Happy Birthday, Justice Holmes!

[MarkD]

If he were still alive, Oliver Wendell Holmes, Jr. would be celebrating his 179th birthday today.

The Great Dissenter.

We definately need people like him on the Supreme Court these days. Always, actually.

[MarkD]

Actually he was kind of a disaster.  "Three generations of imbeciles is enough"- not the kind of language you want to read in a high court decision in a free country. 

There was nothing wrong with Buck v. Bell ..... in 1927. The decision only looks "wrong" in hindsight. Certainly, if a nearly identical case had been argued before the Supreme Court in 1977, the decision would have been completely different.

The Court did the best that it could do, in 1927, given the state of medical knowledge about mental handicaps and genetics at the time, and given the precedents at the time. The decision was 8 to 1, with even Louis Brandeis and Harlan F. Stone supporting the conclusion.

I still believe in celebrating Holmes as a GREAT Supreme Court Justice who should be a role model for Justices today. One good quote of his: "I have often said to my colleagues that I hate 'justice,' because I know when a man begins to talk like that, he has shirked thinking in legal terms."

Another good quote came one of Holmes's dissenting opinions in a case decided 90 years ago, a case called Baldwin v. Missouri. This case was the at least the sixteenth time that a majority of the Court was striking down a state or local law and invoking either the Due Process Clause or the Equal Protection Clause of the Fourteenth Amendment as their authority for striking down, but Holmes was casting a dissenting vote. In none of the sixteen cases, including Baldwin, were enumerated, constitutional rights at stake nor was their any racial discrimination occurring. Holmes was clearly very frustrated with how often he was casting these dissenting votes.

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the states. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. ... [W]e ought to remember the great caution shown by the Constitution in limiting the power of the states, and should be slow to construe ... the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the states may pass.

States have powers, not rights, but other than that misnomer I think it is an excellent statement that reflects the anxiety I have felt very often for the last 29-30 years.

Repeating: I celebrate Holmes's birthday, and having more people like him on the Court now would be delightful, not a "disaster."

[MarkD]

Holmes was born 180 years ago today.

Happy Birthday, Oliver Wendell Holmes, Jr.!

[MarkD]

Buck v. Bell is indefensible. I gather Mark is not disabled or has ever worked with disability charities.

Because little evils were done in God's name, unspeakable evils were later unleashed by forces with no respect for God.

I defended Buck v. Bell in a previous post on this thread. Why don't you rebut what I said in Reply #2?

I may not be "disabled," but I am gay, and I do not support any "interpretations" of the Equal Protection Clause that are not based on what that clause was intended to mean.

You seem to expect that people will base their judicial decisions on their own needs and their own ideologies. I firmly believe that judges are supposed to base their decisions on objective interpretations of what the laws were intended to be. Judges are supposd to interpret the intentions of the human beings who made the laws, not the intentions of God. That's for theologians to talk about.

[MarkD]

There was nothing wrong with Buck v. Bell ..... in 1927. The decision only looks "wrong" in hindsight. Certainly, if a nearly identical case had been argued before the Supreme Court in 1977, the decision would have been completely different.

But nearly identical cases were considered at the same time and came to a different conclusion. See, e.g., Williams v. Smith, 190 Ind. 526 (1921) ("It is very plain that this act is in violation of the Fourteenth Amendment to the federal Constitution in that it denies appellee due process."); Osborn v. Thomson, 185 A.D. 902, 171 N.Y.S. 1094 (App. Div. 1918) ("Osborn is not given the equal protection of the laws, having in mind many others situated as he is who are not within the walls of a public institution, to which equal protection he is entitled with them."); Haynes v. Lapeer Cir. Judge, 201 Mich. 138, 145 (1918) ("This law as framed does not afford, in its scope, those affected by it that equal protection under the laws guaranteed by the Constitution."); Smith v. Bd. of Examiners of Feeble-Minded, 85 N.J.L. 46, 55 (Sup. Ct. 1913) ("It is not asking too much that an artificial regulation of society that involves these constitutional rights of some of its members shall be accomplished, if at all, by a statute that does not deny to the persons injuriously affected the equal protection of the laws guaranteed by the federal Constitution.").

Defend the opinion on its own merits if you want to try to do so, but don't claim a legal consensus that never existed.

- snip -

The Court did the best that it could do, in 1927, given the state of medical knowledge about mental handicaps and genetics at the time, and given the precedents at the time. The decision was 8 to 1, with even Louis Brandeis and Harlan F. Stone supporting the conclusion.

