The Supreme Court Ruling That Led To 70,000 Forced …

DAVID BIANCULLI, HOST:

This is FRESH AIR. I'm David Bianculli, editor of the website TV Worth Watching sitting in for Terry Gross. One of the worst Supreme Court decisions in history, according to our guest journalist Adam Cohen, was the 1927 decision upholding a state's right to forcibly sterilize a person considered unfit to procreate - unfit because they were deemed to be mentally deficient. That decision is part of a larger chapter of American history in which the eugenics movement was behind preventing so-called mentally deficient people from procreating through not allowing them to marry, sterilizing them and segregating them in special colonies.

The Nazis borrowed some ideas from American eugenicists. The eugenics movement also influenced the 1924 Immigration Act, which was designed in part to keep out Italians and Eastern European Jews. Adam Cohen's book titled "Imbeciles" is about the eugenics movement in the early 20th century and the Supreme Court case legalizing sterilization. Cohen is a former member of The New York Times editorial board and a former senior writer for Time magazine. Terry Gross spoke to him last year when his book was first published. It's just come out in paperback.

(SOUNDBITE OF ARCHIVED BROADCAST)

TERRY GROSS, HOST:

Adam Cohen, welcome to FRESH AIR. Let's start with what the eugenicists believed.

ADAM COHEN: They embraced the new genetics that was emerging in their era. And they believed that it could be used to perfect the human race. The word eugenics was actually coined by Francis Galton, who was a half-cousin of Charles Darwin, and it really derived a lot from Darwinian ideas. The eugenicists looked at evolution and survival of the fittest as Darwin was describing it. And they believed, we can help nature along if we just plan who reproduces and who doesn't reproduce.

GROSS: And who was considered unworthy of reproducing?

COHEN: Well, at the beginning, Galton looked at geniuses throughout history and looked to see if genius was genetic within families. And he believed that it was. But overtime, eugenics expanded quite a bit. And by the time it got to America, there were all kinds of categories of people who were deemed to be unfit, including people who were deaf, blind, diseased, poor was a big category, indolent.

So it was really in the eye of the beholder. People looked around, and they saw human qualities they didn't like, and they thought, we can really breed these out.

GROSS: And you left out feebleminded. What did feebleminded mean?

COHEN: Yes, feebleminded was really the craze in American eugenics. There was this idea that we were being drowned in a tide of feeblemindedness, that basically unintelligent people were taking over, reproducing more quickly than the intelligent people. But it was also a very malleable term that was used to define large categories of people that, again, were disliked by someone who was in the decision-making position. So women who were thought to be overly interested in sex - licentious - sometimes deemed feebleminded. It was a broad category. And it was very hard to prove at one of these feeblemindedness hearings that you were not feebleminded.

GROSS: So what sent you back to this unfortunate chapter of American history?

COHEN: Well, when I was in law school, I had heard of the case Buck v. Bell from 1927 when the Supreme Court upheld eugenic sterilization. But it wasn't formally taught in at least my class. And it's not taught in many Constitutional Law classes. But, you know, we knew it existed. And we knew the famous phrase that Justice Oliver Wendell Holmes wrote in the decision - three generations of imbeciles are enough. When I was thinking about something I wanted to write about, I was interested in the Supreme Court, but in many ways, I believe you can learn more about an institution and more about an ideal like justice if you look at where it's gone wrong rather than where it's gone right. And in any list of Supreme Court decisions that are terribly wrong, any list of the worst Supreme Court decisions, Buck v. Bell would have to rank very highly.

GROSS: And we'll get to more about that a little bit later. I want to get to the Nazis because I was dismayed to read that the Nazis actually borrowed from the U.S. eugenics sterilization program. What did the Nazis take from us?

COHEN: Well, we really were on the cutting edge. We were doing a lot of this in the 1910s and 1920s. Indiana adopted a eugenic sterilization law - America's first - in 1907. We were writing the eugenics sterilization statutes that decided who should be sterilized. We also had people who were writing a lot of, you know, what might be thought of as pro-Arian theories. So you have people like Madison Grant who wrote a very popular book called "The Passing Of The Great Race," which really talked about the superiority of Nordics, as he called them, and how they were endangered by all the brown people and the non-Nordics who were taking over.

