by Adam Cohen
Even with these promising signs for the eugenicists, there were also gathering clouds. Despite the recent wins in Virginia and Michigan, the vast majority of court rulings had been hostile to their cause. Judges in New Jersey, Iowa, Oregon, New York, Nevada, and Indiana had struck down eugenic sterilization laws.
The judges in these cases had not only found constitutional infirmities in the laws. In some cases, they had been outspoken about their abhorrence for the whole idea of sterilization. The federal court that struck down Iowa’s sterilization law had not merely pronounced it unconstitutional but also insisted that such “strange methods of repression” belong to “the Dark Ages.” The New Jersey Supreme Court had warned that the “feebleminded” were “not the only persons” the legislature might seek to eliminate as “undesirable citizens.”
The eugenicists’ problems were not limited to the courts. Their movement, which had been gaining force during the Progressive Era, had begun to slow in the 1920s. Many of the societal elites that had been in the forefront of promoting eugenics and sterilization were beginning to express doubts.
Mental health experts, who had been among the biggest supporters of eugenics, had started to shift. Dr. Walter E. Fernald, who was arguably the nation’s leading expert on mental disability, had done an about-face. In 1912, he had called the feebleminded a “parasitic, predatory class” that posed “a menace and a danger.” At a 1919 meeting of the National Committee for Mental Hygiene, he recanted and said that he regretted saying “that the feebleminded were all of hereditary origin, that they were pretty much all vicious and depraved and immoral, that they were not capable of self-support.”
Even Henry Goddard, inventor of the hierarchy of “idiot,” “imbecile,” and “moron,” had come to disavow his views on feeblemindedness. After years of promoting the term “feebleminded,” Goddard was now objecting to this “unscientific and unsatisfactory word.” He had also begun to renounce reliance on the intelligence testing he was so closely associated with. To label people feebleminded for scoring low on exams like the Binet-Simon was, he now said, “an absurdity of the highest degree.” In just a couple of years, Goddard would declare that he had gone over “to the enemy.”
Geneticists, who had initially said little about eugenicists’ misuse of science, were also beginning to speak out. In a 1924 book preface, Edward M. East, a prominent Harvard genetics professor, took aim at eugenicists’ use of spurious science. Two years later, his Harvard colleague William E. Castle, who pioneered the use of the fruit fly in genetic research, wrote in Encyclopedia Britannica that much of the so-called scientific writing on eugenics “is probably of small value, since it is uncontrolled by experiment and is based largely on uncritical data.” By 1927, scientists had made great strides in destroying “the myths that mental retardation and shiftlessness and ‘laziness’ were in the genes.”
Scientists were not the only ones defecting from eugenics. The mass media, which had cheered the movement on at the outset, was increasingly raising questions. In 1922 Walter Lippmann, arguably the nation’s leading public intellectual, wrote a series in the New Republic eviscerating intelligence testing. Exams purporting to find that large percentages of the adult population were deficient, such as the U.S. Army test, were “silly,” Lippmann argued. They were producing false data that attracted “gross perversion by muddleheaded and prejudiced men,” he said.
National magazines were also publishing direct attacks on the eugenics movement. In 1926, the American Mercury printed an article by Clarence Darrow on eugenics—or “the eugenics cult,” as he called it. Darrow, who had attracted national headlines a year earlier for his role in the Scopes evolution trial, caustically sent up the eugenics movement and the “good old Mayflower stock” who were drawn to it. Of all “the schemes for remolding society,” Darrow wrote, eugenics was “the most senseless and impudent that has ever been put forward by irresponsible fanatics.”
Eugenics was now at a crossroads. In the decades since Francis Galton coined the word, it had become a global movement, with international conferences, national eugenics campaigns, and, in America, legally sanctioned eugenic sterilizations. The backlash, however, was growing where it mattered the most—in the United States, the worldwide leader in eugenics.
