'Empathy' on 1927 Supreme Court might have saved thousands from the knife


One of the great things about Senate confirmations of Supreme Court justices is that they help us develop a long-term perspective on the workings of the highest tribunal in the land.

For instance, when the political fight broke out over Sonia Sotomayor's assertion that a judge's ethnic and socioeconomic background might actually influence how he or she interprets the law, I cracked the history books to find support for that fairly obvious point.

The best illustration turns out to be a 1927 case known as Buck vs. Bell. Or as it might otherwise be known, the case of Oliver Wendell Holmes and the imbeciles.

Holmes, perhaps the most revered of all Supreme Court justices, was always proud of his opinion in Buck vs. Bell, which upheld a Virginia law allowing the forced sterilization of "mental defectives." Yet the terse ruling proclaims, in each of its four chilling paragraphs, the narrow elitism of his personal life experience. And its consequence was tens of thousands of ruined lives over the next half-century.

Before we reconsider Buck vs. Bell, let's review the conservative brief against Judge Sotomayor, who presumably reflected President Obama's stated desire for a justice who would show "empathy."

The attack is based partially on a speech she delivered at UC Berkeley Law School in 2001. Challenging a notion attributed to former Justice Sandra Day O'Connor that "a wise old man and a wise old woman" on the Court should come to the same legal conclusion, Sotomayor said, "I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life."

For conservatives, that's the money quote. Yet Sotomayor developed this idea with greater nuance. She acknowledged that people of "different experiences or backgrounds" are often quite capable of "understanding the values and needs of people from a different group." But she endorsed the view that "in any group of human beings there is a diversity of opinion because there is both a diversity of experiences and of thought."

Her bottom line was that "personal experiences affect the facts that judges choose to see." Those personal experiences affect far more than a judge's approach to affirmative action or other social welfare cases. They affect the approach to business and statutory cases -- the majority of matters before the high court.

Is this really arguable? Is the law a set of immutable principles brought to earth on, say, the wings of heavenly messengers to be decoded robotically by human agents distinguished only by their power of intellect? Or is it a living institution, evolving with society, incorporating an ever broader and deeper definition of American values as the definition of "American" itself becomes broader and deeper? In other words, did Justice Holmes' opinion in Buck vs. Bell reflect basic legal principles or establishment culture?

The case of Carrie Buck arose at a time when the pseudo-science of eugenics had achieved broad currency. Eugenics held that intelligence was an inherited trait, and that the "feeble-minded" or "socially inadequate" should therefore be forcibly sterilized to preserve the human race.

As the historian William E. Leuchtenburg observed in a 1989 essay, the target group encompassed the "wayward," the tubercular, the "blind, deaf and deformed," orphans, paupers and the homeless. Eugenicists seemed wholly untroubled by "the transparent class bias, not to mention the heartlessness toward the handicapped, in this classification scheme," he wrote.

When opponents of Virginia's sterilization law brought her case to the Supreme Court, Buck was 18 and a resident of the State Colony for Epileptics and Feeble Minded, where Superintendent J.H. Bell held the authority to order the sterilization of his wards -- "under careful safeguard" of their due process rights, Holmes would write.

Holmes accepted at face value the state's contention that Buck was "a feeble-minded white woman, . . . the daughter of a feeble-minded mother in the same institution, and the mother of an illegitimate feeble-minded child." Upholding society's interest in avoiding the "transmission of insanity, imbecility, etc.," he produced one of the most infamous sentences in the annals of the court.

"Three generations of imbeciles," he wrote, "are enough."

("Imbecile" was then a technical classification in eugenics -- a step above "idiot" and below "moron.")

Might the outcome of Buck vs. Bell have been different were the court not monolithic? Leuchtenburg thinks so.

"It's hard to believe that one or two women justices might not have made a difference," he told me from his home near the University of North Carolina, where he is a professor emeritus. "They might have made the other justices confront what was at issue."

More germane to the Sotomayor debate, Leuchtenburg observes, "if someone says that a judge's background has no pertinence to how decisions are reached, that's palpably nonsense."

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