Review of “Out of Order: Stories from The History of the Supreme Court” by Sandra Day O’Connor

Out of Order, by Sandra Day O’Connor, the first female justice of the Supreme Court of the United States, is an eclectic, somewhat uneven, collection of anecdotes.

At its best, the book features some incisive analyses of major constitutional cases. The author clearly has mastered her craft when it comes to explicating abstruse legal issues. An early chapter covers the history and development of the power relationship between the Court and the President with terse analyses of four seminal cases, from Marbury vs. Madison to Youngstown Sheet & Tube (the steel seizure case). O’Connor shines whenever she states the holding of an important case.

But the book is not pure history or pure law. It is anecdotal without an overriding sense of organization. It jumps from topic to topic, and not all the topics are particularly interesting. For example, it contains an entire chapter devoted to the various oaths (including full quotations of the oaths), judicial and patriotic, that justices take and have taken.

Sandra Day O’Connor taking the oath as an associate justice on Sept. 25, 1981.

Nevertheless, it contains some interesting factoids about the current and previous Courts, such as: (1) written opinions were not required until 1834, during President Andrew Jackson’s administration; (2) the current Chief Justice, John Roberts, was the best oral arguer Justice O’Connor encountered in 25 years on the bench; (3) Justice Antony Scalia produces more laughter (by far) than any other justice; and (4) Justice Byron (“Whizzer”) White led the National Football League in rushing while attending law school. (He played with the NFL’s Pittsburgh Pirates (now the Steelers) during the 1938 season.)

The future Supreme Court Justice Byron White got the nickname “Whizzer” while playing for the University of Colorado at Boulder

The book also contains interesting descriptions of the tribulations of earlier justices, who had to “ride circuit,” (i.e., travel—usually by horseback– around the country and conduct trials) as part of their statutory duties. [Justice O’Connor doesn’t go into it, but many of the justices had to share not just rooms, as she notes, but even beds with other judges or attorneys. Abraham Lincoln got to be good friends with some of his “bedmates” from his (Eighth) circuit riding days!]

In addition, O’Connor’s draws some enlightening and engrossing portraits of earlier justices, in particular, James McReynolds and Oliver Wendell Holmes, Jr.

The future Supreme Court Justice Oliver Wendell Holmes Jr. as an officer in the Union Army’s 20th Massachusetts Voluntary Infantry

I listened to an audio version of the book rather than reading it. That may have made enduring the chapter on judicial oaths more tedious than it would have been in writing. The reader is Justice O’Connor herself. While that adds to the authenticity of the book, the Justice does not have an especially good speaking voice.

Because its organization is not linear, the book need not be read sequentially. Each chapter stands on its own, and can even be read – in a probable unintended play on title, out of order. Taken as a whole, it is a pleasant introduction to Supreme Court lore for those with no background in such matters. The Justice does not get into current controversial issues facing the Court.

For a more sophisticated collection of Supreme Court historical anecdotes, I would recommend The Nine, by Jeffrey Toobin, a large portion of which – ironically – focuses on the pivotal role of Sandra Day O’Connor in recent Court history (see our review, here.)

Rating: 3/5

Note: I listened to the unabridged audio version published by Random house Audio, 2013, on 6 compact discs.

Reproductive Rights Forty Years After Roe

Residents of Washington, D.C. are in luck. There is a panel discussion coming up on January 23, 2013, in honor of the fortieth anniversary of the ruling in Roe v. Wade. According to the American Constitution Society for Law and Policy, the event will feature a panel discussion on the progress that has been made in the 40 years since Roe and the challenges that remain.

The panel will include:

Moderator, Caroline Fredrickson, President, American Constitution Society
Walter Dellinger, Partner, O’Melveny & Myers LLP; former acting U.S. Solicitor General
Marcia Greenberger, Co-President, National Women’s Law Center
Helene Krasnoff, Assistant Director, Public Policy Litigation & Law, Planned Parenthood Federation of America
Jessica González-Rojas, Exec. Director, Nat’l Latina Institute for Reproductive Health

Click here for more information.

Justice William O. Douglas on “What’s My Line?”

This charming video came to my attention via the blog The Volokh Conspiracy.

June 2, 1952 – The Supreme Court Decides Youngstown Sheet & Tube Co. v. Sawyer

This seminal decision, known as “The Steel Seizure Case” is one of the most influential opinions of the 20th Century on assessing the legality of presidential orders. In particular, the concurrence of Justice Robert Jackson is discussed even more often than Justice Hugo Black’s majority opinion. [Curtis A. Bradley, in “Clear Statement Rules and Executive War Powers,” 33 Harv. J.L. & Pub. Pol'y 139, 148 (2010) somewhat wryly points out that “Jackson’s concurrence is now so celebrated that it is becoming almost de rigueur among legal academics to criticize it…”]

[Executive orders and proclamations - directives or actions by the President - are not defined by the Constitution. There is no specific provision in the Constitution or in any statute that authorizes the President to issue them. The power is presumptively derived from rather vague language about executive authority in Article II of the Constitution. Nevertheless, presidents have been using such instruments since George Washington issued a proclamation on April 22, 1793, declaring the neutrality of the United States in the war between England and France. When such actions are founded on the authority of the President derived from the Constitution or statute, they may have the force and effect of law. (Staff of House Committee on Government Operations, 85th Congress, 1st Session, "Executive Orders and Proclamations: A Study of a Use of Presidential Powers" (Committee Print 1957).]

