Maryland Law Review Volume 74 | Issue 4 Article 5 “A Sordid Case”: Stump v. Sparkman, Judicial Immunity, and the Other Side of Reproductive Rights Laura T. Kessler Follow this and additional works at: http://digitalcommons.law.umaryland.edu/mlr Part of the Human Rights Law Commons, Judges Commons, Law and Society Commons, and the Women Commons Recommended Citation 74 Md. L. Rev. 833 (2015) This Article is brought to you for free and open access by the Academic Journals at DigitalCommons@UM Carey Law. It has been accepted for inclusion in Maryland Law Review by an authorized administrator of DigitalCommons@UM Carey Law. For more information, please contact [email protected]. Articles “A SORDID CASE”: STUMP V. SPARKMAN, JUDICIAL IMMUNITY, AND THE OTHER SIDE OF REPRODUCTIVE RIGHTS LAURA T. KESSLER* ABSTRACT This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts, even if such acts are done maliciously or flawed by the commission of grave procedural errors. The context of the case was horrific. It involved the involuntary sterilization of a fifteen-year-old girl; she was sterilized pursuant to a court order that her mother had obtained from a state judge without any notice to the child, appointment of a lawyer to represent her, presentation of evidence, or opportunity to appeal. As an adult she sued the judge and lost on the basis of the judicial immunity doctrine. The basic project of this Article is to show why this largely overlooked case is important in American constitutional law beyond the narrow issue of judicial immunity, recovering it as a canonical decision relevant to contemporary debates about constitutional reproductive rights and procedural due process. Specifically, this Article suggests that Stump emerged from an ongoing set of discussions about the nature and scope of then-nascent © 2015 Laura T. Kessler. * Professor of Law, University of Utah S.J. Quinney College of Law; [email protected]. Many thanks to Susan Appleton, Emily Chiang, Lincoln Davies, Erika George, Angela Harris, Kristin Kalsem, Douglas Laycock, Marjorie Press Lindblom, Paul Lombardo, Lisa Pruitt, Aden Ross, Benjamin Spencer, Michael Teter, Debora Threedy, and Manuel Utset for their valuable comments on earlier drafts of this article; to my research assistants, Ruth Hackford-Peer, Samuel Hall, Jenica Maxwell, John Plimpton, Amy Rose, and Elise Walker; and to the student editors of the Maryland Law Review. I am also grateful to John Jacob, the archivist of the Lewis F. Powell Archives at Washington & Lee Law School for helping me gain access to the collection. The staff of the University of Utah Law School Library, particularly Ross McPhail, was especially helpful, as were the staffs of the Library of Congress and Yale Law Library. The material on which this Article is based could not have been compiled without their generous assistance. 833 834 MARYLAND LAW REVIEW [VOL. 74:833 constitutional protections for reproductive rights, as well as access to the federal courts by civil rights claimants. These issues continue to be contested today, as courts and states reign in the scope of reproductive rights, and as federal judges increasingly employ procedural rules limiting the ability of civil rights victims to pursue their claims and receive a decision on the merits in federal court. As these questions continue to filter through the courts, a close examination of the historical antecedents to these trends, as reflected in earlier Supreme Court decisions such as Stump, can help courts envision more just alternatives to the present course on these fundamentally important procedural and substantive questions. TABLE OF CONTENTS ABSTRACT .......................................................................................... 833 TABLE OF CONTENTS ........................................................................ 834 INTRODUCTION ................................................................................. 835 I. SUMMARY OF THE CASE ................................................................. 841 A. Facts .................................................................................. 841 B. The Legal Landscape ...................................................... 847 C. The District Court Case and Appeal to the Seventh Circuit ............................................................................. 853 D. The Supreme Court Proceedings and Decision ............ 854 E. Remand to the Seventh Circuit Court of Appeals ......... 863 II. SCHOLARLY REACTION TO STUMP ............................................... 870 III. STUMP’S BROADER SOCIAL, HISTORICAL, AND LEGAL CONTEXT ................................................................................ 