A lot of those ideas were really precursors to Nazism. And also, people forget now, but there was - you know, there was some strong pro-Nazi sentiment in the United States before World War II. In New York, there were pro-Nazi rallies. In some intellectual circles it was not uncommon to find people who actually espoused Nazism. So one of the characters in my book, Harry Laughlin, who ran the Eugenics Record Office on Long Island, a guy who grew up in Missouri, a one-time agriculture professor, he was pro-Nazi. He corresponded with Nazi scientists. And he wrote with pride in his eugenic journal that the Nazis were looking to his model statute and American eugenics to plan their racial program.

GROSS: When immigration is such a contested issue, it's very interesting to learn - 'cause I didn't know this - that the immigration law of 1924 is connected to the eugenics movement. What was the law and how was it connected to eugenics?

COHEN: Yeah, so the 1924 law really changed American immigration dramatically whereas in the old days, people would pretty much just show up at Ellis Island. The people who supported the Immigration Act of 1924 wanted to maintain the racial composition of the United States, so they imposed national quotas, which actually set the immigration from different countries on what that country's percentage of the population was in 1890. And the idea was that was a time when there were a lot of, you know, so-called Nordics in the United States.

So by imposing these national quotas, more people would come in from places like England and fewer would come in from Eastern Europe and Italy. And a big concern was, for these folks, the immigration of particularly Eastern European Jews and Italians. And the degree to which eugenics was just squarely in the discussion of the Act was rather shocking. One of the villains of my book, Harry Laughlin, not only testified repeatedly about eugenics while Congress was considering the law, but he was actually appointed expert eugenics agent by Congress. And when I was looking through his papers in Missouri, there was letterhead - the U.S. Immigration Committee. It said, Harry Laughlin, Expert Eugenics Agent - kind of chilling.

GROSS: So were Jews from Eastern Europe and Italians considered mentally deficient?

COHEN: They were. And there was a lot of bogus science at the time. And there was one well-publicized study that purported to find that between 40 and 50 percent of Jews who were arriving from Eastern Europe at Ellis Island were feebleminded. And it's really shocking to go back and read the way in which people wrote about immigrants in those times, and it definitely does parallel things going on today, but even harsher rhetoric.

You know, so someone like Madison Grant, this popular eugenics writer, the way he wrote about walking around his beloved city of New York and seeing these Polish Jews walking down the street in their, you know, ugly Polish-Jewish clothing and knowing that they were trying to join our society and marry our women, it was really - it was very crude and it was a great fear at the time. And, you know, one place in which this is reflected is in the book, "The Great Gatsby," which, you know, unfolds in the 1920s. Tom Buchanan, who is Daisy Buchanan's husband, at one point at a luncheon just goes off about how he's reading this great book, which appears to be a reference to one of these two best-sellers of the time, and he says that he, you know, he's shocked to see that, you know, all these colored people are rising up around the world and they're going to swamp the white race. This was a real fear of the middle and, particularly, upper classes at the time.

GROSS: So the immigration law of 1924, which should we say limited or prevented Jews and Italians from immigrating?

COHEN: Limited extremely. So there were some but the numbers fell so dramatically.

GROSS: OK. So that law was passed just in time for the Holocaust. So how did that come into play and therefore how did eugenics come into play in preventing Jews from seeking safe haven in the U.S. during the Holocaust?

COHEN: It absolutely did prevent many Jews from coming to America at the time. Under the old immigration laws, where it was pretty much, you know, show up, they would've been able to immigrate. But suddenly they were, you know, trapped by very unfavorable national quotas. So this really was a reason that so many Jews were turned away. And one very poignant aspect of it that I thought about as I was working on the book is in the late '90s, some correspondence appeared - was uncovered - in which Otto Frank was writing repeatedly to the State Department begging for visas for himself and his wife and his two daughters, Margot and Anne, and was turned down and that was because there were now these quotas in place. And if they had not been, it seems clear that he would've been able to get a visa for his whole family, including his daughter, Anne Frank.

So when we think about the fact that Anne Frank died in a concentration camp, we're often told that it was because the Nazis believed that Jews were genetically inferior, that they were lesser than Aryans. That's true, but to some extent, Anne Frank died in a concentration camp because the U.S. Congress believed that as well.

GROSS: That's just chilling. So in talking about that 1924 immigration law, were Asians included too?

COHEN: Yeah. Well, it - you know, the national quota...

GROSS: Or I should say excluded too (laughter).