In 1952, the United States was involved in the Korean War. President Harry Truman sought to mitigate inflationary pressure by creating a Wage Stabilization Board. The United Steel Workers of America threatened a strike that would have imperiled steel production at a time when nearly all military weapons required steel. Truman issued Executive Order 10340 directing the Secretary of Commerce to take possession of and operate most of the nation’s steel plants. The steel companies obeyed the order under protest and brought an action to enjoin the government from enforcing the order. Just two months after President Truman’s order, the Supreme Court ruled the government’s action was unconstitutional.

Justice Black wrote for the majority, opining that the case presented two crucial issues:

First. Should final determination of the constitutional validity of the President’s order be made in this case which has proceeded no further than the preliminary injunction stage? Second. If so, is the seizure order within the constitutional power of the President?”

Justice Hugo Black

The Court held: (1) The injunction was proper because “governmental operation of these going businesses were bound to result in many present and future damages of such nature as to be difficult, if not incapable, of measurement.” That being so, the court was prepared to rule on the constitutional issues presented. (2) The President did not have the inherent authority to seize private property in the absence of either specifically enumerated authority under Article Two of the Constitution or statutory authority conferred on him by Congress.

There were five concurring opinions, and the one written by Justice Jackson, providing a taxonomy of presidential power, is what has made this case so significant. [For example, Michael Stokes Paulsen, in "Youngstown Goes to War," 19 Const. Comment., 215, 217-18 (2002) compared the case to Marbury v. Madison in terms of influence.]

Justice Robert Jackson

Justice Jackson posited three tiers of presidential power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.

2. When the President acts in absence of either a congressional grant or denial of authority, he can rely only upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain [my emphasis].

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

[Justice Jackson viewed President Truman’s action as falling within the third category, as “incompatible with the expressed or implied will of Congress.” Justices Frankfurter, Burton, and Clark agreed.]

Court decisions establishing penumbras, twilight zones, or the like, are inherently ambiguous, and therefore tend to stimulate all sorts of future litigation. Jackson’s framework is a case in point. Significantly, Justice Jackson did not provide much guidance on how to distinguish congressional approval from congressional silence, especially with his designation of some congressional authorization as “implied.” How exactly is approval “implied” and how does one determine the extent to which it exists?

Furthermore, even if a statute indirectly addresses the power in question, “statutory interpretation,” given the notorious inclusion, as here, of ambiguities, penumbras, and zones, can have unanticipated complications. (Justice Jackson suggests, in his concurrence that “…because the President does not enjoy unmentioned powers does not mean that the mentioned ones should be narrowed by a niggardly construction. Some clauses could be made almost unworkable, as well as immutable, by refusal to indulge some latitude of interpretation for changing times.”)

Checks and Imbalances, Ellen Weinstein, illustrator, Harv. L. Bull., Summer, 2011

And finally, Justice Jackson added in his explication of the “zone of twilight” clause, that, when Congress is silent on an issue, “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Although this zone would thus seem to encompass any set of entirely new circumstances, it begs the question of the range or boundaries of congressional silence. As Justice Jackson suggested, applying “flexible tests” to the “zone of twilight” could establish that there are statutory policies consistent with the new actions. Flexibility in determining the extent of prior silence is, however, influenced by the importance of the case and/or the political leanings of the courts.

It has been contended that recent cases may have altered Jackson’s taxonomy. Medellin v. Texas, 128 S. Ct. 1346, 1368 (2008) includes the statement “Justice Jackson’s familiar tripartite scheme provides the accepted framework for evaluating executive action.” However, at least one scholar argues that Medellin along with Hamdan (Hamdan v. Rumsfeld, 548 U.S. 557, 593 n.23 (2006)) actually “effectively eliminat[ed] the ‘zone of twilight.’” See Michael J. Turner, “Fade to Black: The Formalization of Jackson’s Youngstown Taxonomy by Hamdan and Medellin,” Am. U.L. Rev. 58 (3), February 2009: 665-698, 665. Turner reads Hamdan to hold that when Congress and the President disagree, Congress prevails. He further argues that Medellin “establishes a new interpretation of Jackson’s taxonomy by requiring a longstanding practice of congressional acquiescence to a specific executive action before it can exist in the ‘zone of twilight.’”

On the other hand, Edward T. Swaine, in “The Political Economy of Youngstown” (S. Cal. L. Rev., Vol. 83(2), 263, 2010) considers both Hamdan and Medellin proof that the Court is still subscribing to Justice Jackson’s framework!

OctoPOTUS, illustration by Jonathan Burton for U. of Chicago Magazine review of Posner and Vermeule’s book

Eric A. Posner and Adrian Vermeule, in their book The Executive Unbound: After the Madisonian Republic (Oxford University Press, 2011) put forth yet another view. They contend that existing law is “neither here nor there” when it comes to challenges of executive orders. Opposing parties strike out at them when they believe a president is weak and they can prevail, and when the practical effects of reversing an order won’t be worse than letting it stand. What constrains presidents, they argue, is the need for both political legitimacy and political approval. Just as Lincoln refused to take action on slavery until he felt the public would accept it, so too modern presidents have a sense of acceptable norms as well as prevailing political winds. This political savvy, Posner and Vermeule maintain, is at least as important a check on presidential power as any bright line law. As Vermeule explained in an interview with the Harvard Law Bulletin:

A paradox of the presidency: Despite their sweeping legal powers, all modern presidents and their advisers are slaves to opinion polls and other measures of ambient public opinion. Partly this is an effort to anticipate the next round of elections, but it is also an attempt to burnish the president’s legacy and more generally to lead from the front. For the most part, presidents can take the crowd only where it is willing to go.”