Buck v. Bell was likely to have an enormous impact. If the Supreme Court rejected Virginia’s eugenic sterilization law, it could sweep away state sterilization laws across the country and give enormous moral support to Darrow, Lippmann, East, Castle, and all the other people who were starting to challenge the eugenicists. If the Supreme Court upheld Virginia’s law—after all of the state courts that had struck down sterilization laws—it would completely change the legal landscape. It would also give the eugenicists one of the greatest imprimaturs American society can offer—and inject new life into a waning movement.
• • •
In advance of the Supreme Court oral argument, Irving Whitehead and Aubrey Strode submitted legal briefs. Once more, the quality of the advocacy was lopsided, something that was again evident just in the page counts. Strode submitted a forty-nine-page brief arguing that the Virginia Supreme Court of Appeals had decided the case correctly. Whitehead wrote only eighteen pages arguing that the Supreme Court should reverse the decision of two state courts and a state hospital board and declare Virginia’s eugenic sterilization law unconstitutional.
Whitehead’s brief to the Supreme Court was better than his brief to the Virginia Supreme Court of Appeals, but it was still woefully inadequate. As had been true of his work throughout the case, some of Whitehead’s advocacy was helpful to his client and some less so. He once again argued that the Virginia law violated the equal protection clause of the Fourteenth Amendment, the claim that had proven most successful so far in state courts. He did not do it with particular enthusiasm or skill, and he once again left out important precedents that could have been persuasive to the court.
Whitehead also argued that the sterilization order violated Carrie’s “inherent right of bodily integrity” as guaranteed by the Fourteenth Amendment’s due process clause. There was, he argued, a “right of mankind to go through life without mutilation of organs.” This was another worthy argument, which took Carrie’s case beyond the technicalities of who was covered by the law and into the substantive realm of whether eugenic sterilization was the sort of activity the government should be involved in at all.
Less helpful, the primary authority Whitehead cited for his due process argument was Munn v. Illinois, an 1877 commercial law case about the constitutionality of maximum rates for grain storage. Whitehead did not discuss Meyer v. Nebraska or Pierce v. Society of Sisters, the two recent cases in which the Supreme Court had begun to define an expansive conception of the right to liberty under the Fourteenth Amendment. In Meyer, just a few years earlier, the court had expressly included in the right of liberty the freedom “to marry, establish a home and bring up children.” It was a precedent worth citing prominently—if Whitehead was interested in winning his case.
The oddest part of Whiteside’s brief was a section on “Eugenic Laws and Regulations, Ancient and Modern,” which argued that “the idea of selective breeding is as old as recorded history.” Whitehead quoted a variety of classical sources that he said had endorsed eugenics, ranging from “The Twelve Tables of Rome” to Plato’s Republic. It was a puzzling decision to include this history because it had the effect of making sterilization appear to be not barbaric or outlandish, but rather an integral part of Western civilization.
Whitehead did not challenge any of the false evidence that was used against his client at the original trial, nor did he present any of the growing body of scientific opinion challenging the underlying assumptions of the eugenicists. It might have been difficult for him to introduce new evidence at the Supreme Court stage—the court generally limits itself to the factual record created in the courts below—but he still had an opportunity to present the
sort of expert opinion on eugenics that he failed to offer at trial.
Whitehead could have submitted a “Brandeis brief,” named after Louis Brandeis, one of the justices who would be hearing the case. When he was an acclaimed “people’s attorney,” Brandeis invented a model of legal brief that included more expert opinion and social science data than law. In Muller v. Oregon, a challenge to an Oregon law setting maximum hours for women workers, Brandeis submitted a brief defending the law that was 113 pages long—with only two pages of legal analysis. The rest of the brief was an argument about the effects of excessive work hours on women, drawn from sources as varied as the Maine Bureau of Industrial and Labor Statistics and the British House of Commons.
