Excerpted From: Tiffany C. Graham, “The Cruelty Is the Point”: Using Buck v. Bell as a Tool for Diversifying Instruction in the Law School Classroom, 29 Roger Williams University Law Review 62 (Fall, 2023) (100 Footnotes) (Full Document)

TiffanyCGrahamBuck v. Bell is a notorious entry into the anti-canon of Supreme Court case law. In an ideal world, the opinion would fade into the forgotten dusk, but remembering it allows readers to consider how badly--and how baldly-- democratic institutions can fail. In Buck v. Bell, the Supreme Court upheld the 1924 Virginia Eugenical Sterilization Act, which permitted the involuntary sterilization of people who were deemed “mental defectives” as a matter of law. As a result of this decision, thousands of women--mostly poor women of color--were sterilized against their will throughout the next few decades:

With Supreme Court endorsement, the Virginia law provided authority for the sterilization of more than 8,300 inmates of state mental institutions between 1927 and 1972 and set the stage for the passage of laws that would sanction sterilization operations on 60,000 Americans. The law under which Hitler sterilized millions contains much of the same language found in the Virginia sterilization law.

Instructors who are looking for opportunities to expose their students to the ways in which intersectional forms of bias impact policy and legal rules can use Buck v. Bell to explore, for instance, the impact of disability and class on the formation of doctrine. A different intersectional approach might use the discussion of the case as a gateway to a broader conversation about the ways in which race and gender bias structured the implementation of sterilization policies around the nation. Finally, those who wish to examine the global impact of American forms of bias can use this case and the sterilization policies that were enforced in its wake to identify the relationship between those biases and the propagation of the Nazi plan to implement mass genocide. Buck v. Bell provides a unique and rich opportunity to explore the harms that flow from institutionalized racism, classism, ableism, and sexism in the domestic and international spheres.

The decision focuses on the fate of Carrie Buck, a poor teenager who was raped and impregnated by her foster parents' nephew and then was used as the subject of the test case advanced by the director of the facility where she was confined. After learning of her pregnancy, Buck's foster parents confined her to an asylum for committing the offense of being a social liability. Wrongly accused of promiscuity and deemed unintelligent, she was sent to Virginia's “State Colony for Epileptics and Feeble Minded,” the same institution which housed her mother, against whom claims of feeble-mindedness and promiscuity had also been lodged. Carrie Buck eventually gave birth to a daughter who, after failing to pass a questionably designed and administered test of her infant intellectual capabilities, was also deemed an “imbecile,” presumably hampered by her genetic ties. Largely based on its assessment of the care that Virginia had taken in reviewing the so-called mental defects in three generations of Bucks-- grandmother, daughter, and granddaughter--as well as accounting for the alleged immorality that affected two of them, the Supreme Court ruled against Carrie Buck. The Court allowed the State of Virginia to turn her personal tragedy into an indictment of her worth to society, and her punishment for being a burden was to deprive her of the ability to ever give birth to a child again.

The Virginia Eugenical Sterilization Act was, in part, a product of the eugenics craze that began sweeping the nation toward the end of the nineteenth century. “Eugenic science,” as it was sometimes known, was developed in Europe and the United States as part of an effort to determine “how various traits - emotional, physical, intellectual - were inherited[] so that such information could be applied in order to advance the human race and preserve imagined racial superiority.” Part of the eugenics project was to advocate for social interventions designed to control the passage of hereditary traits, and along those lines, in 1907, Indiana became the first state to pass a compulsory sterilization law. This law was crafted in response to several lines of thought that became increasingly prominent at this time and began to influence each other: degeneracy theory, Social Darwinism as a replacement for charity, and the effort to use biology to evaluate “social worth.”

Degeneracy theory was based on the idea that negative environmental settings would damage individual heredity and, in turn, produce “defective offspring.” Social Darwinism was conceptually similar. This nineteenth-century idea took insights from evolutionary biology and the theory of natural selection and applied those ideas to the social frameworks that governed human interactions. Elof Carlson discusses the implications of Social Darwinism as applied to nineteenth century philanthropy, arguing that “many ... who had initially viewed the less fortunate as worthy objects of assistance came to understand the poor, diseased, and physically infirm as defective in body or mind [] often undeserving of charity.” Carlson also suggests that the driving force behind the third factor--the use of biology as a determinant of social value--was elite opinion. Elites believed that unworthy traits were rooted in heredity and were not affected by the external environment; instead, the traits were simply passed down from generation to generation--a fairly hopeless assessment of the human potential for progress.