Thus, whether or not the “zone of twilight” is still in operation, or somewhere in “The Twilight Zone” may, in fact, be a moot question.

Want to know more? Youtube has a number of videos on the case, including this 2002 interview with Justice William Rehnquist, who was clerking for Justice Jackson at the time the matter came before the Court, and who agrees that public opinion played a role in the decision:

If you want to know more about Executive Orders generally, you can hardly do better than checking The American Presidency Project, available online at a site run by the University of California at Santa Barbara. Among other documents it collects, it provides access to almost the entire collection of Executive Orders, beginning in 1826. The Project also has a nice chart showing how many orders each president has issued. Or, check the Disposition Tables List at the National Archives site, with information about Executive Orders beginning with those signed by FDR, and including the following: Executive Order Number, date of signing by the President, Federal Register volume, page number, and issue date, title, amendments if any, and current status if applicable. (The texts of Executive orders beginning with Executive Order 7316 of March 13, 1936 were required to be published in the Federal Register, and they also appear in the sequential editions of Title 3 of the Code of Federal Regulations (CFR).) In addition, at the National Archives site, there is a subject index beginning with the Clinton Administration.

Not So Great Moments in Supreme Court History: A New Definition of Oppressed Classes

In his marvelous study, Inherently Unequal: The Betrayal of Equal Rights By the Supreme Court, 1865-1903, author Lawrence Goldstone describes how the ruling in the Civil Rights Cases, 109 U.S. 3 (1883), “helped usher in a period of de jure racial discrimination that would last almost a century and was virtually as odious as slavery itself.” But the quality of mercy still dropped from the Court for the “oppressed.” As Goldstone observed:

During the 1870s and 1880s, the Supreme Court had narrowed both the scope of the Fourteenth Amendment and the federal government’s powers to enforce its provisions, all on the altar of federalism, the Tenth Amendment, and the states’ right of ‘police power’. After the ruling in the Civil Rights Cases, the amendment would have virtually no real application in the lives of African-Americans. But by no means would the Fourteenth Amendment fade into oblivion as a constitutional anachronism. Rather, the amendment, particularly its notion of due process, would be given new life by the justices, not as was originally intended, in the protection of the rights of freedmen, but in the affairs of members of that new oppressed class, the American corporation. Beginning almost at the moment the Court decided that the Fourteenth Amendment must give way to the Tenth in cases involving the rights of African-Americans, they began, without a touch of disquiet, to take precisely the opposite view in cases where states attempted to use this newly expanded police power to regulate the activities of businesses, particularly railroads.”

Review of “Devil in the Grove: Thurgood Marshall, the Groveland Boys, and the Dawn of a New America” by Gilbert King

This masterful and riveting non-fiction book is about some of the bravest men in the history of this country. It is a useful corrective to anyone who thought (from reading The Help, for instance) that Jim Crow America wasn’t so bad. Or worse, those who thought that what was described in The Help was as bad as it got!

Gilbert King, who has written about U.S. Supreme Court history for both The Washington Post and The New York Times, argues that by the mid-1940’s, Thurgood Marshall, the grandson of a mixed-race slave, “was engineering the greatest social transformation in American since the Reconstruction era.” With a rhetorical facility (“benighted towns billeting hostile prosecutors”) that transcends the sobering subject matter, King allows you to forget you are reading non-fiction, but he never allows you to forget you are reading a genuine horror story.

Thurgood Marshall and his colleagues in the Legal Defense Fund of the NAACP traveled throughout the South in the 1950’s, trying to fight white supremacy using the weapon of the Constitution. Marshall knew he could not win cases at the local or state level, so his goal became to establish firm grounds for appeals on record. If favorable rulings on equal protection could be obtained in higher courts, these precedents could then be used as additional building blocks for the rights of blacks.

The story of Marshall’s battle is told by a focus on one particular case, that of the Groveland Boys, which was, according to King:

…key to Marshall’s perception of himself as a crusader for civil rights, as a lawyer, willing to stand up to racist judges and prosecutors, murderous law enforcement officials, and the Klan in order to save the lives of young men falsely accused of capital crimes – even if it nearly killed him.”

And he was nearly killed a number of times.

Thurgood Marshall as a young man

The case of the Groveland Boys made national news at the time, and also had a significant impact upon the NAACP’s goals for future litigation. It took place in Florida, a state that somehow escaped the bad reputation attributed to Mississippi, Georgia, or Louisiana even though it had a higher per capital lynching rate. King notes that

In the postwar decade Florida would…prove to be a state with a boundless capacity for racial inhumanity, even by measure of the rest of the South…”

In Groveland, the Klan was populated by lawmen, and blacks had no hope of protection. So it was that when four young black men were arrested for the rape of a young white girl, in spite of the fact that no semen was found in her, or that two of the boys weren’t even in the area that night, a conviction and death penalty for all four boys was a foregone conclusion. Two of the young men were in the area, and they were World War II veterans, the object of particular rancor among white southerners since these veterans no longer were acting subservient enough.

The book describes the horrific events that surrounded this case, including the beatings of suspects and murder of three of them by the sheriff, who managed to remain in office until 1972 when he was finally suspended for kicking to death a mentally retarded black prisoner in his cell; the personal risks with their lives taken by all the defense lawyers; and the jaw-dropping injustice in the courtroom. It also enumerates the pressures on Marshall, who was simultaneously working on arguments for Brown v. Board of Education to be argued before the U.S. Supreme Court. While desperate stays-of-execution were filed in the Groveland Case, Marshall was forced to respond to the Supreme Court’s order that all five of the segregation cases coalesced into Brown v. Board had to be reargued in terms of the statutory intent of the equal protection clause in the Fourteenth Amendment.