COHEN: Yeah. Well, the national quota did not work out well for them 'cause there were so few around in 1890. And on the West Coast, it was actually a big issue. So Asians were another target.

GROSS: And what did the eugenicists have to say about Asians?

COHEN: Yeah, you know, not Nordic types, so not good.

GROSS: If you're just joining us, my guest is journalist Adam Cohen. We're talking about his new book, "Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck." We'll talk more about the eugenics movement here in the U.S. after we take a short break. This is FRESH AIR.

(SOUNDBITE OF THE WESTERLIES SONG, "PLEASE KEEP THAT TRAIN AWAY FROM MY DOOR")

GROSS: If you're just joining us, my guest is Adam Cohen. We're talking about a very disturbing chapter in American history, the chapter of the eugenics movement early in the 20th century. His book is called "Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck."

So the eugenicists were partly behind the 1924 Immigration Law. There were laws that prevented people from marrying if they were deemed hereditarily unworthy. There were laws that allowed people considered feebleminded to be isolated in institutions in the U.S. What was the logic behind institutionalizing people who were deemed feebleminded?

COHEN: Well, the eugenicists saw two threats to the national gene pool. One was the external one, which they were addressing through immigration law. The other was the internal one, what to do about the people who were already here. And they had a few ideas. The first eugenics law in the United States was passed in Connecticut in 1895. And it was a law against certain kinds of marriages. They were trying to stop certain unfit people from reproducing through marriage. It wasn't really what they wanted, though, because they realized that people would just reproduce outside of marriage.

So their next idea was what they called segregation. The idea was to get people who were deemed unfit institutionalized during their reproductive year, particularly for women, keep them there, make sure that they didn't reproduce. And then women were often let go when they had passed their reproductive years 'cause they were no longer a threat to the gene pool. That had a problem, too, though. And the problem was that it would be really expensive to segregate, institutionalize, the number of people the eugenicists were worried about.

One of my villains in the book, Harry Laughlin, gave a major address in which he said that to get rid of the, you know, the one-tenth of the country that he was worried about, as many as 15 million people would have to be sterilized. So you couldn't put 15 million people in institutions. They understood that it just wasn't economically feasible. So their next idea was eugenic sterilization. And that allowed for a model in which they would take people in to institutions, eugenically sterilize them, and then they could let them go because they were no longer a threat. So that's why eugenic sterilization really became the main model that the eugenicists embraced and that many states enacted laws to allow.

GROSS: And this was involuntary sterilization. What were the techniques that were used to sterilize men or women?

COHEN: Yeah, you know, for men, it was something like a vasectomy. For women, it was a salpingectomy, where they cauterized the path that the egg takes towards fertilization. It was not - in the case of women - not minor surgery. And when you read about what happened, you know, it's many, many days of recovery and, you know, it had certain dangers attached to it. And, you know, a lot of the science was still quite new.

GROSS: When you think of what surgery was like in the 1920s and the risk of infection, that's - it's so risky, you know, even beyond the - just the wrongness of forcibly sterilizing people, to subject them to surgery and the possibility of terrible infections just seems so - it's just so horrible that our government did that.

COHEN: It seems horribly invasive. And when you add on to all that the fact that in many, many cases the women involved were not told what was being done to them. They might be told that they were having an appendectomy. Or - you know, they weren't being told that the government has decided that you are unfit to reproduce and we're then going to have surgery on you. So that just compounds the horror of the situation.

GROSS: This was an era when birth control was still controversial but was before the era where abortion was legalized. Abortion is such a lightning rod issue now in the United States and it has been for decades. So one of the major groups that opposes abortions, of course, is the Catholic Church. Where was the Catholic Church on the issue of forced sterilization?

COHEN: Well, you know, the Catholic Church was actually fairly heroic on this issue. And conservatives often point to the eugenics era as one where they feel, you know, they got it right. And when it reaches the Supreme Court, the only dissenting justice in the case of Buck v. Bell is the only Catholic on the court. So at a time when, you know, it's hard to imagine, but there weren't public interest groups that were looking out for the interests of women, of institutionalized people.

