Buck v. Bell

1. I have opined at various times that Buck v. Bell might just be the worst Supreme Court opinion ever issued, though ultimately, I think the prize goes to Dred Scott. In any event, however, what is really wrong with it? And which of these problems, if cured, would remove the opinion from the "shameful" list.

a) failure to look beyond the record and see the collusive nature of the lawsuit

b) the rhetoric seemingly empowering states to sterilize those who "sap their strength."

c) the bad science in which the role of heredity in determining cognitive abilities is exaggerated

d) the deprecation of equal protection arguments

e) the failure to recognize that salpingectomy in 1905 was not a minor or perfectly safe operation

f) the glee of the last line -- that if equality is the problem it will be better achieved if we can assembly-line sterilize people, get them out of the asylum, and bring more in to be sterilized

2. The opinion is in its own way brilliantly written. Compare the prose style of Holmes -- terse, succinct, almost tweetable -- to his contemporaries. Often we mistake literary brilliance for argumentative strength. Indeed, this opinion makes my skin crawl in part because it reveals that literary skill on which I at least place some emphasis as a proxy for merit is a sometimes a trap.

3. What background practices, beliefs, procedures made the court prone to issue a judgment and write an opinion of this sort? How many of those preconditions are still present today? How do we get rid of them? Do you think, for example, that tentative opinions might have prevented Holmes opinion from seeing the light of day?

4. The case has never been overruled. Indeed, Westlaw considers only 7 of the 2361 citations of it to be negative. Should the Supreme Court go out of its way to overrule it as it did with Korematsu in Trump v. Hawaii?

4. What does it mean that just one justice dissented and that the dissenter did not bother to write an opinion?

5. Justice Holmes uses the following curious phrase: "probable potential parent of socially inadequate offspring." It is perhaps not a coincidence that this is the definition of a "cacogenic person" contained in Harry Laughlin's model act on eugenics.

6. Some people now believe that the risks posed by climate change require humans to breed less. Would you support any form of compulsory government action to achieve this goal? What if the science were true: i.e. that a reduction in the number of humans would greatly preserve the ecology of the planet not just for the remaining humans but for the remaining biota?

7. Justice Clarence Thomas recently wrote the following in a concurrence in Box v. Planned Parenthood of Indiana: "Sanger’s arguments about the eugenic value of birth control in securing “the elimination of the unfit,” apply with even greater force to abortion, making it significantly more effective as a tool of eugenics. Whereas Sanger believed that birth control could prevent “unfit” people from reproducing, abortion can prevent them from being born in the first place. Many eugenicists therefore supported legalizing abortion, and abortion advocates—including future Planned Parenthood President Alan Guttmacher— endorsed the use of abortion for eugenic reasons. Technological advances have only heightened the eugenic potential for abortion, as abortion can now be used to eliminate children with unwanted characteristics, such as a particular sex or disability." What do you make of this?

8. By 1931, 28 of the Nation’s 48 States had adopted eugenic sterilization laws. Buck was one of more than 60,000 people who were involuntarily sterilized between 1907 and 1983.

9. The Virginia Medical Monthly published a charming poem about euthanasia:

Oh, you wise men, take up the burden
And make this your loudest creed,
Sterilize the misfits promptly –
All not fit to breed

10. Francis Crick (DNA) wrote the following: "My other suggestion is in an attempt to solve the problem of irresponsible people and especially those who are poorly endowed genetically having large numbers of un-necessary children. Because of their irresponsibility, it seems to me that for them, sterilization is the only answer and I would do this by bribery. It would probably pay society to offer such individuals something like l,000 pounds down and a pension of 5 pounds a week over the age of 60." Would paying people not to breed be a good idea?

11. In his book, The Passing of The Great Race (published by Scribner in 1916), leading eugencist Madison Grant wrote the following: "Mistaken regard for what are believed to be divine laws and a sentimental belief in the sanctity of human life tend to prevent both the elimination of defective infants and the sterilisation of such adults as are themselves of no value to the community. The laws of nature require the obliteration of the unfit and human life is valuable only when it is of use to the community or race.” Hitler writes a fan letter to Grant telling him the book is "my bible." How far from Grant was Holmes? The book, by the way, has 4.2 out of 5 stars on Amazon.