Few Supreme Court justices have been more widely praised for the quality of their writing than Progressive hero Oliver Wendell Holmes, Jr., who sat on the Court from 1902 to 1932. Yet as author and arts critic Terry Teachout recently pointed out, while Holmes may be "the only American jurist whose opinions are by way of being great literature," the "beauty of his style sometimes lent undeserved force to deeply problematic views." For evidence, look no further than Holmes' infamous majority opinion in Buck v. Bell, which upheld the forced sterilization of a young woman and ended with the judgment "Three generations of imbeciles are enough." As Teachout writes:
I always remember the fate of Carrie Buck whenever I hear a judge praised for the literary artfulness of his opinions. I yield to no one in my admiration for what Walter Lippmann called "the grand style" of Justice Holmes' writings. His was a great personality, one fully worthy of having been enshrined in the pages of Patriotic Gore, and it shines through every opinion that he wrote. But I squirm at the thought that the pith and vigor of his style may have increased the willingness of his fellow justices to order the eugenic sterilization of a teenage girl on wholly specious grounds.
Last year I interviewed legal historian Paul A. Lombardo about his superb book Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell. Lombardo met Carrie Buck shortly before she died in 1983, and he told me there was absolutely nothing abnormal or imbecilic about her. Here's what Lombardo had to say about Holmes:
Q: Justice Holmes' ruling shows incredible deference to the state.
A: It's the most blunt kind of statism. If we can draft you into the Army, he suggests, then we ought to be able to sterilize you. We execute criminals; why can't we sterilize these people in the asylums? He says, well, we've endorsed the idea of vaccinating people in the time of smallpox epidemics. If we can vaccinate them, we ought to be able to sterilize them. He says it's not too much of a leap from doing a vaccination to cutting the fallopian tubes, as if these two things were somehow equivalent. So Holmes does really break new ground in terms of a radical definition of state power.
[Via Walter Olson]