Imbeciles

by Adam Cohen

  Holmes presented a dark vision of what would happen if sterilization laws were struck down, and the “incompetent” were allowed to reproduce. He declared, in one of the opinion’s most notable passages: “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.”

  Holmes’s lofty rhetoric far exceeded the evidence in the record. There had been no support at trial for the claim that the feebleminded were likely to have children who committed crimes so serious they would have to be “executed.” In fact, criminologists like Clark University’s Carl Murchison were challenging the connection between criminals and mental defect. Nor was there any evidence that the feebleminded were in danger of starving, as Holmes said—or that any of the thousands, or millions, of feebleminded the eugenicists claimed were in the population actually were starving.

  Holmes’s fevered words reached their apex in the opinion’s best-known sentence: “Three generations of imbeciles are enough.” Holmes’s aphorism is one of the most notorious statements to appear in a Supreme Court opinion. It was, on the simplest level, the sort of cruel insult that has rarely, if ever, been delivered by a majority of the court—even in cases involving the most cold-blooded of criminals. More profoundly, it gave the Supreme Court’s endorsement to the very essence of the eugenic argument: that defective people must be stopped from reproducing, surgically if necessary, because otherwise their defects will be visited on the next generation—and forever plague the world.

  Holmes’s bold declaration that three generations of imbeciles were enough was one of his “general propositions” that broke down on closer inspection. To begin with, there were not “three generations” of imbeciles. On the record, Vivian was “not quite a normal baby,” according to Wilhelm, and “below the average” for an eight-month-old baby, according to Estabrook. Holmes made no effort to explain how those mild observations supported his claim that Vivian was an “imbecile,” a serious level of mental defect—or that she was feebleminded at all.

  Just as there were not “three generations,” there were also no “imbeciles.” The colony had recorded Carrie as having a mental age of nine and classified her as a “Middle grade Moron.” “Moron” was the highest of the three levels of mental defect, above “imbecile” and “idiot.” These categories were precise and official. The U.S. Department of Commerce included them in its official publication Feeble-Minded and Epileptics in State Institutions, stating expressly that anyone with a mental age between seven and twelve was a “moron,” while “imbeciles” had a mental age between three and seven. Holmes, however, casually downgraded Carrie from “moron” to “imbecile.”

  Carrie was not the only Buck woman Holmes downgraded. Emma had also tested as a moron, not an imbecile, at the colony. With Vivian, that made three Buck women described as more defective than the record supported. It might be said that Holmes was using “imbecile” for literary effect, simply because it sounded better than “moron.” In doing so, however, he handed the eugenics movement a false, but powerful, rallying cry.

  The third part of Holmes’s aphorism—“is enough”—was also untrue. With that phrasing, Holmes was asserting that mental defect was a directly inherited trait, and that sterilizing Carrie would bring it to a halt; however, this was not so. Feeblemindedness could not be defined with any precision, and it was not genetically determined in this way. There was also considerable doubt over whether even a large program of sterilization could appreciably affect the nation’s gene pool. Scientists had begun to turn decidedly against the eugenicists on all of these issues. But Holmes simply assumed that if Carrie was sterilized the line of imbecility could be stopped in this, the third generation.

  The most striking thing about Holmes’s “haughty epigram,” as it has been called, was not the factual errors but the disdain that dripped from it. Carrie was a living, breathing young woman who came to the highest court in the land hoping to vindicate her constitutional rights, and to stop the state from taking away her ability to have children. But to Holmes and the seven justices who signed on to his opinion, she was nothing more than one “imbecile” in a line of imbeciles, of whom, the court declared with exasperation, the nation had already had “enough.”

  A mean-spirited ethos permeated the whole opinion. Holmes’s language was every bit as harsh as the epithets hurled by the eugenics movement. He called the people being considered for sterilization “defectives” and “unfit,” and their potential offspring “inadequate” and “degenerate.”

  Holmes knew his language was crueler than some of the other justices were comfortable with. In a letter to Harold Laski, Holmes said he was “amused (between ourselves) at some of the rhetorical changes suggested” by his colleagues in his case about “the sterilizing of imbeciles.” He had, he said, “purposely used short and rather brutal words for an antithesis, polysyllables that made them mad.” Holmes had no patience with the justices who wanted to speak more kindly—or less insultingly—about people like Carrie and Emma. A “man must be allowed his own style,” Holmes insisted.

  Holmes’s legal analysis was just as disconcerting as his rhetoric. He began by quickly disposing of the due process challenge, following Taft’s guidance. He highlighted the “very careful” protections that Strode, influenced by Laughlin’s model statute, had written into the law. Laughlin’s and Strode’s intuition that these safeguards would insulate the law from constitutional attack was correct. “There can be no doubt that so far as procedure is concerned the rights of the patient are most carefully considered,” Holmes wrote.