A lot of the progressives of the era, including Teddy Roosevelt, Louis Brandeis, the great progressive justice and even people associated with the fledgling ACLU, American Civil Liberties Union, they supported eugenics. So it was really a situation where there were almost no advocates for the women involved. The Catholic Church was one because they believed that - not only did they believe in reproduction, but they believed that people should be judged by their souls, not by these attributes that the eugenicists were so focused on. And in many states, when there was a eugenic sterilization bill before the legislature, the people who showed up to oppose it were Catholics, they were priests, they were nuns. And there were states like Louisiana with high Catholic populations where eugenic sterilization laws were voted down really because of the Catholic Church.

GROSS: Carrie Buck was chosen to be the subject for a test case for a Virginia law allowing forced sterilization of people considered feebleminded. And that case made it to the Supreme Court. It's this case that's the main focus of your book. And it resulted in a decision that allowed states to forcibly sterilize people deemed feebleminded. Why was a test case in Virginia considered necessary?

COHEN: In other states, they just passed laws and began sterilizing people. But one of the characters in my book, a lawyer named Aubrey Strode, really prevailed upon the Virginia hospitals to say you shouldn't sterilize anyone until we know that it's constitutional. And under his legal advice, that's what everyone agreed. So they decided that they would set up a test case, get it into the Virginia court system and, you know, hope that it went as high as the U.S. Supreme Court to get judicial approval for their law.

GROSS: So the person chosen as the plaintiff was Carrie Buck. She was, at the time - an inmate I think is the right word - an inmate of the Colony for Epileptics and the Feebleminded. What was this colony and why were epileptics and the, quote, "feebleminded" pooled together?

COHEN: Well, it started as an epileptic colony. In a few years, they expanded it to add feebleminded because they had so many people who were being designated feebleminded and they didn't really have a great place to put them all. And a lot of the hospitals were getting crowded. And at the time, there was this idea that, for both epileptics and the feebleminded, if you put them out in the country in a farm-like setting, gave them chores, that the fresh air would help with their recovery, although really no one was recovering.

GROSS: So why was Carrie Buck in this institution?

COHEN: Well, it's a terribly sad story. She was a little girl who was being raised by a single mother in poverty in Charlottesville - sometimes on the streets of Charlottesville. She got taken in by a foster family that wanted to help her to a better life or so it seemed. But they actually made her do all the work and didn't treat her very well. And she wasn't allowed to call her foster parents Mother and Father. And then eventually, she's raped by a nephew of the family and is pregnant out of wedlock.

At the time, that was a huge scandal in and of itself. And then when you add in the fact that if the facts came to light, their nephew could be prosecuted for a very serious crime, the foster family decided to have a feeblemindedness hearing for Carrie Buck and to testify that she was actually they said both epileptic and feebleminded - although, you know, total lies. She was not epileptic and never had a seizure. And everyone sort of agreed towards the end of her life that she had never been epileptic. She also wasn't feebleminded. She was doing well in school until her foster family took her out of school it appears because they wanted her to do more work around the house and to let her out to neighbors to do their housework as well.

So this is this poor young woman, really nothing wrong with her physically or mentally, a victim of, you know, a terrible sexual assault. And there's a little hearing. She's declared feebleminded. And she gets sent off to the Colony for Epileptics and Feebleminded, where as it happens, her mother, who probably was also not feebleminded, was already an inmate.

BIANCULLI: Adam Cohen speaking to Terry Gross last year. His book "Imbeciles" is now out in paperback. After a break, we'll hear more about the 1927 Supreme Court decision that includes the now-infamous line, three generations of imbeciles are enough. And film critic David Edelstein will review the new movie "Wilson" starring Woody Harrelson. I'm David Bianculli, and this is FRESH AIR.

(SOUNDBITE OF MUSIC)

BIANCULLI: This is FRESH AIR. I'm David Bianculli in for Terry Gross back with more of Terry's 2016 interview with Adam Cohen. His book "Imbeciles" is now out in paperback. It's about the American eugenics movement and the 1927 Supreme Court decision upholding a state's right to forcibly sterilize people considered mentally deficient so that they wouldn't reproduce and degrade America's gene pool.

The plaintiff in the case was Carrie Buck, a young woman who was taken in by a foster family that didn't treat her well. When Buck was 17, she became pregnant after being raped by one of the family's nephews. Her foster parents asked for a hearing to have her sterilized. They testified that she was feebleminded and epileptic. Although Buck was neither, she was sent to a special colony.

(SOUNDBITE OF ARCHIVED BROADCAST)

GROSS: So Carrie Buck is sent to this colony for epileptics and the feebleminded. And after - I guess after she gives birth because she's pregnant during her hearing...

