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

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."