by Adam Cohen
Strode included one especially audacious argument in his brief. He insisted that since Carrie was under age, her father was dead, and her mother was mentally incapacitated, the decision about whether she should be sterilized should be made by the State—by the very people lined up against her in the lawsuit. “Poor the Commonwealth in powers and helpless in authority,” Strode wrote, “if she be incompetent thus to act for her afflicted children.”
Strode’s final argument was about the role of the courts: he made a plea for judicial restraint. The question of the “expediency and wisdom” of permitting eugenic sterilization, he insisted, was a matter for the legislature alone. He urged that the court resist any impulse it might have to strike down the law. “We are not permitted to approach a legislative enactment with an adverse mind as to its constitutionality,” he wrote. “A large discretion is vested in the legislature to determine what the interests of the public require.”
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On November 12, 1925, the Virginia Supreme Court of Appeals affirmed the Amherst County Circuit Court’s decision. Justice Jesse West, writing for a unanimous court, ruled that the colony had the legal authority to sterilize Carrie. It rejected all of Whitehead’s constitutional objections, holding that Carrie had no rights that would be violated if she were sterilized.
The Virginia Supreme Court of Appeals, like all appellate courts, relied on the record developed at trial. As a result, it accepted as fact the entirety of the uncontroverted case the colony presented. The court stated that Carrie was feebleminded, with “the mind of a child nine years old.” Because Whitehead had made no attempt to challenge Laughlin’s claim that feeblemindedness was generally inherited, the court accepted that “by the laws of heredity” Carrie was “the probable potential parent of socially inadequate offspring.”
Accepting the colony’s description of the physical act of sterilization, the court stated that salpingectomies do not impair the health of the patient. It added that “in the hands of a skilled surgeon,” the operations “are 100 per cent successful in results.” It also asserted that the operation, “practically speaking, is harmless and 100 per cent safe”—an improbable percentage.
The court also accepted Strode’s claim that salpingectomy was in Carrie’s interest—something the statute required if the procedure was to be approved. If Carrie was not sterilized, the court said, she would have to remain at the colony for thirty years. With the operation, “she could be given her liberty” and released to a good home. The court’s reasoning was in conformity with Dr. Priddy’s testimony—left unrebutted by Whitehead—that inmates were better off being sterilized and freed, and in fact “clamored” to be sterilized.
On the constitutional questions, the Virginia Supreme Court of Appeals again accepted Strode’s analysis. The Virginia law did not violate due process because it contained procedural protections, including the right to appeal the colony’s order to a circuit court. In Carrie’s case, the “hearing was conducted strictly in accordance with the provisions of the statute,” the court said, and the statute “complies with the requirements of due process of law.” The court also rejected Whitehead’s equal protection challenge. It accepted Strode’s notion that the law did not discriminate against people who were inmates of state hospitals, even though they could be sterilized, and people just as feebleminded who were not institutionalized could not.
The court also insisted that the sterilization law was a proper exercise of the state’s police power. On this point, it accepted Strode’s analogy to the Supreme Court’s compulsory vaccination decision, Jacobson v. Massachusetts—or, more precisely, Laughlin’s analogy. The court said that, as with the requirement of vaccines during a smallpox outbreak, the sterilization law fell within the legislature’s prerogative to pass laws to “‘protect the public health and the public safety.’”
The Virginia ruling came just a few months after the Michigan Supreme Court upheld a state eugenic sterilization law, after having struck down a different one seven years earlier. For the eugenic sterilization movement, these were two important victories. Following a long string of losses in the courts, the Michigan and Virginia decisions lifted the spirits of sterilization advocates and increased their hope that they might prevail if these or any other sterilization cases made it to the United States Supreme Court.
After Virginia’s highest court issued its ruling, Strode and Whitehead attended a meeting of the colony’s Special Board of Directors on December 7, 1925. According to the official minutes, the two old friends together “outlined the present status of the sterilization test case” and “presented conclusive argument for its prosecution through the Supreme Court of the United States.” Strode and Whitehead told the board the case “was in admirable shape to go to the court” and said that the board “could not hope to have a more favorable situation than this one.”
Whitehead’s appearance before the board was, on one level, not unexpected. He had close ties to the colony, and had at one time been chairman of the same board he was now addressing. Nevertheless, it was highly unethical, given his representation of Carrie. At the precise moment when he should have been protesting the ruling upholding a sterilization order against his client, he was celebrating and strategizing with the very people who were trying to sterilize her. Instead of viewing the United States Supreme Court as the last chance to obtain justice for his client, his attendance at the board meeting suggested that he shared the hope of Strode and the colony that the court would uphold the Virginia statute and the sterilization order.
Whitehead’s representation of Carrie at the trial and on appeal was an extraordinary case of malfeasance. Not only did he violate well-established ethical rules about the duty of loyalty to a client—which would, for example, have prohibited him from helping the opposing side plan its appellate strategy—but his entire representation of Carrie, in a case of enormous importance to her, was a fraud. To advance the interests of the colony, an institution to which he had close personal ties, Whitehead played the role of Carrie’s lawyer and fooled her into believing he was protecting her interests. He was an impostor.
