'Three Generations of Imbeciles are Enough' - The Eugenics Case Justice Butler's Dissent in Buck v Bell, 274 US 200 (1927)

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PART VI

AMERICAN PERSPECTIVES ON DISSENT

19 ‘Three Generations of Imbeciles are Enough’ – The Eugenics

Case

Justice Butler’s Dissent in Buck v Bell, 274 US 200 (1927)

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CHAPTER 19
‘THREE GENERATIONS OF IMBECILES ARE ENOUGH’ – THE EUGENICS CASE

Justice Butler’s Dissent in

Buck v Bell ,
274 US 200 (1927)

Dr Stuart Weinstein and Dr Charles Wild

19.1 Introduction 379
19.2 Facts 381
19.3 Justice Butler’s dissent 384
19.4 Conclusion 390

As a general rule, dissenting opinions receive slight attention. The active practitioner is chiefly concerned with the law as it is declared by the majority of a court, and pays little heed to a shrill or feeble shriek as to what it might or ought to be.¹

19.1 INTRODUCTION

Notwithstanding this observation by the early 20th-century judicial scholar, Professor Hampton L Carson, more recently Professor Mark Tushnet writes that the American ‘constitutional tradition celebrates the great dissenters – John Marshall Harlan, Oliver Wendell Holmes, William O. Douglas. On one level, the reason is clear: out of step with the prevailing constitutional views of their times, they were vindicated by history. The nation came to see the wisdom of

¹ Carson, HL, ‘Great Dissenting Opinions’, (1894) 7 Ann Rep ABA 273, at p 273.

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380 Part VI – American Perspectives on Dissent

their constitutional views, and the errors of the majorities that temporarily prevailed’.²

But what if the dissenting view is not expressed? If there is no shrill or feeble shriek at all, what can one make of a dissent that is made but for which no opinion is delivered? Can one assign a viewpoint to such a silent dissent?

In fact, it used to be common for US Supreme Court justices to dissent from opinions of the Court without writing or joining a separate dissenting opinion. This US tradition originated with the first Chief Justice John Marshall who expressed the view that:

I should now, as is my custom, when I have the misfortune to differ from this court acquiesce silently in its opinion.³

In the 20th century, Mr Charles Evan Hughes (first Associate Justice and then Chief Justice of the United States) wrote:

There are some who think it desirable that dissents should not be disclosed as they detract from the force of the judgment. Undoubtedly, they do.⁴

This rationale was explained by Justice Oliver Wendell Holmes when he served on the Supreme Judicial Court of Massachussetts in Vegelahn v Guntner:⁵

In a case like the present, it seems to me that, whatever the true result may be, it will be of advantage to sound thinking to have the less popular view of the law stated, and therefore, although when I have been unable to bring my brethren to share my convictions my almost invariable practice is to defer to them in silence, I depart from that practice in this case.⁶

He stated this view again in Plant v Woods:⁷

When a question has been decided by the court, I think it proper, as a general rule, that a dissenting judge, however strong his convictions may be, should thereafter accept the law from the majority ...⁸

² Mark Tushnet, M (ed), I Dissent: Great Opposing Opinions in Landmark Supreme Court Cases
(Beacon Press, 2008).

³Bank v Dandridge, 25 US (12 Wheat) 64 (1827).

⁴ Hughes, CE, The Supreme Court of the United States (Columbia University Press, 1928), p 68.

⁵ Vegelahn v Guntner, 167 Mass 92 (1896).

⁶ Ibid, p 104.

⁷ Plant v Woods, 176 Mass 492 (1900).

⁸ Ibid, p 504.

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So it is not without some irony that the man who became known as the ‘The Great Dissenter’ would write in his first dissent after becoming US Supreme Court Justice in Northern Securities Co v United States:⁹

I am unable to agree with the judgment of the majority of the court, and although I think it useless and undesirable, as a rule, to express dissent, I feel bound to do so in this case, and to give my reasons for it.¹⁰

19.2 FACTS

Enough of the brilliant Justice Holmes! After all, it was he who got it so wrong in the case we are examining here, Buck v Bell.¹¹ The facts of the case were that in September 1924, Carrie Buck, the 18-year-old illegitimate daughter of a ‘feebleminded’ woman was admitted to the Virginia’s State Colony for Epileptics and the Feebleminded. Six months earlier, the Virginia State Legislature decisively passed their involuntary sterilisation bill authorizing the Superintendents of five state institutions to petition for the permission to sterilise inmates. Buck, who had a mental age of nine and an IQ of about 50, had already given birth to an illegitimate child herself, who was allegedly also feebleminded. At the time, the Superintendent of the State Colony, Dr AS Priddy, petitioned for permission to sterilise Buck for fear she would have more mentally defective children. The statute had provided that each Superintendent needed to receive permission from a special Board of Directors of that institution, which would hear the grounds for sterilisation and determine whether or not to follow through on the operation. Dr Priddy faced immense pressure from state officials to petition for sterilisation, as they were cognizant that the law would be challenged eventually. Therefore, they were eager to make this the test case, during the height of the eugenics movement, in order to see if the law would hold up in court.

