by Adam Cohen
Aubrey Strode was the lawyer who drafted the Virginia sterilization law, and he went on to defend it all the way to the United States Supreme Court. Unlike Dr. Priddy and Laughlin, Strode was not a pro-eugenics ideologue. He was, rather, a lawyer whose job it was to represent people who believed deeply in eugenic sterilization—and he was more than willing to advocate for his clients’ position.
The legal profession provided critical support to the eugenics movement. Some of the nation’s leading lawyers endorsed the cause, including, early on, the president of the American Bar Association, who declared eugenic marriage laws necessary to protect “future generations from the evil operation of the laws of heredity.” The Municipal Court of Chicago, a national leader in law reform, conducted eugenics research and underwrote Laughlin’s sterilization treatise. The eugenic sterilization movement was fundamentally a legal undertaking, and lawyers like Strode were an integral part of it.
Finally, it was the great Oliver Wendell Holmes who had the last word on Carrie’s fate, and who—with his broadside against society’s “imbeciles”—lent his enormous intellectual prestige to the sterilization cause. Holmes had long been a supporter of eugenics, and he had suggested years earlier that the best route to societal reform lay in “taking in hand life and trying to build a race.” Holmes was not a man who easily found enjoyment, but he would later say that upholding Virginia’s eugenic sterilization law and Carrie’s sterilization had given him real pleasure.
Of all of the professions, the judiciary played the most disappointing role. Not all of the judges of that era were pro-eugenics. Indeed, over the years, courts around the country had struck down state eugenic sterilization laws. But America’s courts are hierarchically ordered, and when the issue reached the nation’s highest court, the legal analysis was shoddy, and the vote was not close. The institution established by the Founders to protect the American people from injustice became injustice’s loudest cheerleader.
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When legal scholars rank the Supreme Court’s worst decisions, the competition is considerable. Throughout its history, the court has often—critics would say predictably—been on the wrong side of justice. Before the Civil War, when Dred Scott, an enslaved man transported to parts of the country where slavery was illegal, sued for his freedom, the court ruled that as a “negro whose ancestors were imported into this country and sold as slaves,” he had no right to sue in federal court. In the Jim Crow era, when Homer Plessy, a man of mixed race, challenged a Louisiana law under which he had been forcibly removed from a “whites only” railway car, the court rejected his complaint and upheld legally enforced racial segregation.
During World War II, when Fred Korematsu contested an order that all Japanese Americans report to internment camps, the court ruled that the nation’s need to protect itself outweighed the civil liberties of Americans of Japanese descent. And midway through the modern gay rights era, when Michael Hardwick challenged a Georgia law that made it illegal for him to have sex with a man in his own home, the court upheld the law and insisted that one of Hardwick’s most important constitutional claims was “at best, facetious.”
Of course, the Supreme Court does not always side with injustice or with society’s most powerful sectors. It ordered the South to end racial segregation and recognized the right of same-sex couples to marry. And it has corrected some of its worst mistakes: it reversed the ruling against Plessy after fifty-eight years, and against Hardwick after seventeen. Overall, however, its record is so deficient that a prominent law school dean recently concluded, “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.” He made the observation after more than thirty years of teaching constitutional law in a book he called The Case Against the Supreme Court.
There will always be differences of opinion over which rulings should be on a list of worst decisions, and how they should be ranked. But there can be no doubt that Buck v. Bell must have a prominent place. In its aftermath, not only was Carrie Buck sterilized against her will, but states across the country sterilized another sixty to seventy thousand Americans. Many of the victims were, like Carrie, perfectly normal both mentally and physically—and they desperately wanted to have children.
The reach of Buck v. Bell extended beyond the United States. The Nazi Party, which was on the rise in Germany, used America as a model for its own eugenic sterilization program. The Supreme Court’s ruling influenced the Erbgesundheitsgerichte, the Hereditary Health Courts that decided who should be forcibly sterilized. And at the Nuremberg trials that followed World War II, Nazis who had carried out 375,000 forced eugenic sterilizations cited Buck v. Bell in defense of their actions.
While many of the court’s worst decisions are now central parts of American history, Buck v. Bell is little remembered today. Even in constitutional law courses, it is rarely discussed or is mentioned only in passing. The second edition of American Constitutional Law, by the Harvard law professor Laurence Tribe, which weighed in at 1,778 pages, devoted just half a sentence and a footnote to the case. A recent 953-page biography of Brandeis, written by another respected law professor and hailed by some critics as “definitive,” did not try to explain why the legendary progressive joined the Buck v. Bell majority; it relegated the case to a single sentence in a footnote.
Many of those who would airbrush Buck v. Bell from history offer a simple explanation: it is an anomaly. The Supreme Court, they argue, was briefly caught up in eugenics, but it was a short-lived, onetime mistake. Today there are rights that did not exist in 1927—including rights of liberty and privacy—that would produce a different outcome. The ruling can be dismissed in half a sentence, the argument goes, because it is outside the sweep of American constitutional law, and the issues it raises are ones the nation long ago put behind it.