It’s an amazing story, and my respect for Marshall increased tremendously as a result of it.

Evaluation: This is a book that should be required reading. This horrifying, edge-of-your-seat tale really happened, and not that long ago. Its repercussions helped make the country what it is today. King, who unearthed FBI files that were under seal for sixty years, has done an outstanding job in telling this story which manages to be heart-breaking, inspiring, infuriating, and admirable all at once.

Rating: 5/5

Published by Harper, an imprint of HarperCollins Publishers, 2012

November 29, 1926 – The Supreme Court Decides Lambert v. Yellowley Et Al.

In Lambert v. Yellowley et. al. , 272 U.S. 581 (1926), the U.S. Supreme Court, by a five to four decision delivered by Justice Louis D. Brandeis, held that the practice of medicine is everywhere subordinate to the exercise of police power by the government. In this case, the medical practice that occupied the attention of the Court was the dispensing of alcohol for therapeutic purposes subsequent to the passage of the Eighteenth Amendment, which had ushered in the era of Prohibition.

After Prohibition took effect on January 17, 1920, it soon became clear that not all Americans felt obliged to stop drinking. Alternative sources of procuring liquor mushroomed, increasing the popularity of physicians, who could legally prescribe “medicinal” spirits or beer for their patients. By June of 1920, more than 15,000 physicians and over 57,000 pharmacists had obtained licenses to dispense liquor.

Prescription forms for medicinal alcohol, via the Rose Melnick Medical Museum

During the 1920 presidential campaign, Republican nominee Warren G. Harding pledged to enforce the Volstead Act (the informal name of the enabling legislation for the Eighteenth Amendment), which prohibited the sale of alcohol “as a fundamental principle of the American conscience,” implying that the Wilson administration had neglected its duty. Once inaugurated, President Harding tried to fulfill his campaign promise. On November 23, 1921, he signed the Willis-Campbell Act, popularly known as the “anti-beer bill”, prohibiting doctors from prescribing any malt liquor for medicinal purposes and severely limited the prescription of wine or beer for such purposes. 
(In early 1923, having become convinced of the importance of personal example, Harding gave up his own clandestine drinking.)

President Warren G. Harding

The medical profession grew alarmed at what it considered to be interference with the practice of medicine, and court challenges proliferated. In 1923, Dean Emeritus of the College of Physicians and Surgeons of Columbia University, Dr. Samuel W. Lambert, obtained a District Court injunction forbidding the local prohibition director from interfering with his prescription of wines and spirits. He claimed that the Willis-Campbell Act had “no real or substantial relation to the appropriate enforcement of the Eighteenth Amendment.” Thus, he argued, Congress had exceeded the powers delegated to it by the Amendment, and thereby violated his fundamental rights as a physician to treat his patients according to his judgment and training.

Justice Brandeis cited evidence that practicing physicians differed on the value of alcohol for medicinal purposes, and that in any event, at least some of the liquor was being diverted to beverage uses. He also disagreed that the Act had no relation to the enforcement of the Eighteenth Amendment, observing:

The opportunity to manufacture, sell and prescribe intoxicating malt liquors for `medicinal purposes,’ opens many doors to clandestine traffic in them as beverages under the guise of medicines; facilitates many frauds, subterfuges and artifices; aids evasion; and, thereby and to that extent, hampers and obstructs the enforcement of the Eighteenth Amendment.”

Justice Louis D. Brandeis

He also spoke about the problems of “craving,” “hardihood,” “fraud,” and “cupidity” – all tending to circumvent the Amendment.

Finally, and most importantly, Brandeis stated,

…there is no right to practice medicine which is not subordinate to the police power of the States, and also to the power of Congress to make laws necessary and proper for carrying into execution the Eighteenth Amendment. When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by some or all of the incidents which attend the exercise by a State of its police power. The Eighteenth Amendment confers upon the Federal Government the power to prohibit the sale of intoxicating liquor for beverage purposes. Under it, as under the “necessary and proper” clause of Article I, § 8 of the Constitution, Congress has power to enforce prohibition “by appropriate legislation.” (272 U.S. 596-7, citations omitted).

Brandeis was joined in his opinion by Chief Justice William H. Taft and Justices Oliver W. Holmes, Willis Van Devanter, and Edward T. Sanford.

Justices George Sutherland, James C. McReynolds, Pierce Butler, and Harlan F. Stone dissented. They argued that the Eighteenth Amendment authorizing the federal government to regulate “the manufacture, sale, or transportation of intoxicating liquors” was expressly limited to those used “for beverage purposes.” To the extent such liquors were used for other purposes (e.g. medicinal purposes), their regulation was beyond authority granted by the Amendment. In their opinion, only the states could regulate the sale of liquor for medicinal purposes.

This case is interesting for several reasons. First, it combined a legal positivism approach to the law with a conservative belief in social control. Robert Post contends that “This fusion disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.” [Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1 (2006)].

Second, one could argue this is another example of the Court relying on the so-called “Brandeis brief” [i.e., as in the landmark case Muller v. Oregon (1908), facts drawn from the publications of medical, physiological, and sociological authorities are given at least as much weight if not more than legal precedents].

