June 23, 2011 5:03PM

One Generation of Oliver Wendell Holmes, Jr. Is Enough

Today, the Charlotte Observer reports on the ongoing attempts to find restitution for the 3,000 living North Carolinians who were victims of the state’s forced sterilization program. It may surprise many readers, but forced sterilization has a long and shameful history in the United States. In North Carolina, the last forced sterilization was performed as late as 1974.

The most famous case of forced sterilization was the 1927 Supreme Court case of Buck v. Bell. Carrie Buck, a “feeble minded” woman from Virginia who was deemed the “probable potential parent of socially inadequate offspring,” challenged the state’s attempt to forcibly sterilize her. In an opinion that even his colleagues called “brutal,” Justice Oliver Wendell Holmes, Jr. curtly did away with Buck’s pleas, ramming home his decision with one of the most heartless and ignominious lines in all of the Supreme Court history:

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.

Amazingly, Justice Holmes’s original draft of the opinion contained worse language. He later wrote to Harold Laski that he was “amused” that his fellow justices suggested rhetorical changes when he “purposely used short and rather brutal words… that made them mad.” Nevertheless, despite his desire to use crueler language, Justice Holmes was satisfied with himself, once telling a friend, “One decision that I wrote gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles.”

It has continually fascinated me that Buck v. Bell seems to be rarely found on the short list of worst Supreme Court decisions. Dred Scott, Plessy v. Ferguson, and Korematsu (the case upholding the internment of Japanese-Americans during WWII) are nearly household terms used to describe the height of Supreme Court folly. But if Buck is among the rogue’s gallery of Supreme Court opinions, it certainly isn’t higher than Lochner v. New York. The term most often used to describe Supreme Court error is to “Lochnerize.”

As Cato adjunct scholar David E. Bernstein explains in his wonderful new book Rehabilitating Lochner (co-published by Cato and the University of Chicago), Lochner v. New York is hardly an instance of blatant judicial senselessness. It is likely that the law overturned in Lochner, which limited bakers to working 10 hours a day or 60 hours per week, was partially the result of large, automated bakers trying to protect themselves against small, family-run bakeries. But in his famous dissent in Lochner, Justice Holmes accuses the majority of trying to enact their preferences for laissez-faire capitalism rather than understanding that a justice’s “agreement or disagreement [with the law] has nothing to do with the right of a majority to embody their opinions in law.”

While Justice Holmes seems to have taken his deference to unlimited majoritarianism to new heights in Buck v. Bell, he actually endorsed eugenics as a policy. Holmes once wrote Laski that, when he delivered the opinion in Buck, he felt he was “getting near the first principle of real reform.” It seems Holmes was the one trying to embody his opinions into law.

And whereas recent historical examinations of Lochner have done much to rehabilitate that infamous case, Buck v. Bell just keeps getting worse as historians learn more. Paul Lombardo has spent decades on the case, publishing “Three Generations, No Imbeciles: New Light on Buck v. Bell” in 1985, and most recently giving his research a book-length treatment in Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Lombardo has discovered that Buck’s prosecution was the result of a collusive attempt to validate Virginia’s sterilization law. Her lawyer not only endorsed the law, but he mounted a deliberately insufficient defense.

Perhaps worst of all, Carrie Buck was not an imbecile. Both she and her mother were deemed “social undesirables” due to a perception of promiscuity which, in Carrie’s case, partially resulted from an illegitimate child who was the product of incestuous rape. This was fairly typical. The linked article describes how “people as young as 10 in North Carolina were sterilized for not getting along with schoolmates, being promiscuous or running afoul of local social workers or doctors.”

In all, more than 60,000 people—including 7,600 in North Carolina—were forcibly sterilized in the United States in the name of “progress.” Progressives of the time lauded the decision in Buck. Individual rights, they firmly believed, should not be allowed to stand in the way of collective progress. Justice Brandeis called Buck an example of properly allowing states the freedom to “meet modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.”

We should not forget the tragic consequences of such thinking.  Hopefully those in North Carolina will receive some restitution for their plight—a plight that could have been avoided had Buck v. Bell been decided correctly.