  In reaching this conclusion, Holmes overlooked a great deal. The Virginia law guaranteed inmates like Carrie a right to be present at their sterilization hearings, but when Carrie attended, no one made any effort to ensure that she understood what was at stake—and it seems clear she did not. The statute also guaranteed inmates the right to appeal their sterilization orders to the circuit court, but Carrie’s appeal had been a hollow formality. The law required her guardian to “defend” her “rights and interests.” At the trial, however, her guardian and her lawyer had not put on a case of any kind, which appeared to fall short of the guardian’s statutory duty. To say her rights were “most carefully considered” was a vast overstatement.

  Holmes was equally dismissive of the equal protection challenge. He made clear he was no fan of equal protection claims generally, calling them “the usual last resort of constitutional arguments.” Holmes’s dismissive reference seemed to reflect his view that “almost any law” could be seen “as discriminating against someone.” It was an unduly negative assessment. In fact, the court frequently struck down laws on equal protection grounds. From 1920 to 1927, it did so fourteen times, making it seem like far more than a “last resort.” Holmes joined the majority in many of these cases. Less than two months earlier, he had written the opinion for a unanimous court in a case in which the plaintiffs prevailed on a Fourteenth Amendment equal protection claim.

  After denigrating equal protection claims as a whole, Holmes quickly dismissed the specific one lodged against the Virginia sterilization law. Unlike a number of state court jurists, he was not troubled that it applied only to inmates of state hospitals, and not to members of the general public. Holmes invoked Strode’s and Dr. Priddy’s defense: once inmates were sterilized they could be released, making room for new inmates. That meant even people not currently institutionalized might eventually be sterilized—which, in Holmes’s view, meant that all Virginians were being treated equally.

  It was not a convincing analysis. There was, in fact, no program or infrastructure in place for identifying members of the general public who were feebleminded and having them institutionalized. A feebleminded inmate at the colony would have a high likelihood of being sterilized. A feebleminded person at liberty living somewhere in the state of Vi
rginia would have little chance. Saying the two groups were being treated equally “was really a matter of form over substance.”

  The central legal issue, however, was not due process or equal protection—it was whether the state had the power to carry out eugenic sterilization. With his devotion to judicial deference, Holmes could easily have played judicial spectator. He could simply have said legislatures have the right to combat feeblemindedness and he was not concerned—as he said of rent control laws—whether their “means were the wisest.”

  Strode had made a plea for just this sort of judicial restraint in his brief to the court. He had urged the justices to remember that “a large discretion is vested in the legislature to determine what the interests of the public require.” This argument should have resonated especially strongly with Holmes, given his willingness to enforce even foolish laws because if his “fellow citizens want to go to Hell I will help them.” Declining to second-guess Virginia’s legislature would have been faithful to his oft-professed philosophy. But that was not what Holmes did. He instead launched into a legal analysis of the law and the sterilization order.

  Holmes began by explaining why he believed Virginia had the power to enact the sterilization law. Because government was allowed to “call upon the best citizens for their lives,” he argued: “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices . . . in order to prevent our being swamped with incompetence.” It was a variation on Holmes’s old “greater power includes the lesser” logic, which he had used in 1892 to explain why New Bedford had the right to fire a police officer for political speech. Here, Holmes was saying that if the state had the power to draft people into the army and send them to their deaths, it clearly had the right to take the lesser step of sterilizing them.

  The logic behind Holmes’s “call upon the best citizens for their lives” argument was flawed. The military draft only required citizens to serve, not give their lives, and the great majority of those drafted survived. If the state passed a law requiring its “best citizens” to literally give their lives—and put them to death—it is unlikely it would survive a constitutional challenge. Nor was it true, as Holmes said, that sterilization was a “lesser sacrifice.” Many people Carrie’s age volunteered for the military—as Holmes himself had—but far fewer voluntarily submitted to sterilization.

  Holmes’s reasoning was not only unpersuasive—it was dangerous. One critic has called his argument “surely one of the most ‘totalitarian’ statements in the history of the Court.” It is hard, after all, to imagine what government action could not be justified on the logic that if the state can “call upon the best citizens for their lives,” it can certainly also do this. Holmes’s constitutional analysis was a gift to tyrants, arguably offering the court’s imprimatur to anything from suppressing free speech to torture.

  Until this point—almost a full four paragraphs into an opinion that was only five paragraphs long—Holmes had not cited any legal precedents. He was “famously skeptical about conventional legal reasoning,” and his opinion demonstrated it. In the end, however, Holmes did cite one case—that old standby, Jacobson v. Massachusetts, in which the court upheld Cambridge’s compulsory vaccination law—but he did not trouble himself to explain the analogy in any detail. He simply wrote that the “principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.”

  The analogy to Jacobson was hardly one Holmes thought up on his own. The eugenicists had been making the comparison between forced sterilization and compulsory vaccination for years, to anyone who would listen. Laughlin had cited Jacobson in his 1922 treatise Eugenical Sterilization in the United States, arguing that vaccination and sterilization were “parallel cases,” in that each was a “surgical treatment” that was “done supposedly for the public good.” The Virginia Supreme Court of Appeals had relied heavily on Jacobson, and Strode cited it extensively in his briefs to both the Virginia Supreme Court of Appeals and the Supreme Court.