The only "precedent" cited in the opinion is Jacobson v. Massachusetts, which Holmes cites for the dubious proposition that the principles underlying mandatory vaccination can extend to sterilization. It seems obvious that the decision was not compelled by binding precedent. There is zero reason to believe the Court's decision reflects either any binding precedent or "the state of medical knowledge" at the time, rather than Justice Holmes's subjective judgment that "three generations of imbeciles is enough."

The precedents I was referring to were the SCOTUS's own precedents, not those of any other courts. Surely, the SCOTUS has no obligation to respect precedents of lower courts. So, yes, I was referring to precedents such as Jacobson v. Massachusetts, as well as other decisions even before Jacobson pertaining to what scope the Due Process and Equal Protection Clauses have. For the Due Process Clause of the Fourteenth Amendment, one can look as far back as a case called Munn v. Illinois, 94 U.S.113 (1876); the Court upheld a state law fixing the price of grain storage. The party challenging the law argued the law violated three clauses of the U.S. Constitution, one of which was the Due Process Clause of the Fourteenth Amendment. The opinion dealt with that assertion first, and replied: “Every statute is presumed to be constitutional. The Courts ought not to declare one to be unconstitutional unless it is clearly so. If there is doubt, the expressed will of the legislature should be sustained.” (94 U.S. 123 (1876).) “For our purposes, we must assume that, if a state of facts could exist that would justify such legislation, it actually did exist when the statute under consideration was passed. For us, the question is one of power, not of expediency. If no state of circumstances could exist to justify such a statute, then we may declare this one void because is [sic] excess of legislative power of the State. But if we could, we must presume it did. Of the propriety of legislative interference within the scope of legislative power the legislature is the exclusive judge. Neither is it a matter of any moment that no precedent can be found for a statute precisely like this.” (94 U.S. 132-133 (1876).) "For protection against abuses by legislatures, the people must resort to the polls, not to the courts." (94 U.S. 134 (1876).) The conclusion of the Court was that the statute did not violate due process. The bad news was that the Court was misinterpreting the Due Process Clause by going beyond its procedural meaning and going into a substantive meaning, while declaring the Court itself to be the judges of whether the state had the power to enact the law. The good news was that substantive due process seemed to have few teeth. As David P. Currie said, the Munn opinion "certainly seemed to stack the deck in the state's favor." (Currie, The Constitution in the Supreme Court, the First Hundred Years, 1789-1888, (1985), page 371.)

For the Equal Protection Clause, the Court had devised a similar rational basis test, one that was extremely deferential, designed to be weighted in favor of state legislatures. The rational basis test was applied to all cases involving "discrimination" other than racial discrimination, which had always been recognized as the most unacceptable type of discrimination. The rational basis test under the Equal Protection Clause also presumed that state legislation was constitutionally permissible, that the only requirement be that the classification at issue be rationally related to some legitimate governmental interest. Given the SCOTUS's own precedents up until Buck v. Bell, there was no reason to treat mentally handicapped persons as any kind of "discrete and insular minority" who are victims of society's "prejudice," -- as was later suggested in United States v. Carolene Products Co. 308 U.S. 144 (1938), in the famous "footnote four" -- may need more judicial protection than the rational basis test.

Sorry for the delayed reply.

[MarkD]

That is a fascinating history of the Due Process Clause but I don’t see how it’s relevant to the specific question of whether authorizing a medical procedure on someone in state custody without a hearing is or is not a violation of due process. The federal court in Davis v. Berry noted that, in the Iowa eugenics law, “There is no actual hearing. There is no evidence. The proceedings are private. The public does not know what is being done until it is done. Witnesses are not produced, or, if produced, they are not cross–examined. … The prisoner is not advised of the proceedings until ordered to submit to the operation. … Due process of law means that every person must have his day in court, and this is as old as Magna Charta; that some time in the proceeding he must be confronted by his accuser and given a public hearing.” 216 F. 413, 418 (S.D. Iowa 1914). If the statute described is not a violation of due process, even in light of the court’s holding in Munn (which hasn’t been good law for over a century), then due process has no meaning whatsoever.

It sounds like the federal district of Iowa was going pretty far out on a limb. So under constitutional guaratee of due process, patients in mental hospitals should be treated like accused criminals and afforded all of the procedural guarantees of due process? Patients in mental hospitals are "prisoners"? Wow.