In some ways, though, Strode’s betrayal was even greater. He was not simply a litigator for hire but one of Virginia’s most eminent lawyers. He was the scion of two of Virginia’s oldest families, in a time and place in which that carried enormous weight. He was a distinguished graduate of both the college and law school of the University of Virginia, Mr. Jefferson’s great institution of enlightenment. He was also both the son of a college president and an educator himself. And as a member of the Virginia legislature, Strode had been one of the state’s most progressive voices for the past two decades. He had fought for higher education for women and better schools for poor children—white ones, at least. In his later years, he would continue a life of service by becoming a judge.
Strode was just the sort of lawyer who should have understood implicitly that what was being done to Carrie was wrong, and he should not have gone along with it. He must have known that Carrie was not aware of what was at stake in the proceedings, yet he phrased his own question to her at trial in a way that kept her in ignorance. As a pillar of the Virginia bar, he should have found it intolerable that the lawyer who represented Carrie at trial in the circuit court, on a matter of great importance to her, did not call a single witness or present any evidence. And when that same lawyer joined Strode in briefing his client, making clear that his loyalties were not with his own client, Strode’s inherent sense of justice should have been offended. Strode, however, went along with it all.
Dr. Priddy, Dr. DeJarnette, Dr. Bell, and Laughlin were eugenics true believers, intent on doing everything in their power to begin a program of mass sterilization. Strode, however, was different. He never sought out the sterilization cause on his own—not as a legislator and not as a lawyer—and when his clients brought it to him, he counseled them either not to act or to act slowly, and he drafted
a far narrower law than the eugenicists wanted. He seemed to be drawn to eugenic sterilization out of a commitment to serve his clients—or perhaps just as paid legal work.
If anyone was in a position to try to bring it all to a stop—to say that eugenic sterilization was wrong, and that the way the legal system was treating Carrie was wrong—it was Strode. At the very least, he could have been a conscientious objector, and said he would not be part of the case if this was how it was going to proceed. He could have, but he did not. What he did continue to do, however, was what he had done all along: urge the most impassioned eugenic sterilization advocates to slow down.
When the Virginia Supreme Court of Appeals upheld the sterilization law, there were calls for eugenic sterilizations to begin right away, and they were coming from the top. “I notice from the paper the Sterilization Law has been declared constitutional by the Supreme Court,” Governor Elbert Lee Trinkle wrote in a letter to the state hospital superintendents. “I do hope you people will get busy and use the law as fast as it can be used and help us get rid of our overcrowded conditions.”
The State Hospital Board asked Strode if eugenic sterilizations could now be performed, but Strode still insisted it was too soon. He advised the board that the case raised federal constitutional questions that only the United States Supreme Court could resolve definitively. On Strode’s advice, the hospitals held off and waited for Carrie’s guardian to appeal the ruling, something they knew he intended to do.
Robert Shelton filed the necessary papers with the United States Supreme Court. By doing so, he was not only carrying out Strode’s plan of seeking a ruling from the “highest court” before the Virginia state hospitals began sterilizations, but also creating the possibility of a landmark ruling on eugenic sterilization. With the stroke of a pen, the Supreme Court could resolve years of litigation over state sterilization laws and settle a contentious legal controversy for the entire nation.
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By taking the case to the Supreme Court, Shelton was also, unwittingly, doing something else: putting his client on a collision course with a man whose life could hardly have been more different from her own. She was young and barely educated. He had reached a venerable age, and was among the nation’s most acclaimed thinkers. She came from the bottom of the South’s social hierarchy and from a family that had struggled for generations. He had been born into the highest caste in the North, with centuries of prominent and accomplished ancestors.
Most important, she was in a position of extreme weakness, a poor and unsophisticated inmate of a colony for the feebleminded, with a court order of sterilization against her. He was the highly respected intellectual leader of the most important court in the world. Unfortunately for Carrie, he was also someone who had, as he himself cheerfully admitted, dedicated his entire life to making himself the “supple tool of power.”
Eight
Oliver Wendell Holmes
In the spring of 1927, eighty-six-year-old Oliver Wendell Holmes Jr. was the leading figure in American law. Holmes was regarded not only as a Supreme Court justice of profound wisdom but as a man of transcendent nobility. The praise that has been showered on Holmes knows few bounds. Charles Wyzanski, a prominent federal judge in Boston, declared that “like the Winged Victory of Samothrace,” Holmes was “the summit of hundreds of years of civilization, the inspiration of ages yet to come.” Felix Frankfurter, the Harvard law professor who later became a Supreme Court justice, pronounced Holmes the modern embodiment of Plato’s ideal of the “philosopher become King.”
Holmes was celebrated for his judicial rulings, the most famous of which were stirring defenses of civil liberties and individual freedom. He was admired not only for his legal views but also for the lyrical way in which he expressed himself. Holmes had a gift for epigrams, such as his contention that “the life of the law has not been logic: it has been experience.” He also had a rare ability to reduce complex principles to simple truths, like his famous assertion that the “most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre.”
