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#13 Reflections on Buck v. Bell: An Interview with Dr. Paul Lombardo
35 Plays2 months ago
In this episode, we speak with Dr. Paul Lombardo, Regents’ Professor and Bobby Lee Cook Professor of Law at Georgia State University. He is a historian and legal scholar who has written on eugenics, medical ethics, and Buck v. Bell. He tells us about Carrie Buck, those at the Virginia Colony who drove her case to the Supreme Court, and the impact of the Court’s decision.
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For more information about Dr. Lombardo's book Three Generations, No Imbeciles, visit https://www.press.jhu.edu/books/title/12262/three-generations-no-imbeciles.
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For complete episode information, check out our episode guide on our website at https://relitigated.com/2025/07/16/13-reflections-on-buck-v-bell-an-interview-with-dr-paul-lombardo.
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Transcript
Introduction to the Podcast & Guest
00:00:00
Speaker
Hi there. Welcome to the Relitigated Podcast. I'm your host, Jarrett, and I'm joined by my co-host, Nikki. Hello, Nikki. Hello. Now, normally we invite three friends who role play as justices, but for this episode, we're doing something a little different.
00:00:17
Speaker
With us today is Dr. Paul Lombardo, who is the Regents Professor and Bobby Lee Cook Professor of Law at Georgia State University's Center for Law, Health and Society. He is a history and legal scholar who throughout his career has researched and written extensively on topics such as eugenics and medical ethics.
00:00:34
Speaker
As the author of the book, Three Generations, No Imbeciles, Eugenics, the Supreme Court, and Buck v. Bell, he is also an expert on the Supreme Court case Buck v. Bell, which is the case we discussed in our last episode.
Dr. Lombardo's Academic Journey and Discovery
00:00:46
Speaker
We're incredibly excited to have him here to help us contextualize and make sense of this very difficult case. Dr. Lombardo, welcome to the podcast. Thank you. Super excited to have you here.
00:00:57
Speaker
Before we get into the case itself, I was wondering if you wouldn't wouldnt mind giving us a little bit of the backstory on yourself and how you came to learn about the case and why it's been such a big part of your academic career.
00:01:12
Speaker
Well, like most things in life, there was a lot of chance involved. I was a graduate student. I needed to write a paper for a seminar and I ah just happened upon a news story that was that was lying next to me in ah and a little restaurant.
00:01:29
Speaker
And the news story had to do with a case that was in the local um federal courts where a group of people were suing because they had been surgically sterilized by the government over a course of years.
00:01:46
Speaker
um and it turns out that the person who was representing a group of people, a class of people, was named Doris Buck, and and she happened to be the sister of somebody named Carrie Buck.
00:01:58
Speaker
Well, at the time, I had no idea who Doris or Carrie were, but it turns out that Carrie Buck was the person whose case went to the Supreme Court in the 1920s and validated the ah state laws that allowed people to be sterilized in state institutions.
00:02:15
Speaker
And so I thought, well, this is an interesting case, um and it's local. Why don't I, know, maybe I could write about this. And so I but got my my mentor to approve it.
00:02:27
Speaker
I stumbled over to the library. I found completely by chance the records of the lawyer who had brought this case to the Supreme Court and also wrote a bunch of laws having to do with various mental hospitals and asylums back then.
00:02:41
Speaker
um And so i ended up using his his papers. He had been dead for some time. I used his papers as the basis for ah this seminar essay, but then later turned that into an article. And then ultimately that became my dissertation. it was a biography of the lawyer and his role.
00:03:00
Speaker
His name was Aubrey Strode. His role in the case of Buck Carrie Buck versus Bell, John Bell, who was the superintendent of a place called the the Virginia Colony for the Epileptic and the Feeble-Minded.
00:03:13
Speaker
So that's how I got involved. I um went on after finishing that degree to do to go to law school, also something I did essentially on a bet. It wasn't really planned.