COHEN: Yes, yes...

GROSS: After she gives birth, she's sterilized.

COHEN: Yes. Actually, her foster family ends up taking her child and raising it as their own. And then when she's at the colony, the guy who's running the colony, Dr. Albert Priddy, is on the prowl. He's looking for someone to put at the center of this test case that they want to bring. So he's looking for someone to sterilize. And he sees Carrie Buck when she comes in. He does the examination himself. And there are a lot of things about her that excite him. She's deemed to be feeble-minded. She has a mother who's feebleminded. So that's good because you can show some genetics. And then they're hoping that the baby could be determined to feebleminded, too. Then you could really show a genetic pattern of feeblemindedness.

The fact that she had been pregnant out of wedlock was another strike against her. So he fixes on her and thinks, Carrie Buck is going to be the perfect potential plaintiff. And also, the pregnancy was important because the great fear at the time was that the feebleminded were reproducing very rapidly and they were going to take over the country. So if you have a woman who, you know, at 17 is already pregnant with what they would say was yet another feebleminded person, you know, she just fit everyone's fears of what was happening. So he chooses her, and then under the Virginia law, they have to have a sterilization hearing at the colony, which they do.

And they give her a lawyer who is really not a lawyer for her. It's really someone who had been the chairman of the board of the colony and was sympathetic to the colony's side. And they have a bit of a sham hearing where she's determined to be a suitable person for sterilization. They vote to sterilizer her. And that is the order that then gets challenged by Carrie as the plaintiff, first in the Virginia court system and then in the Supreme Court.

GROSS: So what was her representation like in the Supreme Court?

COHEN: Well, it was the same terrible lawyer who really was not on her side. And, you know, to read the briefs for her and against her is a dispiriting experience because the lawyer who was trying to get her sterilized actually did a very good job and wrote very complete, lengthy briefs. Carrie's lawyer wrote short briefs that missed some of the most important arguments on her side and then contained some facts and arguments that actually seemed to argue for her being sterilized. So he was not a lawyer who was really interested in preventing her sterilization.

GROSS: So Carrie Buck loses the case in the Supreme Court. The Court upholds Virginia's right to sterilize her. And Oliver Wendell Holmes, who I think was considered a progressive, writes the decision upholding forced sterilization. What was behind his opinion?

COHEN: Well, for me, this was one of the saddest parts of reading up on the case 'cause when I was in law school, Oliver Wendell Holmes was really held up as the pinnacle of American justice, as a heroic figure, someone who was wounded three times in the Civil War, as a great thinker and really a model for all aspiring lawyers and judges. He actually was in many ways - although he had this reputation of being a progressive - not a progressive and not a very good guy. He had been raised in the Boston Brahmin world of that era. His father was actually the man who coined the phrase Boston Brahmin. And that phrase embodied everything that they believed about themselves, right?

They took the word Brahmin from the Indian caste system. They believed that they were America's highest caste. And Holmes was raised to believe that he and his wealthy, quote, you know, "wellborn" Boston neighbors were the best people in the country or the world. And that was something that began to influence his approach to the law before - long before the Buck v. Bell case came to the Supreme Court. Oliver Wendell Holmes had written about eugenics, which he supported. And when the case got to him, well, he was just absolutely the wrong person for Carrie Buck to have decide her fate.

GROSS: So what did he write in his majority decision?

COHEN: You know, it was a very short decision, just about, you know, five paragraphs. But he packed in so many horrible ideas and misinformation that it was quite impressive. He had this famous phrase that is reverberated over the generations, three generations of imbeciles are enough. And by that, he meant Carrie Buck's mother, Carrie Buck and Carrie Buck's daughter. And a somewhat pedantic point but, you know, there were actually very precise categories of mental defect at that time. And the lowest category was idiot, the middle level was imbecile and the highest level was moron. Carrie and her mother were both determined by the colony after extensive, you know, unreliable testing to be morons. But Oliver Wendell Holmes actually, you know, demoted them in his decision and called them imbeciles, which was a lower category.

GROSS: So, you know, a lot of people just throw around words like imbecile and moron as, like, colorful ways of saying, God, that was such a stupid thing to do, what an imbecile or, oh, you behaved like such a moron. But I had no idea that those words had actually been official categories that were used to punish people, sterilize them or keep them in a colony.