Following the approval of the State Colony’s Board of Directors on the sterilisation petition offered by Priddy, Buck immediately appealed the decision to the local Circuit Court of Amhearst County. Judge Bennet Gordon, presiding over the Circuit Court, upheld the constitutionality of the Virginia statute and decreed that the sterilisation must take place within 90 days. Analogous to the decision of the local circuit court, the Virginia Supreme Court of Appeals, under the ruling of Judge Jesse West, unanimously upheld the legality of the involuntary sterilisation statute, which thwarted Buck’s second effort to prevent the operation from occurring. Due to the first two court decisions, Buck then

⁹ Northern Securities Co v United States, 193 US 197 (1904).

¹⁰ Ibid, p 400.

¹¹ Buck v Bell, 274 US 200 (1927): argued 22 April 1927, decided 2 May 1927.

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appealed her case to the US Supreme Court in February 1926. While the court had elected not to hear any previous sterilisation cases in the past, it chose to accept the appeal of Buck and subsequently heard the case of Buck v Bell (Bell was the current Superintendent of the Colony in April of 1927). Within this case, the court faced the question of whether or not the Virginia statute authorising involuntary sterilisation had denied Buck the right to due process of law and the equal protection of the laws under the Fourteenth Amendment.¹²

A brief summary of the arguments made by counsel on both sides of the case reveals the differing positions with which the Supreme Court was faced with respect to the forced sterilisation petition. IP Whitehead, representing the interests of Buck, based his argument to the Supreme Court on the violation of her Fourteenth Amendment rights. Whitehead offered a multi-dimensional argument by displaying reasons why the involuntary statute failed to benefit either society or the individual. Whitehead argued that a forced salpingectomy, a surgical procedure involving the cutting of the Fallopian tubes, was a direct violation of the constitutional right of bodily integrity. He cited the case of Munn v Illinois¹³ as a precedent, which defined what was meant by ‘deprivation of life’. According to the precedent, deprivation of life did not only apply to life itself literally, but also more broadly to all of those limbs and faculties by which life is meant to be enjoyed. As Whitehead claimed:

The inherent right of mankind to go through life without mutilation of organs of generation needs no constitutional declaration.¹⁴

Therefore, Whitehead contended that a forced salpingectomy would fall into the category of unjustifiably depriving Buck of a full and rich life. Whitehead then disputed the arbitrariness of the sterilisation process as a breach of equal protection, since various ‘natural’ classes within society will be governed by different sets of rules. Moreover, within his argument, Whitehead asserted that should the court allow the Virginia statute to stand as valid, there would be no limit to the powers of the state to divest itself of individuals who did not meet its standards. As Whitehead declared:

In the place of the constitutional government of the fathers we shall have set up Plato’s Republic.¹⁵

¹² Polirstok, S, ‘Buck v Bell: A Case Study’, (2002) (Fall) Journal of History, Binghamton University, State University of New York, Department of History, available at:
www2.binghamton.edu/history/resources/journal-of-history/buck-vs-bell.html (accessed 26 October 2011).

¹³ Munn v Illinois, 94 US 113 (1877).

¹⁴ Above, n 11, at p 201.

¹⁵ Above, n 11, at p 201.

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Contrastingly, Aubrey Strode, the counsel representing the State Colony, opened his legal defence by introducing the issue of cruel and unusual punishment. Since the plaintiff never officially made a formal charge stating that her Eighth Amendment right had been violated, it is puzzling that the defence would even bring the matter into consideration. However, citing the case of Hart v Commonwealth¹⁶ as precedent, Strode maintained that a sterilisation operation did not violate a constitutional provision forbidding the administration of cruel and unusual punishment, as there would be no serious pain inflicted or a substantial danger to life as a consequence of this medical procedure. Following his claim that the Eighth Amendment was in no way violated within this case, Strode argued that the implementation...