00:03:26
Speaker
um when i I did a little more writing about this while I was in law school. I graduated. i went and practiced law for a while out in California. And then I was asked to come back and teach there at the University of Virginia, where I stayed for about 16 years and was able and, you know, as part of my job, was able to not just teach in this area, but also to study and write.
00:03:50
Speaker
um And my buy books and most of my articles have come out of questions at the intersection of law and medicine and science, particularly those that have some sort of historical context.
00:04:06
Speaker
did Did you have a sense that you were interested in medical ethics and you know topics like eugenics before Buck v. Bell? Was that an interest of yours? or did this case kind of open up an area of law and thought that you hadn't kind of explored before?
00:04:25
Speaker
No, I was interested in in in the context of medicine and the health sciences more generally. I worked for about three years with organizations that accredited ah health science centers.
00:04:38
Speaker
And so I... i hung around with and worked with people who were faculty members and deans and college presidents, things like that, who went on trips to evaluate medical schools and dental schools and other schools and health science centers. And so I was very interested in the science and the curriculum and how all this stuff worked together.
00:04:57
Speaker
But I was curious, and this was before i I went to graduate school to study history, um I was really curious about why why our system of training that exists in this country now ah took the form that it did.
00:05:12
Speaker
And so I was really, really interested in the whole idea of how universities were formed back in the sort of medieval period and how professional schools um became part of that ah development.
00:05:25
Speaker
So I did have an interest before i before I got into this area. I happened to be, um again, completely by chance at a place which had some major people in biomedical ethics as well.
00:05:40
Speaker
And so i'm I'm not a scientist. I'm not a physician. I've never really studied those areas as a professional, but I've studied the way that they were trained and the questions that come up.
00:05:54
Speaker
So that's kind of a very long answer to the, how the heck did you get here? Excellent. Thank you. So let's start with the case and walk backwards a little to understand how we got to the Supreme Court in the first place.
Carrie Buck's Story & Historical Context
00:06:13
Speaker
In our previous episode, we referred to the petitioner as cb Can you tell us a little bit about who CB or Carrie Buck really was and why she was sent to the Virginia colony?
00:06:28
Speaker
Yes, Carrie Buck was a girl who grew up in Charlottesville, Virginia, um with a ah mother who apparently ended up raising her kids by herself, at least after a few years. She was married and her husband was there, but then after a few years, he wasn't there. we not quite sure exactly what happened.
00:06:49
Speaker
Yeah. ah the The children were taken from the mother, the mother's name was Emma, um when when they were both ah young. And there were two girls, Doris and Carrie.
00:07:02
Speaker
Carrie was the older one. And so when Carrie was somewhere between four and five years old, she was taken from her mother and placed with a foster family um whose name was Dobbs.
00:07:14
Speaker
And when she reached the sixth grade, they took her out of school. She'd gone to the local schools um until she was in the sixth grade and done reasonably well. I found her grades and her grades were or average.
00:07:27
Speaker
um She was given actually good marks for deportment, which is something back in the old days they called, they talked about deportment was basically if you were well behaved or not. um And her teacher said she was.
00:07:39
Speaker
But she only got to the sixth grade, which was not that unusual and you know in the 1920s. um and Actually, before the 1920s, because she was born in 1906, I believe. So she was she was probably, ah um it was it was the early 20s before she came out of school.
00:07:57
Speaker
In any event... um Harry worked in the home of the Dobbs family, ah essentially as a housekeeper. She cleaned up. She ah took care of the um the chickens in the yard.
00:08:14
Speaker
um She did the kinds of things that somebody who was working in a family would do. And for that, she got her room and board. Was that a common arrangement at the time?
00:08:27
Speaker
I think probably it was, and some of these foster arrangements were like that, that children would be raised in an area, but they would be expected to work. And so she worked, ah sometimes taking care of small children, oftentimes just doing cleaning, housekeeping, and cooking, and things around the house.
00:08:48
Speaker
So she's in season in Charlottesville and she is out of school. And one summer, for um the woman whose home she's living in, Ms. Dobbs, ah goes on a trip for a few days out of town and she's left at home by herself.
