally voted with Taft’s pro-business bloc, but he was less doctrinaire than some. In 1923 he dissented from a ruling striking down Washington, D.C.’s minimum wage law for women. Sanford wrote the majority opinion in Gitlow, the anarchist speech case, from which Holmes so energetically dissented. Sanford upheld the conviction, but ruled for the first time that the core civil liberties in the Bill of Rights applied to the states. This principle, known as “incorporation,” greatly advanced civil liberties by subjecting the states to federal free speech and other protections.

  The final member of the court was Pierce Butler, an archconservative and the only Catholic justice. Butler was born in Minnesota to Irish immigrants who had fled the potato famine. He began his career as a successful railroad lawyer—or, as critics saw it, a tool of the railroad interests. He was also a regent of the University of Minnesota where, during World War I, he was a driving force in dismissing professors who held “unpatriotic” views. Butler was appointed to the court by President Harding, who was looking to name a Catholic.

  On the court, Butler held to his principles, showing little interest in compromise. He was, like McReynolds, a bigot, though a less foul-tempered one. When Benjamin Cardozo was being considered for the court, Butler reportedly joined McReynolds and Van Devanter in asking President Hoover not to “afflict the Court with another Jew.” Butler was a strong believer in market capitalism and feared the effect of “too much wet-nursing by the state” on “individual initiative and development.” He held firmly to his Catholic faith, and his sense of morality infused his legal decision making. Butler liked to quote Archbishop John L. Spalding: “The end of all worthy struggles is to establish morality as the basis of individual and national life.”

  • • •

  When the justices met in conference to discuss Buck v. Bell, Holmes doubtless played an outsize role. Many of the justices had some interest in the subject matter of the case. Taft had served on the Life Extension Institute board. Sutherland had had his brush with social Darwinism at Brigham Young, and Stone had a similar experience at Amherst. McReynolds, Van Devanter, and Butler believed in the inferiority of certain groups. Holmes, however, was the only member of the court who had given serious thought to the legal issues that eugenics raised.

  Holmes had been considering eugenics at least since his 1873 article on the gas stokers’ strike, and he had formed strong opinions on the direction in which he wanted the law to go. In his 1915 Illinois La
w Review essay, he wrote of “taking in hand life and trying to build a race.” In his 1923 introduction to Wigmore’s treatise, he was more precise. Holmes favored laws “to improve the quality rather than increase the quantity of the population” and “keep certain strains out of our blood.” That statement, written just four years before the court considered Buck v. Bell, could have been an endorsement of Virginia’s eugenic sterilization law.

  At conference, Holmes likely held forth on eugenics, and on why he thought the Virginia statute should be upheld. His views would have been highly influential with his fellow justices. As the court’s senior member, Holmes would by tradition have been first to speak, after the chief justice, which would have amplified his words. More significant was the fact that Holmes, who was now more than halfway through his ninth decade, was revered for his wisdom about the law. Taft spoke for the court when he said of Holmes that it was a “great comfort to have such a well of pure common law undefiled immediately next to one so that one can drink and be sure of getting the pure article.”

  The justices’ conferences varied in style over the years based on the court’s membership and its leadership. Before Taft took over, when justices took different positions at conference it was regarded “as an invitation to a cockfight,” Holmes recalled. Taft, however, cut off the debate over a case when the issues seemed clear. As a result, Holmes said, “never before have we gotten along with so little jangling and dissension.”

  Taft was known for trying to use the conference to build consensus. He liked unanimous rulings, and he had an aversion to sharply divided ones. When the majority view on a case became clear, Taft lobbied his fellow justices to join the majority—a charm offensive he called “massing the court.” If Taft tried to mass the court in Buck v. Bell, he did well. Eight of the nine justices agreed to uphold the Virginia law and Carrie’s sterilization, with only Butler dissenting.

  Holmes was, in many ways, the obvious justice to write the majority opinion. Taft made it a practice to assign opinions to justices based on their “particular interests and expertise,” a scholar of the court has observed—and no other justice came close to Holmes’s interest and expertise in eugenics. It is also likely that Holmes expressed a desire to write the opinion, given his strong feelings on the subject, and because of his seniority, and the deep respect in which he was held, Taft would have been inclined to grant the request.

  When Taft assigned the opinion to Holmes, he sent a note with some advice:

  Some of the brethren are troubled about the case, especially Butler. May I suggest that you make a little full [the discussion of] the care Virginia has taken in guarding against undue or hasty action, the proven absence of danger to the patient, and other circumstances tending to lessen the shock that many feel over such a remedy? The strength of the facts in three generations of course is the strongest argument for the necessity for such state action and its reasonableness.

  Taft’s note was significant in a number of respects. It made clear that there were justices who were “troubled” by the case—who perhaps felt “shock” at the idea of sterilization—and they would still need to be persuaded, or at least convinced to stick with the majority. It also suggested that the work Laughlin had done with his model eugenics statute, and that Strode had done in drafting the Virginia law, had made a difference: the procedural protections against “undue or hasty action,” and the protections for the health of the “patient,” or inmate, made a real impression on the chief justice.