And third, the precedent it set continues to be important today with the medical marijuana issue winding its way through the court system.

May 2, 1927 – The U.S. Supreme Court Decided Buck v. Bell

In 2011, a group of legal scholars gathered at Pepperdine School of Law for a symposium on the “most maligned” cases in the history of the U.S. Supreme Court. The group designated Buck v. Bell, 274 U.S. 200 (1927) as one of the five worst [the others being: Dred Scott v. Sandford; Korematsu v. United States; Plessy v. Ferguson; and Erie v. Tompkins]. Buck v. Bell upheld a Virginia law authorizing compulsory sterilization of “feeble minded” persons “for the protection and health of the state.” Ironically, the opinion was written by Justice Oliver Wendell Holmes, Jr., usually considered to be a champion of civil liberties.

Justice Oliver Wendell Holmes, Jr.

Albert Priddy, a eugenics advocate, was superintendent of the State Colony for Epileptics and Feeble-Minded at Lynchburg, Virginia during the 1910s. [Eugenics is a form of selective breeding by which society, not nature, determines who is fit to reproduce.] With encouragement of the colony’s board of directors, Priddy sterilized some seventy-five to one hundred young women without their consent. However, the Virginia legislature had not clearly endorsed sterilization, and after a malpractice lawsuit, Priddy discontinued the operations in 1918. But Priddy was not ready to give up the practice: he and his like-minded associates lobbied the legislature for a clear sterilization law, which was enacted in 1924. (The new legislation was drafted by the Colony’s lawyer.) The statute provided for the sterilization of “mental defectives” and “feeble-minded” persons who were confined to certain state institutions, when, in the judgment of the superintendents of those institutions, “the best interests of the patients and of society” would be served by their being made incapable of producing offspring.

Albert Priddy

In 1924, a Virginia state court adjudged 18-year-old Carrie Buck to be “feeble-minded” within the meaning of the Virginia law and committed her to the Virginia State Colony for Epileptics and Feeble-Minded. Nine months later, Priddy filed a petition to his Board of Directors to sterilize her, stating that although she was 18 years old, her mental age was 9. Priddy maintained that Buck represented a genetic threat to society. Buck’s mother was also considered feeble-minded, and Buck had “immorally” produced an illegitimate feeble-minded child. The institution’s board approved Priddy’s petition after giving Buck notice and the opportunity to be heard at a hearing in which evidence was presented supporting the requested order. (We now know that her alleged “immorality” was the result of a rape, a fact that does not appear in the U.S. Supreme Court opinion. Later historians contend that Carrie’s commitment was an attempt by her family to save their reputation. Moreover, it should also be noted that Buck’s daughter had been officially labeled “feebleminded” at the ripe old age of one month. Carrie herself had attended school only until the sixth grade. Even so, her report cards showed she was not feeble-minded, irrespective of the findings of the Virginia court.)

Buck challenged the statute in the local county Circuit Court. Her suit was filed against Dr. J.H. Bell, who had succeeded Priddy as superintendent.

Dr. J. H. Bell

Buck raised two principle arguments.

First, she argued that the sterilization law violated her substantive due process rights guaranteed by the Fifth and Fourteenth Amendments. Her suit did not challenge the procedures by which Buck was ordered sterilized. Instead, she contended that the due process clause guarantees all adults the substantive constitutional right to procreate and that the Virginia law infringed that right.

Second, she argued that the Virginia law violated the equal protection clause of the Fourteenth Amendment, which guarantees that the law treat similarly situated people alike. The sterilization law failed to provide equal protection because it singled out “feeble-minded” patients at only certain state institutions identified in the statute, but did not apply to “feeble-minded” persons at other state institutions or to “feebleminded” persons who were not committed or confined.

The county court upheld the law and affirmed the sterilization order. Buck appealed to the Virginia Supreme Court of Appeals, which also affirmed.

The Virginia high court said that neither the Equal Protection Clause nor the Due Process Clause were designed to interfere with the state’s police power to prescribe regulations that promote the health, peace, morals, education, and good order of the people.

When the case reached the U.S. Supreme Court, Chief Justice William Howard Taft assigned the job of writing the opinion to Associate Justice Oliver Wendell Holmes Jr., then 86-years old. Holmes began his opinion by detailing the procedural safeguards that supposedly were afforded Buck, though neither Buck nor her representative had taken issue with them. Holmes observed that Buck had received notice of the superintendent’s petition for sterilization, Buck was given the opportunity to appear at a hearing where the propriety of her sterilization was determined based on the evidence presented, and Buck had the right to appeal all the way to the highest court in the United States. Holmes concluded, “so far as procedure is concerned, the rights of the patient [we]re most carefully considered” and that as the order was entered “in scrupulous compliance with the statute and after months of observation, there is no doubt that, in that respect, the plaintiff in error has had due process of law.” As we will see later, the procedures actually followed would not pass muster today, and probably would not have satisfied the Court then if it had been aware of their deficiencies.

Carrie Buck

Holmes next addressed Buck’s substantive due process claim that she had a constitutional liberty to procreate. “Carrie Buck is a feebleminded white woman …. She is the daughter of a feeble-minded mother … and the mother of an illegitimate feeble-minded child,” Holmes wrote. Then Holmes compared Buck’s sacrifice of procreative freedom to the sacrifice other U.S. citizens make when called into military duty:

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.”

Holmes noted that once sterilized, Buck could be released from the institution to become a productive member of society. He then said, “It is better for the entire 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.” He concluded his argument with the now infamous rhetorical flourish, “Three generations of imbeciles are enough.”

