Law and Faith

I was reading about Justice Pierce Butler, one of the “Four Horseman” who opposed the New Deal. Butler was also the lone dissenter in Buck v. Bell, the 1927 opinion upholding the sterilization of the mentally handicapped.  Justice Butler’s Catholicism may have influenced his dissent. Indeed, the author of Buck (and enthusiastic eugenicist), Justice Oliver Wendell Holmes Jr., allegedly said that “Butler knows this is good law, I wonder whether he will have the courage to vote with us in spite of his religion.”

Courage indeed.

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7 Responses

  1. William McGeveran says:

    You should check out my friend David Stras’ article about Butler in this Vanderbilt Law Review symposium on neglected Supreme Court justices:

  2. Ron Collins says:

    Without necessarily defending Holmes, it is well to remember that Louis Brandeis joined the majority in Buck v. Bell — a fact that is often ignored.

  3. Joe says:

    There have been a few good books on eugenics laws including ones discussing Buck and Skinner (Victoria Nourse / In Reckless Hands). There were various lower court opinions that took a more restrictive stance pre-Buck v. Bell, underlining Holmes’ dismissive treatment was in no way compelled under the law at the time.

    The interesting article cited suggests there might be more than one reason why Butler dissented, other than the (somewhat unfair) idea it was just religious. Along with Chief Justice’s dissent w/o opinion in Bradwell v. State (women lawyers) — there probably for health reasons — it is a shame there was no dissenting opinion.

  4. Joe says:

    Butler might have had some words of wisdom for Scalia:

    “Judges generally, and I think wisely, refrain from speaking. When one is required to give consideration to both sides of a question, he properly may not indulge in sallies of the imagination.”

  5. David Bernstein says:

    “Without necessarily defending Holmes, it is well to remember that Louis Brandeis joined the majority in Buck v. Bell — a fact that is often ignored.” Brandeis not only joined it, he did so enthusiastically, praising it a year or two later as an example of properly allowing the states “to meet modern conditions by regulations which a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive.” Taft was also very enthusiastic about the law, but cautioned Holmes that several of their colleagues were troubled by the case.

    Pierce also was the Court’s fiercest critic of excesses attending the enforcement of alcohol prohibition, so his Catholocism may have mixed with libertarian sentiment to produce his dissent.

  6. Shag from Brookline says:

    Mixing Catholicism with libertarian sentiment [whatever that is] produces dissent? Or self-excommunication?

  7. William McGeveran says:

    @David Bernstein: Your last sentence may be true, but note that Catholics generally opposed Prohibition at the time. Partly this is because they were more likely to be urban and more likely to be immigrants or second generation, both groups that were usually “wet” rather than “dry,” largely for cultural rather than ideological reasons. Butler was the son of Irish immigrants and lived in St. Paul.

    Holmes was only speculating on possible reasons for Butler’s views, and in the end that’s probably all we can do either.