Holmes’s reputation derived from more than his jurisprudential accomplishments, notable as those were. It was a product, above all, of biography. Holmes was a Boston Brahmin—a member of America’s most rarefied social caste. To that august lineage, he added adventure and valor, having enlisted as a young man to fight in the Civil War and having been wounded three times in battle. Holmes was also handsome in a distinctive way, with a robust mustache and unruly gray hair that suggested both wisdom and a kind of all-American reasonableness. At this stage in his life, he had one more virtue: an enviable longevity, at a time when life spans were short. Holmes was not so much a judge, one writer observed, as a “favorite of the gods.”
The Holmes cult of personality reached beyond the legal world. On the occasion of his eighty-fifth birthday, a year earlier, he had been featured on the cover of Time magazine. On his ninetieth, he would be celebrated in a national radio broadcast. After his death, Holmes would be brought back to life as the subject of a long-running Broadway play, The Magnificent Yankee, later made into a Hollywood movie. The title of a bestselling biography of Holmes years later would capture his immortal reputation: Yankee from Olympus.
Given his status as a living monument to American justice, it would seem that Carrie Buck could hardly have done better than to have her fate placed in Holmes’s hands. What she could hardly have known—few Americans did—was just how wide the chasm was between Holmes the legend and Holmes the man. The mythical Holmes was a creation for mass consumption, a careful admixture of rigorous legal logic, progressive values, sympathy for the underdog, and generosity of spirit. This Holmes would have understood on a deep level the overwhelming injustice of allowing the state to take away a young woman’s ability to bear children in the service of a misguided ideology.
The true Holmes, however, was a far darker force. He was not a progressive, despite what all the admiring magazine articles said. One critic has bemoaned the “cherished American myth . . . that Oliver Wendell Holmes was a ‘liberal,’” calling it as “baseless as the tale of Washington and the cherry tree.”
In Holmes’s view, life was naturally competitive and cruel, and he had little inclination to rein in its harsh injustices. H. L. Mencken, the acerbic journalist and editor, said Holmes was at heart not a jurist but a soldier, with a “natural distaste and contempt for civilians” and a “corollary yearning to heave them all into Hell.” The Yale law professor who was commissioned to write Holmes’s official biography was only slightly less hyperbolic, declaring after he abandoned the project that he had found “the real Holmes” to have been “savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.” Anyone who knew Holmes only from his public persona would not have guessed the truth: that he could only regard a claim such as Carrie’s with active contempt.
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Oliver Wendell Holmes Jr. was born on March 8, 1841, into the highest stratum of Boston society. Although it was only the nation’s fifth largest city, with a population of less than one hundred thousand, Boston was widely considered to be the nation’s literary, educational, and philosophical capital. It was also, at the time of Holmes’s birth, in the midst of a great intellectual flowering.
In 1841 Ralph Waldo Emerson published Essays: First Series, which contained some of his most important writings, including “Self-Reliance” and “The Over-Soul.” In religion, the Reverend Theodore Parker delivered “A Discourse on the Transient and Permanent in Christianity,” his famous sermon challenging New England’s religious orthodoxy. And Margaret Fuller was in her second year as editor of the Dial, the influential new voice of transcendentalism.
These intellectual pioneers were not merely a collection of talented individuals. They were all memb
ers of the same social class: the Boston Brahmins. Holmes’s father, Dr. Oliver Wendell Holmes Sr., had coined the phrase “Boston Brahmins,” and in the book in which he did, he described them as “an aristocracy, if you choose to call it so . . . a caste,—not in any odious sense,—but, by the repetition of the same influences, generation after generation.” The Boston Brahmins were a tightly connected group of elite families. “Quincys, Cabots, Lodges, Lees, Lowells, Curtises, Higginsons, and Holmeses banded together,” the historian Liva Baker observed. “They lived in the same neighborhoods, went to the same schools, read the same books, shared the same ignorances as well as knowledge, belonged to the same clubs, dined at the same houses, donated to the same charities, and married their cousins.” They also promoted one another in business, nonprofit organizations, and government. It was a supremely influential network that Holmes would avail himself of throughout his career.
The Brahmins were not ostentatious about their wealth and privilege—an ethic of Puritan reserve prevailed. But they had an unmistakable air of superiority, which a famous Boston poem pointedly mocked:
And this is good old Boston
The home of the bean and the cod,
Where the Lowells talk only to Cabots,
And the Cabots talk only to God.
On her first visit in the 1830s, the British sociologist Harriet Martineau was struck by the smug self-satisfaction of Boston’s elites, declaring it “perhaps as aristocratic, vain, and vulgar a city, as described by its own ‘first people,’ as any in the world.” Holmes’s father contributed to this perception of Boston as a place of supreme self-importance when he drolly dubbed Boston’s statehouse the “hub of the solar system,” a phrase his fellow Bostonians converted to “hub of the universe” and turned into the city’s unofficial motto.