Holmes then neatly dodged the equal protection argument by stating “so far as the [institution's] operations enable those who otherwise must be kept confined to be returned to the world, and thus open the asylum to others, the equality aimed at will be more nearly reached.” In other words, if we sterilize these people fast enough, then turn them loose, there will be enough room in the institutions to round up the rest of them.

Justice Pierce Butler dissented, but did not file an opinion.

On October 19, 1927, Dr. Bell sterilized Carrie Buck. Buck was paroled following the procedure, but remained under the control of the Colony and was forced to make annual medical visits to Dr. Bell. Her marriage to William Eagle after she left the colony lasted for twenty-five years, until his death.

Although compulsory sterilization is now seen as an abuse of human rights and eugenics is a discredited science, Buck v. Bell was never overturned, and Virginia did not repeal its sterilization law until 1974.

On May 2, 2002, the seventy-fifth anniversary of the Buck decision, Virginia governor Mark Warner apologized for Virginia’s eugenics program, calling the movement “a shameful effort in which state government never should have been involved.” A state historical highway marker was dedicated to Buck v. Bell in Charlottesville on that day.

Modern historians and legal scholars have criticized Holmes’s opinion for being unenlightened and unduly harsh, pointing to portions of the opinion where Holmes assumed that disabled persons were not among the “best citizens,” that the “degenerate offspring” of “feeble-minded” persons would either become criminals or starve, and that unless such persons were sterilized society would become swamped by incompetence.

In Holmes’s defense, the Virginia sterilization law was written by a democratically elected state legislature, and its judgment was entitled to some deference. Moreover, compulsory sterilization was part of the Eugenics Movement, a popular but paternalistic reform movement that was based on the premises that the “lower classes” were too ignorant to practice birth control or otherwise take care of themselves and that eradicating “feeble-minded” persons from the population was humane.

Subsequent historians have also criticized the results of the case on grounds of which the Supreme Court was not aware. In fact, the procedural due process with which the case was conducted was quite tainted. It turns out that Carrie’s lawyer, Irving Whitehead, was on the Board of Directors for the Virginia State Colony of the Feeble Minded. Furthermore, he was a major supporter of sterilization and of Dr. Albert Priddy. Paul Lombardo, whose book Three Generation, No Imbeciles: Eugenics, The Supreme Court and Buck v. Bell (Johns Hopkins University Press, 2008) tells the story behind this trial, reports that “following his failure at trial, Whitehead secretly met with Priddy and the Board and voiced satisfaction that the case was proceeding as planned.”

Attorney Irving Whitehead

While the Supreme Court was unaware of Buck’s fraudulent representation, it too had biases. The Supreme Court Chief Justice, William Howard Taft was himself an active member of the national eugenics movement. Lombardo indicates that “[Taft] encouraged Justice Holmes to write an opinion that concentrated on the Buck family’s inherited defects.”

The Buck case had international repercussions. Hitler’s 1933 law “For the Prevention of Hereditarily Diseased Offspring” resulted in more than four thousand sterilizations; at the Nuremberg trials, Nazi doctors read from the Buck opinion, claiming the U.S. precedent as a defense.

But compulsory sterilization laws remained in force.

In 1942, the U.S. Supreme Court declared it unconstitutional to sterilize persons as a punishment for a crime on grounds that “[m]arriage and procreation are fundamental to the very existence and survival of the race.” Skinner v. State of Oklahoma, ex. Rel. Williamson, 316 US 535 (1942). But other reasons for this practice were not affected by this decision.

What was the rationale of people who supported compulsory sterilization? Two main arguments were offered in support of this policy. One was the desire to remove problematic behavior from the social environment (and “to prevent our being swamped with incompetence” as Justice Holmes put it). The second was to reduce social costs imposed by the unfit on the fit.

According to a history of involuntary sterilization in the United States by Philip Reilly (who is a lawyer, physician, and author of Genetics, Law and Social Policy (Reilly 1977), “from 1900 to 1960, more than 60,000 mentally ill or mentally retarded adults in the United states were sterilized without their consent for eugenic reasons.” (Philip R. Reilly, The Surgical Solution: A History of Involuntary Sterilization in the United States, Baltimore, MD: Johns Hopkins Univ. Press, 1991). The Oregon Board of Eugenics, later renamed the Board of Social Protection, existed until 1983, with the last forcible sterilization occurring in 1981.

Forced sterilization has now been recognized as a crime against humanity if the action is part of a widespread or systematic practice by the Rome Statute Explanatory Memorandum, which defines the jurisdiction of the International Criminal Court.

Review of “Scorpions” by Noah Feldman

Harvard Law professor Noah Feldman has given us a thoroughly researched, well written, solid analysis of the inner workings of the U.S. Supreme Court during the time it was dominated by four appointees of Franklin D. Roosevelt. The appointees, the Scorpions of the title, all began as supporters of FDR’s New Deal, and thus putative “liberals.” However, over two decades on the Court their perspectives matured and diverged, and they became rivals for intellectual leadership in constitutional scholarship. Their rivalry in some case even became personal detestation.

Feldman’s account includes short, revealing mini-biographies of each subject jurist. Felix Frankfurter was an ebullient Jew [“an interesting little man but very jew” in the exact words of Eleanor Roosevelt] who began as America’s leading liberal intellectual, but evolved into its most famous judicial conservative. Hugo Black was a former Ku Klux Klansman who became a vigorous advocate of free speech and civil rights. Robert Jackson was a backcountry lawyer in Upstate New York who later became chief prosecutor in the Nuremberg trials. William O. Douglas at first sought to use his appointment to the Court as a stepping stone to the presidency, but stymied in that pursuit, expanded individual freedom “beyond what anyone before had dreamed.”

