Line of the Day: Delong on Sotomayor

Brad Delong has a long and winding post with lots of digressions (which I appreciate, being a chronic digressor myself). He has this to say regarding former Supreme Court Justice Oliver Wendell Holmes:

And this then led me to Justice Oliver Wendell Holmes in Buck v. Bell (1927):

Carrie Buck is a feeble-minded white woman who was committed to the State Colony…. She is the daughter of a feeble-minded mother… and the mother of an illegitimate feeble-minded child…. An Act of Virginia, approved March 20, 1924, recites that the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives….

The attack is not upon the procedure [i.e., due process] but upon the substantive law…. 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. 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson. v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.

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Just as young men can be drafted and compelled to give their lives for the health of the state (or is it the volk?) in war, so feeble-minded women can be drafted and compelled to give their fertility for the improvement of the genome.

Let me say that this is a case where I suspect that a wise Latina justice might have been more able to consider the proper equities than Justice Holmes was.

It would have been perhaps politically risky but I also shared the thought that Sotomayor should have defended her statement. Perhaps it was a poorly worded sentiment but in the light of American legal history it is certainly defensible. Can you think of other landmark legal precedents where Sotomayor’s statement might well have been true? I can think of at least five.


One thought on “Line of the Day: Delong on Sotomayor

  1. Min says:

    It is always dicey to compare our own viewpoints with those of less enlightened times. (Not that ours is all that enlightened!) You do not have to go far back in Latin American history to find legally sanctioned atrocities. To be sure, a wise person of any kind could have made a better decision than Justice Holmes. But there is nothing intrinsic about being a Latina that confers wisdom.

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