There was a powerful Brandeis brief to be written on Carrie’s behalf. It could have quoted extensively from experts who challenged the colony’s positions: Lippmann on how the intelligence testing used on Carrie and Emma was “silly,” Davenport on feeblemindedness being “a social term,” not a medical one, and East disassembling Laughlin’s and Estabrook’s claims about heredity. The brief could have challenged the colony’s claim that the sterilization was in Carrie’s interest by raising medical questions about the procedure and discussing the negative aspects of being rendered infertile. It would have been an opportunity for Whitehead to address many of the issues he did not bring up at trial—but he did not take it.
Whitehead ended his brief with a rhetorical flourish. In a final one-paragraph section on “Danger of Legislation of this Character,” he raised a dark specter of where laws like the Virginia statute would take the country: over time a “reign of doctors” would be established to add new categories of people for sterilization—perhaps “even races”—allowing for “the worst forms of tyranny.” It was a stirring ending to a less than compelling brief that logged in at a little more than one-third the length of the brief for the other side.
Strode’s brief for the Virginia state hospitals was much like the one he had submitted to the Virginia Supreme Court of Appeals. He presented the Supreme Court with an array of facts, taken from the trial in the Amherst Circuit Court, that helped to make the case for the sterilization law and the sterilization order. Strode wrote that Carrie had a mental age of nine, that Emma had a mental age of seven, and that Vivian had been “found to give evidences of defective mentality.”
Strode quoted extensively from the expert witnesses he had called at trial. He invoked Laughlin saying that Carrie appeared to be a low-grade moron and cited his opinion that, based on the “hereditary nature of the feeblemindedness” and her moral delinquency, she was a “potential parent of socially inadequate or defective offspring.” Strode also quoted Dr. Priddy, “Superintendent of the Colony, with twenty-one years of experience in this and similar institutions,” stating that he had “arrived at the conclusion” that Carrie was “a highly proper case for the benefit of the Sterilization Act.”
The main legal argument in Strode’s brief, as it was in his brief for the Virginia court, was that eugenic sterilization was the kind of act government had the right to engage in. Strode argued that eugenic sterilization fell squarely within the state’s “police power.” Once again, he relied on the 1905 Supreme Court ruling in Jacobson v. Massachusetts, the compulsory vaccination case, including two full pages of quotes from it in the brief.
Strode carefully constructed responses to each of the constitutional objections Whitehead raised. On equal protection, Strode repeated the “clearing house” argument he made in the Virginia Supreme Court of Appeals. He maintained that even though the law allowed only inmates of state hospitals to be sterilized, what was important was that any feebleminded person in the state could at some point be institutionalized and sterilized. The statute was “part of a general plan applicable to all feeble-minded.” On due process, Strode enumerated the protections that Virginia’s sterilization law provided and once again insisted that based on them “all the requirements of due process of law have been fully complied with.”
Strode included two more arguments he had made to the Virginia Supreme Court of Appeals. Once again, he made the audacious claim that because of Carrie’s youth, her father’s death, and her mother’s mental incapacity, the state should be allowed to decide whether she consented to sterilization. Strode repeated the line he used in the lower court: “Poor the Commonwealth in powers and helpless in authority,” he wrote, “if she be incompetent thus to act for her afflicted children.”
Strode also repeated his plea for judicial restraint. The question of “whether it is better that feeble-minded women be kept in custodial care of institutions” or that they instead be sterilized and released was a “legislative” not a “judicial” question, he argued. Strode told the Supreme Court in direct terms that it should let Virginia decide for itself whether to engage in eugenic sterilization. “The question before the Court is one of power only,” he wrote. “If it be found that the Legislature has the power to do what it has here done without running counter to clear constitutional prohibitions, the Court may only so declare and there the function of the Court ends.”
In his statement of the facts, Strode repeated one of the colony’s cruelest falsehoods. He explained that Carrie had “lived as a member of the household with a respectable family” who had “taken good care of her in return for the simple services she might render despite her affliction.” If she were no longer a risk to have more children, Strode told the court, that family “would be glad to have her back again.”