Justice Felix Frankfurter

The most pressing legal issue in FDR’s presidency was the constitutionality of various New Deal programs. Many of those programs infringed on the “liberty of contract” [such as the “liberty” to go to work at age 12 or work more than 60 hours per week in menial jobs] enunciated in the 1905 decision, Lochner v. New York. Although each individual’s “liberty” is expressly protected by the 14th Amendment, nowhere in the Constitution does the term “liberty of contract” appear. The first eight cases on the constitutionality of New Deal legislation to reach the Court resulted in 5-4 decisions against the statutes. Feldman reprises the oft-told tale of FDR’s court packing scheme; how testimony by Jackson (then Solicitor General) before Congress supported the plan; how Frankfurter opposed it; and how a change in opinion by Justice Owen Roberts obviated the scheme by providing the Court with a 5-4 majority to overrule Lochner. Ultimately, it was Frankfurter’s doctrine of “judicial restraint,” giving substantial credence to the acts of the legislature, which carried the day.

Justice Hugo LaFayette Black

Feldman deftly traces the evolution of various legal doctrines through seminal decisions rendered by the Court from the late 1930’s through the mid 1950’s. We watch a Court willing to allow the internment of Japanese citizens during World War II evolve into the champion of civil rights that outlawed racial segregation in schools in Brown v. Board of Education. Feldman’s analysis is worthy of a law review article, yet his style and diction make the material accessible to the lay man.

Non-lawyers who may not enjoy legal analysis will still be interested in Feldman’s description of the clash of personalities that produced the epic decisions:

“Frustration bred contempt. From allies sipping champagne to celebrate one another’s joining the Court, Black, Frankfurter, Douglas, and Jackson had formed camps and become bitter enemies. Frankfurter despised Douglas, whom he called one of the ‘two completely evil men I have ever met….’ Frankfurter called Douglas, Black, and Murphy [another justice] ‘the Axis.’ One-upping Frankfurter, Douglas called him ‘Der Fuehrer.’ The hatred between Black and Jackson ran so deep that it threatened to ruin the reputations of both men. The friendship between Frankfurter and Jackson seemed to depend more on disdain for Douglas and Black than any closer connection. Douglas and Black voted together but were not intimate friends. For them, common ground meant revulsion for Frankfurter and Jackson.

Justice Robert Jackson

Feldman’s account of the machinations behind making the Brown opinion unanimous is particularly compelling. When the case first came before the Court, three justices (all southerners), including Chief Justice Fred Vinson, believed that the old “separate but equal” doctrine enunciated in Plessy v. Ferguson was the correct interpretation of the Constitution. Frankfurter knew that to rule segregated public facilities were unconstitutional would effect a social revolution, and so it required as strong and forceful opinion by the Court as possible. A 6-3 decision would not project the gravitas necessary to produce willing compliance, particularly in the South. After the oral argument, he persuaded a majority of the Court to defer decision and to require a re-argument the following year. This ploy gave him time to try to convert the other justices to his views.

Justice William O. Douglas

Remarkably, before the second oral argument, Vinson died of a heart attack. Frankfurter never liked Vinson, and told a former law clerk, “[T]his is the first solid piece of evidence I’ve ever had that there really is a God.” President Eisenhower then appointed Earl Warren, a consummate politician and a strong supporter of civil rights, as Chief Justice.

Even with Warren in the camp to overturn Plessy, the battle for a unanimous opinion was far from over. Frankfurter himself had to overcome his own judicial philosophy of judicial restraint. Jackson saw nothing in the constitutional text or precedent history to make segregation unconstitutional. Accordingly, he favored frank recognition that the court was making new law despite history and precedent, a position with which none of his colleagues would agree. He, however, fell ill and finally was browbeaten by Warren to join the unanimous opinion. A combination of Frankfurter’s cogent arguments and Warren’s cajoling induced the two remaining southern judges to join the rest of the court to make the opinion unanimous. The resulting opinion, although unanimous, is something of a hodge-podge of rationales. Nevertheless, it is usually considered the most important Supreme Court case of the 20th Century.

Evaluation: There is much more to this splendid book than my review can cover in a reasonably short space. I recommend it strongly for lawyer and layman alike.

Rating: 4.5/5

June 4, 1923 – The Supreme Court Decides Meyer v. Nebraska

In Meyer v. Nebraska, 262 U.S. 390 (1923), the U.S. Supreme Court held that a 1919 Nebraska law prohibiting the teaching of foreign languages to school children before high school violated the Due Process clause of the Fourteenth Amendment. This case is 14th on the list of most frequently cited U.S. Supreme Court cases.

Robert T. Meyer, the Plaintiff, an instructor in Zion Parochial School, was tried and convicted in the District Court for Hamilton County, Nebraska, for violating a state statute that forbade teaching “any subject to any person in any language other than the English language” by reading in German to a ten-year-old child. The statute further prohibited teaching foreign languages per se to any pupil who had not yet “attained and successfully passed the eighth grade.” The statute had been enacted during the First World War, ostensibly as an act of the police power of the state during “an emergency.”