This rationale for consigning Buck v. Bell to the dustbin of history has serious flaws. The first is that there is nothing outdated about the case’s subject matter. Oregon ordered its last forced sterilization in 1981, and up until 1983 its Board of Eugenics was still functioning, though it had been renamed the Board of Social Protection. In 2013 investigative reporters discovered that nearly 150 female prisoners in California had been sterilized between 2006 and 2010, not always with the women’s consent.
More broadly, the twenty-first century is being hailed as “the Century of Biology,” an era that experts say will be defined by “the new biology of genome research,” with a vastly deeper understanding of the genetic blueprint for individual humans. Questions at the intersection of genetics and law—including to what degree the state and private actors should be able to use people’s genetic markers against them—will become more common and more complex.
Another reason Buck v. Bell cannot be left in the past is that unlike so many of the Supreme Court’s worst rulings it has never been overturned. In a later case, the court struck down an Oklahoma law providing for sterilization of certain criminals, but it did so because of its objection to the definition of which crimes would lead to sterilization. The court did not overturn or even limit Buck v. Bell, and after the ruling, states continued to sterilize thousands of people. In the twenty-first century, federal courts are still ruling that the government has the right to forcibly sterilize—and citing Buck v. Bell.
Finally, Buck v. Bell remains critically important because its deepest subject is a timeless one: power, and how those who have it use it against those who do not. Carrie was at the bottom of the nation’s economic and social hierarchies. In her plea to the court, she was asking for protection from powerful people and institutions that threatened to do her harm. Throughout the history of American law, that position has not been a good one to be in.
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The Code of Hammurabi is one of the world’s great legal artifacts. When French archaeologists discovered it in 1901, they learned that ancient Babylonia had a strikingly sop
histicated legal system. The code, which was carved onto a black stone slab, included 282 distinct laws covering such modern-seeming doctrines as liability for negligent acts and the presumption of innocence. As significant as these individual rules was the code’s eloquent statement of its own purpose, contained in the preface: “to bring about the rule of righteousness in the land . . . so that the strong should not harm the weak.”
That simple ideal remains, more than 3,500 years later, the law’s highest calling. It is a vision that the American legal system has failed to live up to all too often. Dred Scott, Homer Plessy, Fred Korematsu, and Michael Hardwick were all weaker parties unjustly harmed by stronger ones, who came to the Supreme Court seeking justice. In each case, the court sided with the strong.
In fact, a tendency to favor the powerful could be said to be one of American law’s defining features. Legal historians note that American courts have had this predisposition since the nation’s earliest days—and even before. In the Massachusetts Bay Colony, judges were willing to try people for witchcraft, but their enthusiasm waned when accusations began to be made against prominent members of society, including the president of Harvard College. In modern times, there has been no shortage of cases in which the rich and well connected wrongly escaped unscathed, or in which the poor and weak were crushed.
Legal sociologists explain that the justice system systematically favors the strong over the weak. The rich and powerful are less likely, all other things being equal, to be arrested, convicted, or imprisoned. The poor are, holding everything else constant, more likely to be incarcerated, institutionalized, and sterilized. The legal theorist Donald Black explains that American law is a great respecter of hierarchy—and that it operates most harshly on those at the bottom. “Law of every kind,” he says, “is more likely to have a downward direction than an upward direction.”
There is a great deal about Buck v. Bell that is troubling. The Supreme Court got the most basic facts about Carrie Buck and her family wrong, and relying on those errors it allowed a terrible injury to be done to her. The court exhibited a shockingly narrow conception of individual rights. It gave its unqualified endorsement to a cruel procedure. And when a young woman came seeking to be protected from an immense wrong, the court showered her with insults and allowed her to be harmed.
In the end, however, what is most disturbing is the worldview the court revealed. Buck v. Bell presented the court with a stark choice between Hammurabi’s ideal and its precise opposite. The ancient principle of justice teaches that the purpose of law is to ensure that the strong do not harm the weak. The state of Virginia, and the eugenicists who were in league with it, insisted that the strong must harm the weak—and that it was the law’s duty to help.
Faced with this choice, the Supreme Court did not merely side with the strong: it enthusiastically urged them on by insisting it would be “better for all the world” if society’s strongest members simply finished off people like Carrie once and for all. Even the ancient Babylonians understood that helping the strong to obliterate the weak is antithetical to the purpose of law—and no way to bring about the rule of righteousness in the land.
One
Carrie Buck
In early 1924 Carrie Buck, a dark-haired seventeen-year-old girl with a tomboy spirit, was living with a foster family in downtown Charlottesville, Virginia. John Dobbs, an officer of the peace, and his wife, Alice, had taken Carrie in as a toddler, from a single mother who had fallen on hard times. The situation seemed to offer Carrie the chance to grow up in a well-off, loving family, but that was not to be. In her years of living in the Dobbses’ tidy home on Grove Street, Carrie had been less a daughter than a housemaid. She would later recall the “endless work” and “servants’ chores”—and a wistful feeling of “never being a family member.”