874 A. Eugenics in the Late Twentieth Century? ...................... 874 B. Stump’s Antecedents: The Long History of Eugenics in the United States ............................................................ 887 C. Good Intentions, Victims’ Agency, and Other Caveats ............................................................................ 899 IV. STUMP’S CONTINUING LEGACY: EUGENIC THINKING IN CONTEMPORARY LAW AND POLICY ......................................... 905 V. CONCLUSION ............................................................................... 918 EPILOGUE .......................................................................................... 920 Kessler Final Proof 2015] “A SORDID CASE” 835 INTRODUCTION When I was fifteen years old, I had a real bad pain on my right side. [I] was admitted into the hospital and my mother told me I was going in for an appendectomy. Then the shots came. I kept hearing the nurses say, “make sure she is really out. If she finds out what’s really going on, she will run.” This all took place in a small room. I can remember the men all in their green gowns. They laid me on the table. I was cry’in for my mom but she wasn’t there. I saw this door that had two windows and I looked up to yell again, and when I did, a man in a green gown put a black mask on my face and told me to count backwards. Everything went black. Linda Spitler1 What happened next became the subject of one of the leading United States Supreme Court decisions on judicial immunity, Stump v. Sparkman.2 Linda Spitler was sterilized pursuant to an ex parte court order that her mother had obtained a few days earlier from Judge Harold D. Stump of the DeKalb County Circuit Court in Auburn, Indiana. Years later, Linda married Leo Sparkman and learned of her condition after failing to conceive a child. She sued the judge, her mother, and the physicians involved in the sterilization in federal court for violating her civil rights and other abuses. The trial court dismissed her suit before any trial, reasoning that Judge Stump was clothed with absolute judicial immunity and that his elimination from the case removed the necessary element of state action, requiring dismissal of the private defendants as well. Sparkman took the question of the judge’s immunity all the way to the Supreme Court. Ultimately, the Court held that judges acting within their jurisdiction are absolutely immune from liability for their judicial acts, even if their exercise of authority is done maliciously or flawed by the 1. JAMIE RENAE COLEMAN & PAULA BATEMAN HEADLEY, THE BLANKET SHE CARRIED 1 (2003). This book is a first-person account of Linda Sparkman’s life, written with the assistance of a friend, Paula Headley. Linda Spitler married Leo Sparkman, becoming Linda Sparkman. She changed her name to Jamie Renae Coleman later in life. See Shari Rudavsky, Looking at the History of Eugenics in Indiana, INDIANAPOLIS STAR, Apr. 13, 2007, at 1. 2. 435 U.S. 349 (1978). 836 MARYLAND LAW REVIEW [VOL. 74:833 commission of grave procedural errors.3 On remand to the Seventh Circuit, the court issued a brief per curiam opinion affirming the trial court’s dismissal of Sparkman’s claims against the private parties as well. The apparent basis for this result, provided in four concurrences, was that Sparkman had not stated sufficient facts in her complaint describing an alleged conspiracy among the judge and the private parties to deprive her of her rights.4 This decision effectively terminated the entire case. The story of Stump v. Sparkman is really three stories. First, and most basically, it is about the life of a family—the Spitlers. It is about a teenager in conflict with her mother about her sexuality, how her mother turned to the legal system to control her daughter, and the long-term impact of that decision on the child, Linda Spitler. At a second level, the story of Stump is about the history of eugenics in the United States. Through its broad interpretation of judicial immunity despite the obvious unconstitutionality of the sterilization order, the Supreme Court became complicit in this history, indeed, part of it. From this perspective, Stump is a story of how constitutional reproductive rights continue to be a function of race, ethnicity, and socioeconomic status in America, and how the law works to channel sex and childbearing into the marital family by punishing those who do not conform to this ideal. Finally, on a third level, the story of Stump is a tale of how the Supreme Court and lower federal courts have developed, interpreted, and applied