COHEN: They were, and, you know, Carrie was a middle-grade moron according to these, you know, completely unreliable tests. So they were. But so the word imbeciles - you know, Oliver Wendell Holmes was a great wordsmith. And he chose imbeciles, I think, very intentionally both because it packs a lot of power into the word itself. But also, it was even more degrading than - you know, than the category that Carrie, you know, rightfully should've had. But, you know, beyond that terrible phrase - and it was terrible - you know, imagine you're going to the Supreme Court and hoping to have your right of bodily integrity not to have an operation to sterilize you performed on you and the response of the Supreme Court 8-1 is three generations of imbeciles are enough.

But beyond that, what was really shocking about the decision is that rather than just decide the case before them, which is what the Supreme Court is supposed to do, and which Oliver Wendell Holmes as a matter of his own judicial philosophy, he did believe in just narrowly ruling on the case before him, not having broad, broad edicts. In this one case, he writes not only that Carrie Buck should be sterilized, that the Virginia law is constitutional, but he urges America to do more eugenic sterilization. And he has this terrible passage where he says, it is better for all the 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. So at a time when we're hoping that maybe there'll be some insipient grassroots opposition to eugenics, an opposition to these terrible eugenic sterilization laws, the U.S. Supreme Court by an 8-1 vote by the pen of the great Oliver Wendell Holmes is saying, no, no, do more of this, pass more laws, sterilize more people. The nation needs it.

GROSS: I don't know, I'm speechless.

BIANCULLI: We're listening to Terry's interview with Adam Cohen, author of the book "Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck." Terry spoke with Adam Cohen last year when the book was first published. It's now out in paperback. More after a break, this is FRESH AIR.

(SOUNDBITE OF THE WEE TRIO SONG, "LOLA")

BIANCULLI: This is FRESH AIR. Our guest is Adam Cohen, author of the book "Imbeciles: The Supreme Court, American Eugenics, And The Sterilization Of Carrie Buck," which just came out in paperback. Terry interviewed Cohen last year when the hardback was published just about a month after the death of U.S. Supreme Court Justice Antonin Scalia.

(SOUNDBITE OF ARCHIVED BROADCAST)

GROSS: Your book's publication is coinciding with a vacancy on the Supreme Court. So what is it like for you to watch this battle over this vacant Supreme Court's seat having just published this book about what you consider to be one of the worst Supreme Court decisions in American history?

COHEN: In the preface of my book, I quote one of the oldest things ever said about the law from the Code of Hammurabi, which prevailed in Babylonia 3,500 years ago, and this set of laws had a preface in which the writer said the goal of the Code of Hammurabi was to bring about the rule of righteousness in the land so that the strong should not harm the weak. And I was very moved by that because even 3,500 years ago, humanity understood that the highest goal of law should be to make sure that the strong do not harm the weak. And what's remarkable is how, in our civilized legal system in the United States, how rarely we've recognized that.

So to me, that's always the test in the law. And when the Supreme Court has gone astray, it's been in cases like Dred Scott, where the strong were allowed to say that the weak, that Dred Scott, a slave, was not allowed to sue for his own freedom, in Plessy v. Ferguson, where the strong were allowed to say that black people had to sit in, you know, the colored section of a railroad, in Korematsu v. the United States, when the government was able to say, round up all the Japanese and put them in internment camps. And we see it in things like Citizens United - just a tendency over and over again to side with the strong rather than the weak.

Well, honestly, there are few justices who embodied that, you know, misguided ideology more than Justice Scalia. And while I'm sorry for his loss and his family's loss, the vacancy does create a possibility for us to get more of the kind of court that, you know, not only would we want, but I think even in Babylonian times they recognized a court that looks out for the weak and that doesn't reflexively side with the strong.

GROSS: So let's get back to the Supreme Court decision that upheld a Virginia law allowing the forced sterilization of people considered unworthy - like, mentally unworthy to have children. What happened to Carrie Buck after that decision?

COHEN: Well, she was sterilized. And, you know, to read about it is - you know, it does really underscore what a serious operation it was. She was operated on, she had, you know, a couple weeks of what seemed like rather painful recovery from it. And then as the model of the time dictated, they could let her go because she was no longer a threat to the nation's gene pool so they let her go...

GROSS: Let her go from the colony that kept her confined.