  Perhaps most interesting, Taft—who was in a position to know—said that the strongest argument in winning over wavering justices would be “the facts in three generations.” This was something Dr. Priddy believed when he selected Carrie to be at the center of the test case, and something Laughlin said right away when he reviewed the facts of the case. It meant that Dr. Priddy and Strode were right, as a matter of trial strategy, to work as hard as they did to produce “evidence” that the less-than-eight-month-old Vivian was mentally defective. It may have been the most important fact—or, more accurately, falsehood—in the whole case.

  Holmes took to his writing assignment with great enthusiasm, and he quickly produced an opinion for the ages. Holmes’s first book, The Common Law, has been hailed by some as “the greatest work of American legal scholarship,” though others have sharply disagreed. His Lochner opinion has been called “the greatest dissent of all time”—mistakenly, a good number of people would insist. There is greater agreement, however, about the superlative quality of his Buck v. Bell opinion. One critic spoke for a vast consensus in saying it “could represent the highest ratio of injustice per word ever signed on to by eight Supreme Court Justices.”

  • • •

  Holmes’s opinion was a mere five paragraphs in length, and there can be no doubt that he devoted far less thought to it than the subject deserved. The opinion began the way most judicial opinions do: with a brisk recitation of the facts. If Holmes’s statement of the facts was inadequate, it is not surprising given how he felt about facts in general.

  Holmes was the first to say that facts did not interest him. He did not read newspapers, which he considered to be “wasting time.” Holmes also boasted of not caring about details. “I never know any facts about anything,” he told an English friend, “and always am gravelled when your countrymen ask some informal intelligent question about our institutions or the state of politics or anything else.” Holmes’s “intellectual furniture” consisted, he said, of “an assortment of general propositions which grow fewer and more general as I grow older.”

  Holmes’s summary of the facts of the case was consistent with this lack of interest. It was brief, and he relied on the information presented at the trial—where Whitehead had not put on any facts to help Carrie’s cause—and on the Virginia sterilization law itself. On some key points, he simply made things up, or rounded out the actual facts with his own “assortment of general propositions.”

  Holmes began by stating flatly that Carrie and Emma were “feeble minded” and that Vivian was an “illegitimate feeble minded child.” If he had been more skeptical, and more willing to probe the factual record, he could have raised questions about the designation of Carrie and Emma, based as it was on the Binet-Simon test. Holmes’s good friend Walter Lippmann, writing in his beloved New Republic, had explained that the number of people intelligence tests were labeling as mentally deficient was “silly,” and warned that they were being misused by “muddleheaded and prejudiced men.”

  Even if Holmes was inclined to accept that Carrie and Emma were “feeble minded,” there was nothing in the record to support his claim in the opinion that Vivian was “feeble minded.” Caroline Wilhelm had said she was “not quite a normal baby,” and Estabrook had testified that she was “below the average for a child of eight months of age.” Both of these assessments were quite different from a diagnosis of being “feeble minded.” The mislabeling of Vivian was no small error on Holmes’s part, given Taft’s statement that the “strength of the facts in three generations” was “of course” the case’s “strongest argument.”

  Holmes’s description of the sterilization procedure showed a similar lack of interest in facts. He simply repeated the benign assessment contained in the Virginia statute—the very statute whose constitutionality the court had to resolve—without any skepticism. Salpingectomy was, he reported, a procedure “without serious pain or substantial danger to life.” It was an excessively generous description of an operation that would require Carrie to spend an hour under the knife, and two weeks in recuperation, while hospital staff regularly changed the dressing on her incision.

  Continuing to rely on the Virginia law, Holmes described the subjects of sterilization as people who “if now discharged would become a menace but if incapable of procreating might be discharged with safety and become self-supporting with benefit to themselves and to society.” The first part of the description—which indi
cated that the feebleminded were a “menace”—did not take into account the growing body of scientific evidence suggesting that people with mental defects did not pose a threat. The second part, particularly the claim that sterilization provided a “benefit” to its subjects, failed to consider its serious detriments, especially for someone like Carrie, who strongly wanted to have children.

  Holmes also accepted the sterilization law’s view of heredity. “Experience has shown that heredity plays an important part in the transmission of insanity, imbecility, &c,” he wrote. It was a remarkably shallow account of one of the key points in the case: whether sterilization would actually reduce the number of mentally defective people to any significant degree. Holmes made no reference to the growing skepticism from scientists like Fernald, Goddard, and East about the eugenicists’ assumptions. Whitehead had, of course, given the court no skeptical science to work with, either at trial or in his briefs. The court could, however, have introduced some of it into the discussion on its own.

  Holmes similarly presented the procedural facts of the case in a way that was unduly favorable to the colony. He talked of how under the Virginia statute the inmate was given notice of the time and place of the sterilization hearing, the right to attend, and a right of appeal to the local circuit court. Holmes ignored the more problematic realities of this particular case, such as the fact that at trial Carrie’s lawyer and guardian did not put on any witnesses or facts for her side.

  Next, Holmes moved on to the substantive legal issues. In this part of the opinion, his rhetoric and style were striking—one critic has rightly referred to its “alarming tone.” Rather than assessing the constitutional and statutory issues in the neutral, legalistic way the court generally did, Holmes delivered an urgent warning to the nation. The Virginia statute was necessary, he insisted, “to prevent our being swamped with incompetence.”