Elite opinion was especially important, and it coalesced around the view that society should address the problems that arose from presumed genetic failure, causing policymakers to respond with multiple efforts at regulatory control. One solution was segregation; so-called “defectives” were placed in state-run institutions to prevent them from reproducing during their fertile years. Policymakers, however, were also exploring a more drastic solution-- compulsory sexual sterilization. The idea was met with initial resistance--the public understood the importance of curbing social problems but was uncomfortable with the idea of using surgical means to address them. The development of a safe surgical technique like the vasectomy, however, persuaded many, including policymakers, that forced sterilization was a viable option. At the time, policy makers were unsure whether these laws would survive judicial scrutiny. Several state court decisions had found that the sterilization laws were unconstitutional based on multiple theories: some found that they rose to the level of cruel and unusual punishment, while others found that the laws violated procedural due process requirements, the prohibition against bills of attainder, or equal protection. By the time Buck v. Bell arrived at the Supreme Court, multiple states had passed such laws, but also a number of lower courts had invalidated them as violating multiple provisions of state or federal constitutions.

The decision is astonishingly brief, particularly given the nature of the harm that it permits and the complexity of the issues that were at stake. Writing for the majority, Justice Holmes opens the opinion with a pithy description of Carrie Buck that immediately reveals where the decision is headed: he draws her as “a feeble minded white woman,” who is also “the daughter of a feeble-minded mother,” who had recently given birth to a “feeble-minded child.” Holmes sets up the reader to feel not just contempt for the entire family but also a sense that there is no continued value in propagating a genetic line that is characterized by multi-generational failure. He goes on to argue that the salpingectomy procedure (i.e., a tubal ligation) is safe, relatively pain free, and would cause no danger to her life. In other words, despite the fact that Carrie, her mother, and her daughter were members of the underclass, Holmes suggests that the Court was approving a procedure that would not subject her to any significant burden.

As Holmes continued the opinion, he emphasized the procedural protections that the State had put in place, making it clear that Carrie had received ample opportunity to air her objections. This focus on facts and procedure was an important concession--Holmes was extremely supportive of the eugenics regime, but Chief Justice Taft, who agreed with the outcome, urged him to tone down his rhetoric and focus on being objective. Other members of the Court were somewhat uncomfortable with the law, and an overly enthusiastic Holmes might have lost the votes that he needed:

Holmes had embraced the most radical ideas for social improvement when the formal eugenics movement was only in its infancy. Describing the typical criminal as “a degenerate,” Holmes despaired of any potential for improvement or reformation; such people, he said, simply “must be got rid of.” Science, he said, could “take control of life, and condemn at once with instant execution what is now left to nature to destroy.”

Beyond what Holmes found to be a more than adequate procedure, however, was the substance of the law itself. Holmes reasoned imposing sterilization on this group of people was a reasonable use of the police power given the State's purpose of protecting communities from the harms these individuals allegedly produced, and, therefore, the law did not violate any of Buck's constitutional rights. Even though she was going to experience an irreversible loss, Holmes framed the issue through the lens of civic sacrifice:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. 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.

Insofar as rhetorical flourishes were concerned, Holmes was indulging them at this point. More importantly, he was making the claim that society calls on everyone to periodically accept the burdens that come with membership. As a Civil War veteran, he was perhaps highly attuned to the nature of military sacrifice and would have viewed the loss of life and limb for the sake of one's country as a far bigger ask than undergoing what he perceived as a relatively painless procedure that would make one less of a burden on society overall. The best people in the society had given their all repeatedly, so, from Holmes' perspective, those who were among the worst could be called upon to pay their way by offering a fraction of the price that others had paid. He then concluded the opinion by dismissing out of hand the equal protection claim that Buck's lawyer had raised and asserted that three generations of her family were enough.

One member of the Court, however, dissented--Associate Justice Pierce Butler. His dissent, though, was silent. He declined to write an opinion that expressed his opposition or highlighted the failures of the majority position. History has been left to speculate the reasons for his disagreement with the majority; clues, however, suggest that Butler's Catholic faith might have inspired opposition as well as his deep appreciation for liberty, especially as it was protected by the Due Process Clause of the Fourteenth Amendment.

The offhanded contempt that Holmes directed toward several classes of people in this case, particularly those with intellectual disabilities and those who were poor, is striking. This might be confusing for modern audiences; Holmes is a towering figure in Supreme Court history, is one of its most influential jurists, and has a long-standing reputation for being a giant within the Progressive movement. The discordance is due, in part, to his reputation as a defender of civil liberties, a reputation which is substantially rooted in his First Amendment jurisprudence. Observers might also ground the enormous level of regard for him in his deferential stance toward reasonable exercises of legislative authority even when he disagreed with the stated policy goals, a position which fueled his opposition to the perceived laissez-faire leanings of his Lochner-era judicial colleagues. Notably, Holmes was not always deferential to legislatures, but as a general matter, he preferred to give them room to implement the policies of their choice.

