Sotomayor, empathy, and sterilization

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

By Michael Hiltzik[W]hen 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.More on the Buck case: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."Comment:  Thousands of Native women were sterilized using the same "logic" and perhaps the same ruling. Sotomayor's position is that her background might lead her to rule differently in such cases.

As Hiltzik wrote, "Is this really arguable?" I'd have to say that anybody who argues against this position is an imbecile.

For more on the subject, see Sotomayor Practices "Tribal Justice"? and Sotomayor Favors "Reconquista"?