00:09:07
Speaker
And during that period, um she gets pregnant. um As far as we can tell, this was a relatively short and a week that she was unsupervised, and she was about 15 or 16 years old then.
00:09:22
Speaker
We later find out that the the young man who ah was the became the father of her baby was a relative cousin of the foster family where she was living.
00:09:36
Speaker
But that gets us a little bit ahead of the story. Carrie is bound to be pregnant by her foster mother. Everybody's in shock. These people are or modest and mean. They're certainly not wealthy people at all.
00:09:51
Speaker
In fact, they're living in ah in a relatively ah marginal part of town right on the railroad tracks. And she is the and and family is is supported by ah Mr. Dobbs, who works as a repairman on the local streetcar line.
00:10:08
Speaker
And Carrie finds herself pregnant and tells her her foster mother this. And so they they, the parents, immediately decide it's time to ah get her out of the house.
00:10:23
Speaker
And so they go to the doctor, they go to the other officials, and they end up um essentially swearing out her a an affidavit which says that she needs to be taken to the state colony for the epileptic and the feeble-minded because she's feeble-minded.
00:10:44
Speaker
Now, at that time, there was a pretty broad definition for what feeble-mindedness was. um But their argument, which was echoed by many of the people who, in the professional roles, was that a girl like Carrie, who came from a not you know a disreputable family, her mother had had trouble with the law.
00:11:05
Speaker
There were some some claims that she had had been ah working as a sex worker, other some evidence that she may have had a drug problem.
00:11:16
Speaker
All this was very fuzzy, but the big the big issue was that Carrie was pregnant and she was not married and she needed to get out of that house. And so she was sent to Lynchburg. That's how she gets to Lynchburg.
00:11:28
Speaker
um um'm I'm saying Lynchburg, it's actually Amherst County, but it's the Virginia colony, which is across the river from the city of Lynchburg, Virginia. Carrie has the bad fortune, not only of Lynchburg,
00:11:42
Speaker
of getting pregnant in this in this untimely way without a husband, but also of arriving at the colony at just the point when the state of Virginia had just passed a new law, which allowed people to be sterilized if it were in the benefit to the benefit of the state.
00:12:00
Speaker
if if If sterilizing them would mean that they would not produce any more people like them, meaning people who were poor, people who were um maybe the phrase they used was defective, meaning someone with a questionable cognitive skills, ah perhaps criminal tendencies, um perhaps um moral deficits, long lists of possible things that might be wrong with them. And that's why they got sent to the colony.
00:12:31
Speaker
And that's why they were scheduled to be sterilized, because the theory of the law was that if you didn't let people like this have children, then there wouldn't be any more children like them, meaning there wouldn't be people who would have to be institutionalized in prisons or mental hospitals or homes for the feeble-minded.
Legal Battles and Supreme Court Review
00:12:51
Speaker
So Perry shows up at a time in which this law just goes into effect. And her baby is taken from her before she goes to the colony. um and she is thrown into the middle of what she doesn't realize at the time but later discovers is ah really a whole national movement ah to allow people to be sterilized.
00:13:14
Speaker
And so that's how her case gets to the board of the colony. They approve the sterilization, and then according to the the pieces of the law which go into effect,
00:13:26
Speaker
She is able to challenge it, and so they appoint a guardian for her and a lawyer for her who will take her case as a test through the court system in Virginia and then maybe all the way up to the federal courts in the United States Supreme Court.
00:13:44
Speaker
That's how Kerry's case eventually gets to Washington, D.C.,
00:13:49
Speaker
I do have a ah question. i I feel like I'm about to derail things just a tiny bit, but I just wanted to have follow up real quick. um You said, well, you used the term defective.
00:14:04
Speaker
And I wanted to know, is that was that how it was said back then? Is that a term of art? um I will say, you know hearing it now, you know it's it's got a little bit of a feeling to it.
00:14:16
Speaker
Sure. Most of the language that was used, um to describe ah people who were institutionalized or people who were subject to the law, for that matter, um is language that's jarring today because we usually don't hear these terms that much anymore.