Strode was passing on what Dr. Priddy had testified at trial. This promise had special significance for Carrie because—although Strode’s brief did not mention it—Vivian was currently living in the Dobbs household. Any hopes Dr. Priddy and Strode might have raised in Carrie about returning to her old home and being reunited with her only child would later be crushed. Despite what Strode assured the Supreme Court, the Dobbses would not take her back.
• • •
The Supreme Court set the case down for oral arguments on April 22, 1927. The chief justice who would preside, William Howard Taft, was an unusual leader of the court. He had been born in suburban Cincinnati, a scion of the powerful Taft Republican political dynasty, and had been imbued with political ambition from an early age. Taft’s father had served as attorney general and secretary of war under President Ulysses S. Grant.
Taft attended Yale—where he was a member of Skull and Bones, the elite secret society his father helped found—and then returned home to Ohio. After graduating from the Cincinnati Law School, Taft was appointed to a local judgeship. President Benjamin Harrison named Taft solicitor general of the United States—the youngest in the nation’s history. Taft returned to Ohio when he was nominated to the U.S. Court of Appeals for the Sixth Circuit.
Taft, who once joked that he always had his “plate the right side up when offices were falling,” continued to be appointed to prominent positions. President William McKinley designated Taft chief civil administrator for the Philippines, and President Theodore Roosevelt named him secretary of war, his father’s former position. Roosevelt chose Taft to succeed him as president, and the Republican Party nominated him in 1908.
Taft was elected handily, but his one term as president was not an easy one. He found himself trapped between the progressive and conservative factions of his party. When Taft sided with conservatives on several key issues, including keeping tariffs high, progressive Republicans formed their own party, and Roosevelt was its standard-bearer in the 1912 election. With the Republican Party divided, Taft lost to the Democratic nominee, Woodrow Wilson. He retired to a professorship at Yale Law School.
In his years at Yale, Taft wrote about the law and promoted his favorite causes, including world peace. For his whole life, Taft had aspired to be chief justice of the United States. He held out hope that the man who defeated him, President Wilson, would appoint him to the Supreme Court. Taft was disappointed when Wilson passed him over repeat
edly—and, in particular, when Wilson nominated Louis Brandeis. In a letter to a friend, Taft decried the selection of Brandeis, whom he considered “unscrupulous” and a “muckraker,” as “one of the deepest wounds that I have had as an American and a lover of the Constitution.”
Taft finally achieved his lifelong ambition when Warren Harding reclaimed the White House for the Republicans. In May 1921, only months after Harding took office, Chief Justice Edward Douglass White died. Harding nominated Taft to succeed him. The New York Times would later say that chief justice was “an office which by both temperament and training he was better fitted to hold than that of President.”
Taft took to his new position with enthusiasm. As the Supreme Court’s chief administrator, he went to work right away modernizing its operations. He traveled to England to study the workings of the British court system—in particular, how judges there managed to dispose of unimportant cases so quickly. The Christian Science Monitor observed that “As many men strive for riches, Mr. Taft strove for a clear docket.”
When he returned home, Taft put his newfound knowledge to use. He was the driving force behind the Judiciary Act of 1925. The new law gave the court broad discretion over what cases it would hear, ending the days when 80 percent of its docket was made up of appeals that had to be accepted. It was a major change, which helped to usher in the modern era of the court.
As chief justice, Taft adhered to the same old-line conservatism he had espoused as president. He was concerned at first that Brandeis and Holmes might interfere with his ability to maintain a solid conservative, pro-business majority. Several new appointments that came soon after his own, however, reassured Taft he would have the votes to keep the court firmly on the side of property rights and other core conservative values. Not long after he joined the court, Taft wrote a strong pro-business opinion in Bailey v. Drexel Furniture Co., a decision that augured well for Taft’s conservative plans. The court struck down the Child Labor Tax Law, which Congress had imposed on companies that employed children. The ruling was 8–1, and both Holmes and Brandeis joined Taft in the majority.