John and Alice Dobbs liked to tell people they had taken Carrie in as an “act of kindness.” If that had been their initial motivation, the wellspring of goodwill had long since been depleted. Carrie had always fit in well with the household, and had been working harder than ever since her foster parents decided to take her out of school. Recently, however, there had been trouble. The Dobbses said they could no longer care for their young charge, and they had decided it was time for her to leave.
John Dobbs made an appointment with Mary Duke, the secretary of public welfare, whose job involved helping Charlottesville’s less fortunate—and helping the city’s better-off residents deal with the problems they posed. At their meeting, Dobbs confided the real problem in his household: Carrie had become pregnant out of wedlock. The Dobbses wanted help in sending her away to an institution. When Duke learned who the young woman was, she was predisposed to believe the worst. She had never met Carrie, but she had encountered her mother, Emma, while doing charitable work around town. Emma Buck, Duke had decided, was “of bad character.”
Duke went to talk with Alice Dobbs to learn more. Mrs. Dobbs said she and her husband had done everything in their power to help Carrie. They sent her to church and Sunday school, but despite the instruction she had received, she could not be trusted to lead a moral life. Mrs. Dobbs told Duke she had left Carrie home alone a few days the previous summer, but Carrie had not behaved herself—and the result was her pregnancy.
Under Duke’s guidance, the Dobbses began the formal process of having Carrie sent away. They did not try to place her in a home for unwed mothers. Instead, they petitioned Charlottesville’s Juvenile and Domestic Relations Court to have Carrie, “a white female child of the age of seventeen years,” declared feebleminded and epileptic. They told the court they could no longer have her in their home, and asked that she be committed to the Virginia Colony for Epileptics and Feeble-Minded.
The term “feebleminded” was widely used at the time but only vaguely defined. There was no precise medical description. A catchall term that covered a wide range of purported deficiencies, it might mean that a person was of low intelligence, or that he or she behaved in ways that offended the middle-class sensibilities of doctors, judges, or social workers. In the case of young women, it often meant exhibiting what was regarded as an excessive or inappropriate interest in sex.
In most cases, it did not take much evidence to have someone declared feebleminded and locked up—and so it was with the charges against Carrie. The Dobbses had no proof she was mentally deficient, and her grades from school, for as long as she had been allowed to attend, showed no lack of intelligence. Nor were there any medical records to support the claim that Carrie was epileptic—because she was not. The Dobbses’ petition was set down for an inquisition on January 23 before a Commission of Feeblemindedness. The commission, made up of a judge and two physicians, would take evidence and then decide Carrie’s fate.
With her foster parents and the Charlottesville Department of Public Welfare aligned against her, Carrie would be on her own. Even though she was just seventeen and had limited education, there were no provisions for assigning her a lawyer or a guardian to look out for her interests. As a result, there would be no one at the hearing to argue that she was neither feebleminded nor epileptic. Nor would there be anyone to bring up the hidden facts the Dobbses did not want mentioned—such as just how it was that Carrie had come to be pregnant.
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Carrie Elizabeth Buck was born in Charlottesville on July 2, 1906. Charlottesville was the seat of Albemarle County, a rural county in west-central Virginia that had some of the state’s best farmland, nourished by the Rivanna and James Rivers. Lying some 125 miles northwest of Jamestown, the first permanent English outpost in America, Albemarle County was settled early on by explorers who saw a bright future in its lush landscape.
The English who arrived in the 1600s found that the region’s rich soil was particularly well suited to growing tobacco, which soon became the staple crop for exporting back to England. Other crops were no less successful: hemp, also for export; wheat, barley, and rye to s
ell locally; and the Albemarle pippin, which would become Queen Victoria’s favorite apple. In a letter back home, one gratified settler described land “so rich and so fertile that when a man has fifty acres of ground, two men-servants, a maid and some cattle, neither he nor his wife do anything but visit among their neighbors.”
Plantations soon arose on the region’s lucrative soil, carved out of the land of the Saponi Indians and other tribes, and built on the backs of enslaved Africans and their descendants. The plantations, in turn, gave rise to an affluent and well-educated agricultural elite. The Virginia planters in the region around Charlottesville were in the forefront of agricultural science, military affairs, and, above all, politics, forming a significant part of the intellectual leadership of the emerging American Republic.
The land produced great statesmen as readily as it did fine tobacco. Thomas Jefferson, the principal drafter of the Declaration of Independence, was born in the area and lived on Monticello, a five-thousand-acre plantation outside of Charlottesville. James Madison, the primary architect of the U.S. Constitution, was the master of Montpelier plantation, twenty-five miles north of Charlottesville. They and James Monroe—who lived on Highland plantation, near Monticello—would become three of the new nation’s first five presidents.
The Virginia planters created something else that endured: the University of Virginia, known as “Mr. Jefferson’s University.” Jefferson founded the school in 1819, after retiring from public life. He designed its legendary campus, which a poll of leading architects and critics would one day call “the proudest achievement in American architecture.” When Jefferson was a student at the College of William & Mary, he had chafed at the role of religion and the clergy. Jefferson resolved to infuse his new university with the spirit of the European Enlightenment—one not “afraid to follow truth wherever it may lead.”