The Nebraska Supreme Court affirmed the lower court, finding the statute to be a valid exercise of a state’s police power. The State Supreme Court wrote: “To allow the children of foreigners, who had emigrated here, to be taught from early childhood the language of the country of their parents was to rear them with that language as their mother tongue. It was to educate them so that they must always think in that language, and, as a consequence, naturally inculcate in them the ideas and sentiments foreign to the best interests of this country.”

Justice James C. McReynolds

Meyer appealed to the U.S. Supreme Court, which invalidated the statute as applied. Justice James C. McReynolds, articulated the principal issue before the Court thusly:

The problem for our determination is whether the statute, as construed and applied, unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. “No State shall . . . deprive any person of life, liberty, or property, without due process of law.”

He commented, “While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint, but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.” This specific enumeration was one of the first and most articulate explications of just what liberties were protected by the general language of the Amendment.

Was teaching or learning a foreign language one of these liberties? And if so, could it be abridged by the state’s exercise of its police power? McReynolds wrote:

That the State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected. The protection of the Constitution extends to all, to those who speak other languages as well as to those born with English on the tongue. Perhaps it would be highly advantageous if all had ready understanding of our ordinary speech, but this cannot be coerced by methods which conflict with the Constitution — a desirable end cannot be promoted by prohibited means.”

He added: “We are constrained to conclude that the statute as applied is arbitrary and without reasonable relation to any end within the competency of the State.”

Further, Justice McReynolds denied that any “emergency” still prevailed that would justify the proscription of teaching a child some language besides English: “no adequate reason therefor in time of peace and domestic tranquility has been shown.”

Justices Oliver Wendell Holmes and George Sutherland dissented, finding a valid exercise of the police power. Justice Holmes wrote: “We all agree, I take it, that it is desirable that all the citizens of the United States should speak a common tongue, and therefore that the end aimed at by the statute is a lawful and proper one. The only question is whether the means adopted deprive teachers of the liberty secured to them by the Fourteenth Amendment. It is with hesitation and unwillingness that I differ from my brethren with regard to a law like this, but I cannot bring my mind to believe that, in some circumstances, and circumstances existing, it is said, in Nebraska, the statute might not be regarded as a reasonable or even necessary method of reaching the desired result. The part of the act with which we are concerned deals with the teaching of young children. Youth is the time when familiarity with a language is established and if there are sections in the state where a child would hear only Polish or French or German spoken at home, I am not prepared to say that it is unreasonable to provide that, in his early years, he shall hear and speak only English at school. But, if it is reasonable, it is not an undue restriction of the liberty either of teacher or scholar. No one would doubt that a teacher might be forbidden to teach many things, and the only criterion of his liberty under the Constitution that I can think of is “whether, considering the end in view, the statute passes the bounds of reason and assumes the character of a merely arbitrary fiat.” [Citations omitted.] I think I appreciate the objection to the law, but it appears to me to present a question upon which men reasonably might differ, and therefore I am unable to say that the Constitution of the United States prevents the experiment’s being tried.”

Curiously, Justice Holmes agreed with the majority in a companion case insofar as it held a provision of an Ohio statute directed solely at the German language was unconstitutional.

The Far Reaching Impact of This Case

Meyer, along with Pierce v. Society of Sisters (1925), is often cited as one of the first instances in which the U.S. Supreme Court asserted the doctrine of substantive due process in the area of civil liberties. Justice Kennedy has speculated that both of those cases might have been decided under different rationales today: “Pierce and Meyer, had they been decided in recent times, may well have been grounded upon First Amendment principles protecting freedom of speech, belief, and religion.” (United States v. Caroline Products Co., providing a rationale for substantive due process for civil liberties, was not decided until 1938. See our analysis of that famous case here. )

Current Supreme Court practice avoids reliance on the Due Process Clause where a more specific provision (such as the First Amendment) is applicable. Famed Yale constitutional scholar Charles Black would agree with the McReynolds enumeration of rights, but would assert those rights under the “privileges and immunities” clause rather than the due process clause of the Fourteenth Amendment.

Meyer has received notoriety far beyond its limited holding. The laundry list of rights covered by the 14th Amendment first articulated by McReynolds served as the basis for later cases to expand that list through analogy. For example, the Court found a limited right to privacy that included the right to access to contraceptives in Griswold V. Connecticut.

The right to marry, specifically mentioned by Justice McReynolds, has been cited frequently by advocates of gay rights to be a basic human right, available to all people, regardless of sexual preference.

This case is also is often cited in matters involving the movement for bilingualism in the schools and courts, given the vast numbers of Spanish-speaking immigrants now living in the United States.

More recently, the principle of Meyer has been used to augment decisions based on First Amendment rights, ruling that the suppression of books by a school board deemed “anti-American” violates the Constitutional right not to have prescribed “what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” (“Our precedents have long recognized certain constitutional limits upon the power of the State to control even the curriculum and classroom.” Board of Education v. Pico, 457 U.S. 873, 1982)

As Laurence Tribe notes in American Constitutional Law (2nd Ed, p. 1318):

Both Meyer v. Nebraska and Pierce v. Society of Sisters (268 U.S. 510 in 1925) [Justice McReynolds was the author of the majority opinions in both cases] nearly always cited in tandem, have remained durable and fertile sources of constitutional doctrine concerning the nature of liberty, the respective rights of social institutions, and the limits of governmental power to homogenize the beliefs and attitudes of the populace. The cardinal principle animating the Court’s decisions, despite the expected bow to liberty of contract, was that the state had no power to ‘standardize its children’ or ‘foster a homogeneous people’ by completely foreclosing the opportunity of individuals and groups to heed the music of different drummers.”