5 Dec./Jan./Feb. 2018 Federal Bar Council Quarterly with the young lawyers he trained Legal History throwing away their “biological and inspired. birthright for a mess of morons.” Judge Marrero also gave Yet Another Terrible Supporters of the eugenics move- thanks to members of his fam- ment included John D. Rock- ily – his wife and two sons – who Decision by the efeller, Jr., Alexander Graham always have supported him. He Supreme Court: This Bell, W.E.B. DuBois, Theodore then thanked his Chambers family, Time, Endorsing Roosevelt, and Margaret Sanger. including his assistant and many Eugenics! In 1896, Connecticut became law clerks, his judicial colleagues, the first state to enact a law pro- the chief judges under whom he By C. Evan Stewart hibiting marriage to anyone who has served and Second Circuit was “epileptic, imbecile or fee- Chief Judge Robert Katzmann. Oliver Wendell Holmes wrote ble-minded.” In 1907, Indiana Judge Marrero described Judge and said many famous things dur- became the first state to pass ster- Katzmann as a Buckner-type men- ing his long and illustrious judi- ilization legislation for “defec- tor to him, giving him the privilege cial career. One of my personal tive” people. of serving as Chair of the Second favorites is: “The life of the law The legislative efforts that Circuit Judicial Conference and as has not been logic, it has been followed in various states fed co-chair, with Judge Katzmann, of experience.” As I tell my law upon public enthusiasm for ensur- “Justice for All: Courts and the students, that gem can be trotted ing that America would continue Community.” out whenever one is in a jam for to be a nation of and for “high Judge Marrero encouraged something to say; and its elastic- grade” people. By the 1920s, lawyers in private practice to seek ity (and opaque meaning) will Congress was holding hearings opportunities for the professional usually suffice to end whatever at which the biological and ge- pleasure found in public service tough spot in which one finds netic differences between vari- and suggested several ways to do herself. ous national groups were openly so. First, mentor and nurture the Unfortunately, when Holmes vetted. Eugenics “expert” Harry careers of promising young law- penned his most infamous opin- H. Laughlin (a Princeton Ph.D. in yers. Second, work to improve ion in Buck v. Bell, 274 U.S. 200 biology and head of the Eugenics fairness and eliminate excess and (1927), neither “logic” nor “ex- Record Office), who testified in inefficiency in court proceed- perience” carried the day. support of the Immigration Act ings. There is definitely public of 1924 (which barred immigra- interest in making the practice of Eugenics tion to southern and eastern Eu- law more amicable, less costly ropeans, “inferior stock,” while and more equitable and efficient. Although eugenics got its allowing immigration for north- Third, provide pro bono and pub- start in England in the 1880s, it ern Europeans, “old stock”), was lic interest service. Try to meet quickly took hold in America. strident in his advocacy that the the minimum aspirational stan- Proponents believed there were “lowest one-tenth” of Americans dard for provision of pro bono “genetically inferior” groups (15 million people) should be services in the Code of Profes- threatening the well-being and fu- sterilized. sional Responsibilities. There is ture of the country. By the 1920s, Also in 1924, based in large a vast unmet need for legal ser- eugenics was being taught at 376 part upon a “model” eugenics law vices for unrepresented litigants. leading colleges and universi- devised by Laughlin (in consulta- Judge Marrero concluded by ties – Professor Earnest Hooton, tion with legal experts), Virginia giving thanks to the Federal Bar Chairman of Harvard’s Anthro- adopted a statute that authorized Council for the honor of the Em- pology Department, opined that the compulsory sterilization of ory Buckner award. well-educated Americans were “mental defectives.” Aubrey E. Federal Bar Council Quarterly Dec./Jan./Feb. 2018 6 Strode – a prominent Virginia “parents” pulled her out of school ment of her; he had her moth- lawyer – was the principal drafter and relegated her to domestic er’s track record at the Colony; of the legislation; and he would chores, both at home and for hire. Carrie was an unwed, teenage also be its defender/advocate in When she was seventeen, Carrie mother (stoking the aforemen- the lower courts and before the was raped by her foster “moth- tioned fears); and she was young U.S. Supreme Court. Dr. Albert er’s” nephew and became preg- – once sterilized, Carrie could be S. Priddy, the superintendent of nant. Faced with this most unfor- released back into society (free Virginia’s Colony for Epileptics tunate situation, Carrie’s foster from years of tax-payer care, but