In truth, his record is complicated. By way of example, Holmes may typically have chosen to defer to the policy goals set by legislatures in contrast to his colleagues who were more willing to question the regulatory scope of the police power by subjecting it to constitutional limits, but he was also the author of one of the most influential opinions limiting the authority of state legislators when regulating the actions of coal mining companies: Pennsylvania Coal Co. v. Mahon. In that case, Pennsylvania tried to prohibit coal companies from exercising their rights to mine coal under the ground if doing so would substantially weaken surface stability; such a prohibition would render a significant percentage of the coal company's holdings worthless. In an 8-1 ruling, and with Holmes writing for the majority, the Court decided that such a prohibition was a taking within the meaning of the Constitution. To support this, Holmes had to develop new caselaw because this conclusion was not rooted in traditional eminent domain principles, which had previously been the bedrock of takings law; instead, Holmes created the new doctrine of regulatory takings that found a compensable deprivation could occur if a law passed by the State rendered property substantially diminished in value. Regulatory takings doctrine recognized that the normal constitutional functioning of the police power creates the risk that legal rules will lessen property values to some degree, but in the words of Justice Holmes in Mahon, “while property may be regulated to a certain extent, if regulation goes too far[,] it will be recognized as a taking.” This case highlights an exception to Holmes' typically deferential stance toward legislatures, a principled position that had generated a great deal of admiration for him. Interestingly, one might persuasively argue that Buck v. Bell is the decision that most tellingly revealed both the best of him--his deference toward democratically elected actors--and the worst of him--his casual cruelty, his elite, Boston Brahmin bigotry, and the arrogance which suggested a belief that the issues were so obvious in the case that there was no need to put pen to paper and persuasively explain himself.

What might a fuller opinion from Holmes have looked like? Or more interestingly, what might a dissent in this case have looked like? Exploring this idea could be engaging not just from a purely intellectual standpoint but also from a teaching perspective. Instructors might find it valuable to challenge students either to rewrite the majority opinion or write the dissent that was never crafted. Taking inspiration from Feminist Judgments: Rewritten Opinions of the United States Supreme Court, the exercise might be even more worthwhile as a teaching tool if students are asked to envision--or re-envision--the opinion through a particular lens (though of course, that would not be necessary--merely reimagining the opinion in a straightforward way would be sufficient to elicit consideration of questions related to the marginalization of an individual like Carrie Buck).

There are multiple lessons that students might glean from engaging in this exercise. For one thing, this would be a sustained exercise in thinking about legal rules from the perspective of those harmed by the rules. Students sometimes struggle to move beyond the application of legal rules to the formation of a critique that offer more than simple disagreement. Forcing students to write an imagined dissent would teach them how to think systematically about the substantive problems with a legal argument and how they would address those issues in a response. An exercise like this might also inspire some students to engage deeply with critiques of moral relativism by mining the available historical information to see what kinds of challenges to eugenics theory existed in the mainstream discourse in the early twentieth century. This matters because one might imagine that someone as highly informed about the subject as Holmes would also have had a counter-narrative available had he been willing to listen.

Some argue that contemporary thinkers should not subject historical actors to modern mores. But there was a robust strand of objection that echoes the critique that more modern voices assert. In this exercise, students who examine the issue from this perspective and allow it to inform their dissents must identify the voices against eugenics that existed at the time the opinion was written. Such a review would ideally include experts who challenged the validity of the science; in light of such evidence, students would have to consider whether it is fair to judge the proponents of eugenics based on the availability of credible information that they might reasonably have possessed. The exercise would also help students develop the skill of interrogating a received narrative for the purpose of eliciting all relevant facts. The factual recitation in the opinion itself is quite barebones, and a review of the record would allow students to examine the information that Justice Holmes left out of his analysis.

The assignment also has pedagogical value because it forces students to grapple with the impact of trauma on the way litigation proceeds and a story is told. For example, one might argue that the biggest gap in the record is that no one seemed to know at the time that Carrie Buck was raped. Of course, given the time period at issue, more widespread knowledge of the assault may not have worked to her advantage--laws against forcible rape may have led to the prosecution of her guardians' nephew and the risk that she would not have been believed was high. Buck was white, but she was poor, undereducated, and the daughter of a woman who was accused of prostitution. If she had insisted on lodging the accusation, it is just as likely that she would have been viewed as a liar, thereby strengthening the case against her for moral degeneracy. But considering how this knowledge would have interplayed with the decision had it been on the record creates a useful exercise in considering the role of trauma.

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Ultimately, there are many lessons that one might glean from the exercise. For the sake of providing a model of what a submission might look like, the next part of this article provides an imagined dissent and demonstrates how it might have been written. The argument here focuses on the substantive due process claim at stake--namely, the right to bodily integrity as connected to the right to procreate--because it is a straightforward argument that would likely have garnered the strongest support from case law that existed at the time. Notably, this is a Lochner-era case, and, as such, the precedents supporting an expansive vision of due process that protected an imprecisely defined form of liberty was an exceptionally strong basis on which a dissent might have proceeded. Other arguments that students might wish to explore include an equal protection objection or a cruel and unusual punishment argument (which would also provide an occasion for students to explore early incorporation of the Eighth Amendment).

Tiffany C. Graham is an Associate Professor and the Associate Dean of Diversity and Inclusion at Touro University, Jacob D. Fuchsberg Law Center.