00:14:37
Speaker
Most of them have been scrubbed out of the law books, um but they were very common. They were very, very common until a very few years ago. So ah someone who was mentally deficient, that was a term for it,
00:14:50
Speaker
um And there's there's a great deal to be said about that, but you know how did you measure it? um How did you recognize it? Who fit into that category? But without getting into all that detail, certainly that was that was the language they used.
00:15:06
Speaker
They talked about people who were feeble-minded, people who were um sometimes just colloquially mentally slow, they would say, but they would also say defective or mentally deficient.
00:15:19
Speaker
curious, you you obviously, this case you know became a whole thing, but where it started from, as you said, Kerry was institutionalized.
00:15:30
Speaker
Can you walk us through a little bit what the Virginia colony specifically was at the time and why it was important for them and specifically the individual in charge to have this case go to the Supreme Court?
00:15:48
Speaker
Well, the Virginia Colony, um there's a lot of there's a lot of speculation about why you would have a place like that. um And and i I often push back on the speculation because I think you need to understand what the context was ah in 1910 or so when they, or even earlier, when they started talking about building such a place.
00:16:12
Speaker
And the conversation at the time was, um we don't have anywhere to put people. who are um cognitively delayed or maybe um cognitively um arrested.
00:16:30
Speaker
they're they're They're never going to develop into kind of adult thinking person. What do we do with these people? Well, the reformers, people like Dorothea Dix in the nineteenth century,
00:16:44
Speaker
said what we do with them is terrible because we do two things with them. Well, actually three. The first thing we do is we just let them roam the streets. We turn them out of our homes and we let them roam the streets and they die there because they're abused and in and they're um they're without any protector.
00:17:01
Speaker
And that's terrible. um The second thing we do is we put them in jail. And we put them in jail because, you know, people don't want to look at them. People don't want people wandering around.
00:17:14
Speaker
when the When the first institutions were built in the United States, you have Benjamin Rush. This is in the 18th century. You have Benjamin Rush, famous physician in Philadelphia, who gets together with his friend, Benjamin Franklin,
00:17:28
Speaker
And they go to the legislature and in Pennsylvania and say, we need some money for a hospital to take care of people because ah dr Dr. Rush says, because, you know, that's the right thing for us to do. And we know how to treat people. and We should have a place where we can do it.
00:17:42
Speaker
And Franklin, they tag team this one, the legislature. And Franklin comes in and says, yeah, and besides, they are a terror to their neighbors. So he's on one, you know, once it's good cop, bad cop, the doctor's saying we really ought to be compassionate and take care of people. And Franklin's saying, yeah, and they scare the hell out of people. So we've got to get them off the streets.
00:18:03
Speaker
So the the argument that there is a social benefit as well as a protective role for government. um in building institutions and funding institutions is there from the very beginning in the colonies, really.
00:18:17
Speaker
And then you've got an institution where you can send people. Well, the institutions turned out to be mostly for people who were seriously mentally ill, suffering from what we would today consider psychotic disorders, unable to take care of themselves, perhaps suicidal disorders.
00:18:36
Speaker
And so what do we do with, those are the most seriously ill people, but what do we do with people who are not seriously ill, but just are unable to function? The people that back then, maybe in the 19th century, they might have called feeble-minded.
00:18:51
Speaker
um harmless perhaps, but unable to take care of themselves. What do we do with them? Well, if we put them in those institutions, then they're going to be preyed upon by those other people, some of whom are quite violent, and that's not good. And besides, it's very expensive to do that.
00:19:08
Speaker
um And if we put them in jail, it's even worse, even if we're doing it for all the all right reasons to protect them. still a terrible place to be. there and They're there with criminals. So why don't we have a special institution?
00:19:21
Speaker
A special institution is designed specifically to take care of people who are not able to function in society because of their their mental limitations. And that's where places like the Virginia Colony comes in.
00:19:35
Speaker
it's opened It's opened for people with cognitive disorders and then eventually ah for people called cognitive disorder excuse me i mean seizure disorders.