Holmes's opinion in Buck v. Bell addressed the question of procedural due process, and the opinion explicitly says, "There can be no doubt that, so far as procedure is concerned, the rights of the patient are most carefully considered, and, as every step in this case was taken 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." (274 U.S. 200, 207 (1927).) That was followed immediately by this statement, "The attack is not upon the procedure, but upon the substantive law." This is why I quoted Munn v. Illinois, an opinion which explained how the Court perceives the scope of substantive due process.

Regarding the fact that you say Munn "hasn't been good law for over a century," you are misperceiving the effect that Wabash, St. Louis & Pacific Railway Co. v. Illinois had on Munn. Munn addressed three legal questions: whether the Illinois state statute violated substantive due process, whether it violated equal protection of the laws, and whether it violated the principle that only the federal government can regulate interstate commerce. The Court's answer to all three of those legal questions was no, none of them were violated. In Wabash the Court re-examined the question only of whether state statues like the ones examined in Munn and Wabash are examples of state interference of interstate commerce, and deemed that those statutes do interfere with a power delegated to the federal government, and that was why Munn was overturned -- solely on the issue of a state's interference with the federal power of regulating interstate commerce, not the issue of violating substantive due process. The Wabash opinion never mentioned due process at all. Munn's interpretation of the Due Process Clause has never been overturned.

The equal protection logic in Haynes, Smith and Thomson is that legislation that requires inflicting conduct upon the institutionalized that would be criminal if inflicted upon the same individual, with the same physical and mental state, outside the state hospital, is unconstitutional class legislation. As the Supreme Court noted in Gulf, C. & S.F. Ry. Co. v. Ellis, “the mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of the fourteenth amendment, and that in all cases it must appear not only that a classification has been made, but also that it is one based upon some reasonable ground, some difference which bears a just and proper relation to the attempted classification, and is not a mere arbitrary selection.” 165 U.S. 150, 165–66 (1897). There is no rational basis for legislation that authorizes the sterilization of people confined in state institutions while criminalizing the sterilization of people of identical circumstances who are not confined in state institutions. The state may have a “legitimate government interest” in what the Smith court refers to as “the artificial improvement of society at large,” but if it does, its legislation must affect all members of that class, not merely those who are confined in state institutions. By limiting it to only those individuals, “a principle of selection is adopted that bears no reasonable relation to the proposed scheme.” Arbitrarily selecting a subgroup for no rational reason runs afoul of the Court's precedent in Gulf.

Once again, the SCOTUS is not obligated to respect the precedents rendered by lower courts, such as the decisions in Haynes, Smith, and Thomson. So Gulf is the only pertinent precedent to the SCOTUS. It may seem "arbitrary" to you that mentally "unfit," "feeble-minded" people (as those terms were used in 1927) would be "selected" for sterilization, but it did not seem that way at all to eight Supreme Court Justices in 1927. They found a "reasonable relation" existed between a person's classification as "feeble-minded" and the state's goal of preventing such people from multiplying. The eight Justices included not only Holmes, but as I pointed out before, it included Louis Brandeis and Harlan F. Stone too. If Holmes was rendering a "subjective" decision, as you said before, then so were Brandeis, Stone, and five other Justices.

I created this thread in order to praise Oliver Wendell Holmes, Jr., and according to the responses by you and some others, Holmes does not deserve any praise because only a heartless monster would render a decision like Buck v. Bell (even in 1927). All it takes to declassify someone as one of the greatest legal minds the SCOTUS has ever had is ONE decision you consider to be wrong? Does Holmes's opinion for the Court in Nixon v. Herndon not matter to you? Do his dissenting opinions in cases such as Lochner v. New York, Coppage v. Kansas, Adkins v. Children's Hospital, and Gitlow v. New York not matter to you? David P. Currie, who was a colleague of Barack Obama's at University of Chicago Law School, published two texts called The Constitution in the Supreme Court. The first text, published in 1985, covered the Court's first 99 years, from 1789 to 1888, and the second text, published in 1990, covered the Court's next 98 years, from 1888 to 1986. In the Epilogue to the second volume, Currie wrote:

Holmes and Brandeis, Cardozo and Hughes, Stone and Jackson, Frankfurter and Black: with Marshall, Story, Curtis, and Miller from an earlier century, these are names that belong in the pantheon. The United States has been fortunate in its Constitution, in its judges, and in its people; may it be as fortunate during the next two hundred years.

But if you want to tear down the reputation of men like Holmes, Brandeis, and Stone because they supported ONE decision of which you disapprove -- one decision that you think was far worse than the decisions rendered by three or four lower federal courts -- then be my guest.