COHEN: Yes. Yes, the colony then let her go, and they found a placement for her. She - you know, the sadness just compounds. She had very much wanted to go back to her foster family, which was raising her child who would be the only child she'd be able to have. And throughout the process, they had said that one of the great things about Carrie Buck being sterilized is she would then be free to go back to live with the Dobbs family and that the Dobbs family would happily take her back. This had been all worked out.

So of course when they are letting her go, the Dobbs family, which now has her daughter, does not want her back, you know? And it's not clear if that's because they're worried about, you know, losing control of the daughter. But - so she's not allowed to rejoin her daughter. And she is sent off basically to a series of assignments to be housekeepers for various families. And she lives her life. She eventually marries and marries again. She, of course, never had children. And, you know, one of the poignant facts that came out towards the end of her life is that, you know, no one who knew her as an adult thought that there was anything wrong with her mentally. And one of the friends who knew her at an old age home towards the end of her life said she always had her eye out for the daily newspaper, was very excited when it arrived so she could, you know, read all the news and that she used to love doing crossword puzzles. So this was the woman who was deemed too feebleminded to reproduce.

GROSS: So the 1927 Supreme Court decision that upheld a state's right to forcibly sterilize a man or a woman who was considered feebleminded and genetically unworthy to reproduce, you consider that decision one of the worst Supreme Court decisions ever. You acknowledge there's a lot of competition for that. But why do you consider this one of the worst?

COHEN: Well, you know, if you start by just looking at all the human misery that was inflicted, about 70,000 Americans were sterilized as a result of this decision. So that's an awful lot of people who wanted to have children who weren't able to have children. Also we have to factor in all of the many people who were being segregated, who were being held in these institutions for, you know, eugenic reasons because they were feebleminded, whose lives, you know, unfolded living in places like the colony rather than living in freedom.

Beyond the human effect, though, there was something just so ugly about this decision. And, you know, when you think about what we want the Supreme Court to be, what the founders wanted the Supreme Court to be, it was supposed to be our temple of justice, the place that people could go when all the other parts of our society, all the other parts of the government were not treating them right. So Carrie Buck, this poor woman who has been raped, who has been wrongly designated feebleminded, who has had her baby taken from her, who is being held as a prisoner in his horrible colony, goes to the U.S. Supreme Court. And we all know what the court should've done.

Not only did it not do it, but the contempt that, you know, just dripped from this decision - three generations of imbeciles are enough, it's better for all the world, you know, if we sterilize more of these people. It just was a level of ugliness that I'm not sure we've really seen often in the Supreme Court.

GROSS: I didn't know about this 1927 eugenics Supreme Court decision until reading your book, and I was surprised to read in your book also that this decision has never been overturned. It's still in the books. So why is it still in the books? And does it have any meaning now? Is it being used to justify forced sterilization or colonization?

COHEN: Well, the court had an opportunity to overturn it in a 1942 case challenging the Oklahoma sterilization law and they specifically chose not to. They struck down the Oklahoma law but on very narrow grounds, and the justice who wrote the decision later said, yeah, we wanted to keep Buck v. Bell in place. And it is still being used. In 2001, a sterilization was upheld by a U.S. Court of Appeals - one step below the Supreme Court - citing Buck v. Bell. So it's still there and it's still being used. And, you know, honestly, we're living in strange times now. I think we all see that every time we, you know, turn on the news or pick up the newspaper.

Could this be used to approve, to uphold bad policies that our next president or our next Congress or, you know, some state legislature enacts? Absolutely. It's a menace as long as it is the law of the land. And it is the law of the land.

GROSS: Why do you think it's important that Americans know about eugenics and this chapter of American history?

COHEN: Well, you know, it is - it was shocking to me how little-known it is, and, you know, I didn't learn it in law school. The leading constitutional law treatise - you know, which is, over 1,700 pages - you know, has half of a sentence and a footnote about it. It's just not, you know, something that people are aware of. The reason it's important is that, you know, I think that the instinct to demonize the other, to try to defeat the other, is, you know, very - you know, deeply felt in our country and no doubt other countries. You see some of it in the immigration debate going on today. I think these instincts to say that, you know, we need to stop these other people from polluting us, from changing the nature of our country, they're very real, they may be growing right now. And I think that, you know, the idea that those who don't remember the past are condemned to repeat it, it's very troubling that we don't remember this past.

Visit link:

The Supreme Court Ruling That Led To 70,000 Forced ...