ESSAY: What the Supreme Court’s Infamous 1927 Eugenics Decision Tells Us About Filling Justice Scalia’s Seat

 Carrie Buck, with her mother, Emma.

Carrie Buck, with her mother, Emma.

By Adam Cohen

In 1927, in Buck v. Bell, the Supreme Court ruled 8-1 that a poor white woman from Virginia should be sterilized for eugenic reasons.  The opinion, written by Justice Oliver Wendell Holmes, Jr., did not merely uphold sterilizing Carrie Buck – it issued a clarion call to the nation to sterilize many more “manifestly unfit” people to prevent them from reproducing.  America had to sterilize those who “sap the strength of the State,” the Court insisted, to avoid “being swamped with incompetence.”

Buck v. Bell is undoubtedly one of the worst rulings in Supreme Court history.  It cheered on a eugenic mania that, in the end, led to as many as 70,000 Americans being sterilized, including many – like Buck – who had nothing physically or mentally wrong with them.  Many more Americans were locked away for years to prevent them from reproducing.  Their “crime” was being labeled “feebleminded” or “diseased,” or poor, or indolent – or any of the other loosely defined, unscientific categories the eugenicists came up with.

There is a tendency to believe that terrible Supreme Court rulings like Buck v. Bell are the rare exception in American history, but they are not.  In fact, the Court has from its earliest days regularly gotten the important issues of the day wrong – almost always by siding with powerful interests against “little people,” like Carrie Buck.  This instinct to protect the powerful is a grave flaw how the Court has performed its constitutional role – and one that President Obama, or his successor, should keep in mind when filling the vacancy created recently by the death of Justice Antonin Scalia.

The Supreme Court took the wrong side in the eugenics battles of the 1920s, with its ruling in Buck v. Bell -- but eugenics is hardly the only major issue the Court has gotten wrong.  In the slavery era, the Court ruled in Dred Scott v. Sandford that slaves had no right to sue for their freedom.  In the Jim Crow era, the Court ruled in Plessy v. Ferguson that racially segregated railroad cars were constitutional. During World War II, the Court upheld the internment of Japanese-American citizens, in Korematsu v. United States. And midway through the gay rights movement, in Bowers v. Hardwick, the Court upheld the criminal conviction of a gay man for having sex in his own home.

The Supreme Court has been wrong about the big issues in American history so often that it must be considered, as they say in Silicon Valley, a feature, not a bug.  The dean of a leading law school recently concluded, after more than 30 years of teaching constitutional law, that “The Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.”

The Supreme Court has had a clear pattern in its worst decisions: it has wrongly sided with the powerful interests in society over the powerless.  That was the case with Carrie Buck, who was hoping to be protected from the Commonwealth of Virginia, which wanted to sterilize her.  And it was true with Dred Scott, Homer Plessy, Fred Korematsu, and Michael Hardwick – all of whom hoped the Court would protect them from more powerful tormentors.

The Court has, of course, sometimes sided with weaker parties – or seemed to.  In Brown v. Board of Education it ruled for black students challenging segregated schools.  But that ruling can also be seen as the Court -- after upholding segregation for so long -- finally siding with the North, and the great majority of the country that did not support racial segregation.  On civil rights, gay rights, and many other major issues, the Court has generally only come around to protecting the weak when a majority of the country has done so.

Legal scholars say it is no accident that the Supreme Court has ruled so often in favor of the stronger parties in the cases before them.  Donald Black, a legal sociologist at the University of Virginia, has written that law is a great respecter of hierarchy – and that with near mathematical precision, it can be predicted that police, judges, and other actors in the justice system will overwhelmingly side with rich and powerful institutions and individuals when there is a significant status gap in a case.

In recent years, the Supreme Court has very much followed this formula.  The most notorious example is the decision in Citizens United v. FEC, in which the Court ruled that corporations have a right to spend unlimited amounts of money in federal elections.  Citizens United has dramatically reshaped the political landscape, giving unprecedented new power to corporate special interests.

There have been many more recent examples.  In a landmark equal pay lawsuit, the Court rejected Lily Ledbetter’s claim that her employer broke the law when it paid her less than her male co-workers – a ruling that prompted Congress to pass a new equal pay law.  In an infamous “three strikes and you’re out” ruling awhile back, the Court ruled that the Eighth Amendment bar on cruel and unusual punishment did not prevent a man from being sentenced to life in prison for shoplifting a few children’s videos.

The vast majority of the Supreme Court’s most oppressive recent rulings – including Citizens United, and the equal pay and three-strikes cases – have been by 5-4 votes, with Justice Scalia in the majority.  His departure opens up the possibility that the Court could, after all of these years, have five justices who flip the conventional formula, and begin by looking out for the interests of the less powerful parties in a case.  If the Court did that, the law could change dramatically in almost every area – from campaign finance regulation, to employment discrimination, to the right of privacy against government intrusions.

The Code of Hammurabi, one of the great legal texts of the ancient world, declared that its purpose was “to bring about the rule of righteousness in the land . . . so the strong should not harm the weak.”  This simple ideal – that the law should prevent the strong from harming the weak – is the highest calling of courts and judges, but one that the Supreme Court has rarely been guided by.  With the next appointment to the Court, that could finally change – and the Carrie Bucks of the world could find that when powerful forces rise up against them, they have five votes on their side.

Adam Cohen is the author of Imbeciles: The Supreme Court, American Eugenics, and the Sterilization of Carrie Buck, published this week by Penguin Press.