and Feebleminded, did not want “parents” made the decision not not able to engage in immoral to proceed under the new law (for only to get her out of their home, activity leading to more feeble- which he had lobbied the state but also to institutionalize her. minded children). Following the legislature) until the courts had Petitioning the Virginia Com- procedures set forth in the new blessed it. Accordingly, it was mission of Feeblemindedness, law, Priddy initiated legal pro- decided there should be a test Carrie’s foster “parents” falsely ceedings to sterilize Carrie, and case. And Carrie Buck was cho- represented that she was both hired Strode as his counsel. A lo- sen to be the “testee.” feebleminded and epileptic. And cal court then appointed a lawyer at the time of the Commission’s (Robert G. Shelton) as Carrie’s Who Was Carrie Buck? hearing, Carrie was seven months guardian to protect her interests; pregnant. This latter fact – an un- his compensation: $5 a day (with Carrie Buck had been at the married and pregnant minor, who a cap of $15). Colony for only two months in was also purportedly feeblemind- Next came a hearing of the 1924, but in many ways she was ed – was a defining third strike, Colony’s Special Board of Direc- the perfect candidate for Priddy’s because it reinforced many public tors to obtain permission to pro- purposes. For one thing, her fears driving the eugenics move- ceed. At the hearing, Priddy was mother had been in the Colony ment: immoral young woman the principal witness, and much of for several years, having been carrying venereal diseases, and his testimony was false; the very declared a “moron” and being giving “birth to children who are worst part was his statement that someone who exhibited “a lack as defective as themselves.” (Dr. Carrie’s two month old daughter of moral sense and responsibil- Walker E. Fernald). The Com- Vivian was also feebleminded ity” (she had had two additional mission dutifully found Carrie to – something he could not possi- children out of wedlock, was be “feebleminded or epileptic” – bly have known. Unfortunately, “without means of support,” and without setting forth any criteria Shelton’s cross-examination was may have resorted to prostitution or evidence of either; and after pathetic and Priddy was actually to help support herself and her Carrie gave birth to a daughter able to bolster his case for steril- children). Carrie had been taken (Vivian), she was delivered to ization. At the end of the hearing, away from her mother at an early the Colony and Dr. Priddy’s care, Carrie was asked one question: age and had been living with a where she was promptly desig- “Do you care to say anything local family since she was four. nated a “Middle grade Moron.” about having this operation per- For a time, Carrie’s life with a formed on you?” Not surpris- new family seemed for the better: A Test Case ingly, no one had ever explained she attended school, had friends, to her what “this operation” was. and in her free time went fishing Dr. Priddy’s decision to pick Her answer was “No Sir, I have and hiking. After the sixth grade, Carrie for his test case was easy: not, it is up to my people.” There however (her last teacher’s com- he already had the determination was no follow-up, not even who ments were “very good – deport- by the Commission; he had the she believed to be her “people” ment and lessons”), her foster Colony’s own “medical” assess- (or why she thought they were 7 Dec./Jan./Feb. 2018 Federal Bar Council Quarterly looking out for her). Not surpris- Carrie an accredited medical test world gone topsy-turvy, and sunk ingly, the Special Board in short to determine her mental capacity, into the slough of despond.” order granted Priddy’s petition. he also gave the only testimony Virginia’s statute allowed Car- about Vivian’s mental capacity – Appeal of the Test Case rie a right to appeal to a court; and that testimony (about an eight Priddy wanted a test case, and month old baby) was on its face Notwithstanding the appall- Shelton willingly agreed to appeal absurd and went unchallenged by ing evidentiary record below, the matter. Shelton then hired an- Whitehead on cross-examination. Carrie Buck’s legal chances on other lawyer, Irving P. Whitehead, [This testimony would constitute appeal did not look so bad. Be- to handle the appeal. Unfortu- the sole “evidence” with respect tween 1913 and 1921, there had nately for Carrie, Whitehead – an to three generations of mental been eight challenges to state enthusiastic proponent of eugen- impairment in Carrie’s family.] sterilization laws (Indiana, Iowa, ics – had close ties to Strode, the At the conclusion of the “ex- Michigan, Nevada, New Jersey, Colony, and Priddy (and Priddy pert” testimony, Strode rested his New York, Oregon, Washington), agreed to pay Whitehead’s legal case.