  The comparison was a poor one, and Holmes should have known this as well as anyone, because he had been in the Jacobson majority twenty-two years earlier. The burden imposed by a forced sterilization law, being permanently prevented from having children, was far greater than that of a compulsory vaccination law, which required only an inoculation. The Massachusetts law, however, did not even impose that burden. Anyone could refuse to be vaccinated and simply pay a fine of five dollars. Holmes’s claim that the Jacobson ruling required that the Virginia law be upheld was not only unpersuasive but disingenuous.

  Of course, Holmes could have led the Supreme Court in a completely different direction. Rather than view the case as one of due process, or equal protection, or public health, he could have focused on the real tension at its center: the conflict between “the power of the State to legislate” and “the right of the individual to liberty of person.” In his brief opinion Holmes had a lot to say about why the state should have the power to engage in a program of eugenic sterilization. He said nothing at all about what right of liberty Carrie might have had in the situation.

  There was, however, a great deal he could have said. Modern rights to privacy, to bodily integrity, and to have children were not well established in the 1920s, which is why the state courts that struck down eugenic sterilization laws generally did so on the grounds that their procedural protections were lacking or they applied unequally to different classes of people. But when the court heard Carrie’s case, it was actively at work creating just the sort of right that could have protected her: an expanded right of liberty.

  The court was beginning to recognize that the Fourteenth Amendment due process clause protected basic aspects of life from government intrusion. In Meyer v. Nebraska and Pierce v. Society of Sisters, which had been decided four and two years earlier, respectively, the court started to define which aspects of life the right of liberty covered. In both cases, the court expressly stated that family and parenthood were protected from the intrusions of the state. The Meyer court said the ability to “establish a home and bring up children” was one of the liberties “essential to the orderly pursuit of happiness by free men.”

  If Holmes had considered Carrie’s right to liberty he might have concluded, as one critic put it, that there are “some things which decent government simply should not do”—things that included forced sterilization. Taft suggested that there might be something inherently indecent about sterilization when he alluded, in his note to Holmes, to “the shock that many feel over such a remedy.” If Holmes had considered Carrie’s rights under Meyer and Pierce, he still could have come out in favor of sterilization—both of those cases called for balancing liberty interests against the interests of the state in imposing a regulation. Taking the right of liberty into account would, however, have forced Holmes to include Carrie, and her right to have children, in an opinion from which she was almost entirely absent.

  In the end, it seems clear that Holmes did not arrive at his decision through reason. His famous statement in The Common Law that “the life of the law has not been logic—it has been experience” suggested the large role he believed feeling and intuition played in deciding cases. So it was in Buck v. Bell. More than any doctrines of police power or due process, Holmes was driven by his fear of a world “swamped” by tides of the “manifestly unfit.”

  In sounding the alarm, Holmes was expressing his deepest values, ones impressed on him from an early age. He had been raised to believe he and his peers were part of a hereditary aristocracy. He had learned from his father that they were part of a special caste whose refined physiognomy set them apart, and whose elevated intellect was “congenital and hereditary.” Eugenics was a movement of people who believed themselves to be inherently superior, and in Holmes it found a fitting judicial standard-bearer. Holmes believed in the cause deeply: as he wrote to a friend two days after his opinion was released,
“sooner or later one gets a chance to say what one thinks.”

  Holmes, who had spent much of his career as a judicial spectator, leapt to life as an enthusiastic advocate for the eugenic cause. He had been a skeptic about all of the other progressive reforms of his day, including child labor bans and minimum wage and maximum hours laws. He was not skeptical about eugenics, however, and he was eager to do what he could to help the movement. Buck v. Bell was “one decision that I wrote,” he later told a friend, that “gave me pleasure.”

  • • •

  Holmes, of course, did not have the power to decide the case alone—he needed a majority of the justices to sign on to his opinion. He won the support, in the end, of seven of his fellow justices. There may have been more doubts about the Virginia law than was apparent in the final vote—Taft had suggested as much with his note to Holmes saying that “some of the brethren are troubled about the case.” Yet in the end only one of those troubled justices was moved to dissent.

  It was no great surprise that some of the justices signed Holmes’s opinion. As chairman of the board of the Life Extension Institute, Taft had already lent his name to promoting eugenic ideas. The bigoted and mean-spirited McReynolds, who would not sit next to Brandeis, might have been expected to support eugenics—and the same could be said for Van Devanter, who reportedly would join McReynolds in asking the president not to “afflict the Court with another Jew.” Sutherland’s and Stone’s exposure in college to intellectual mentors with strong social Darwinist beliefs could explain their votes.

  Perhaps most notable was the decision of Brandeis, a man who had built a career by standing up for the underdog, to join the majority. It is a vote that has never been adequately explained, by Brandeis himself or by his biographers. Brandeis may have been attracted to eugenics in the way many progressives of the era were—seeing it as a movement dedicated to using scientific advances and government policy to create a better world. He might also have been one of the “troubled” justices Taft referred to, yielding in the end to persuasion from his old friend Holmes, and Taft’s efforts in “massing the court.” Brandeis later admitted that to maintain unity on the court, and to placate the consensus-seeking Taft, he sometimes voted for opinions with which he did not agree.