00:19:47
Speaker
like epilepsy, ah something that couldn't be treated at that time was greatly misunderstood, something which now we treat as a matter of course, but back then not so.
00:19:58
Speaker
So we have people who have epilepsy, but we also have people who are cognitively disabled, and that's a place where they can be taken care of. So at the very beginning, this is a very philanthropic notion.
00:20:12
Speaker
um Those places, though, tended to be, and this is by plan, out in the country, um They could, they could, there was a kind of magical size.
00:20:23
Speaker
You had to be over a certain size to take advantage of the economies of scale, to have enough people to work, to have enough people to take care of, to to to function with staff, um maybe to have a farm, maybe to have small manufacturing units, ah things that will make this this little city in the country self-supporting.
00:20:45
Speaker
And so the little places like this got bigger and bigger because there were so many people who needed that kind of care. And also because those places were were used not just to send people who had perhaps cognitive deficits, but also what others thought were moral deficits.
00:21:05
Speaker
And that's where we come to people like Carrie Buck, who's somebody who's thought to be feeble-minded, but really feebly inhibited, unable to control herself sexually. So this is a case very, very much about sex.
00:21:19
Speaker
And I say this all the time, and people usually laugh, but it's a good way to remember what the motives are in a case like this. The first motive is people like Carrie Buck who are getting pregnant because they're having sex, but they're not going to be able take care of their kids.
00:21:35
Speaker
because they're not married, and maybe they'll have more of them. And what happens then? Well, then somebody else has to pay for them. And the somebody else is going to be a charity or more likely the state.
00:21:46
Speaker
Because they will end up, these children will end up in homes for orphans or family homes. They will end up on the streets. They will end up, through no fault of their own, being the victims of ah of a cruel society.
00:22:00
Speaker
And the nicest thing we could do for them, say the reformers, is to make sure that they don't get born. And that'll do two things.
00:22:11
Speaker
it will It will take away the cost of this unruly sexuality in people like Gary Buck, they say. And it'll also save us money because we won't have to pay for those children. No no children are the feeble-minded.
00:22:27
Speaker
No need for facilities for the feeble-minded. Our taxes will go down. These are very explicit promises that are made, and it's easy to document that this is the way that they describe the process.
00:22:40
Speaker
We want to we want to get rid of people who are unable to control themselves sexually, unable to control themselves because they drink or do drugs, unable to control themselves, and so they commit crimes.
00:22:53
Speaker
We want to get rid of those people by making sure that they're not born. And that's why we have places like Lynchburg, which allow us to treat people, but also to sterilize people. So that's the motive behind both institution building and the law.
00:23:09
Speaker
So the your social failure but and moral failure becomes potentially my financial burden. Exactly.
00:23:21
Speaker
Honestly, that doesn't sound that historical to me. It does not at all. It's it's a very old argument. was made before certainly was made before the people in Virginia decided to build the colony.
00:23:33
Speaker
You can go back to you know i mean The the easy easy study is to go back to Elizabethan England and and look at the arguments about the poor laws and how they ah they work and how people, you know if you if you give them too much corn, they just they just have more children.
00:23:53
Speaker
And the word burden is used constantly. So it's it is about the burden to everybody else of someone else's missteps.
00:24:04
Speaker
That would be the kind way they would put it. Right. it It definitely has a Dickensian feel. Oh, yeah. For sure. Yeah. yeah So could you tell us a little bit about the gentleman who ran the Virginia colony at the time?
00:24:22
Speaker
ah We've read your book, and this guy stands out for sure. ah Tell us a little bit about, I believe the gentleman's name is, ah is it Dr. Pretty?
00:24:33
Speaker
Yes, Dr. Alva Pretty. Dr. Pretty is an unusual and and and fascinating character for from another different a number of different directions. um he is a physician.
00:24:46
Speaker
um He also spends some time in the legislature, so he has a political side. um He ends up being appointed to oversee what becomes a very large institution, a small city, you know, 4,000 or 5,000 people.
00:25:04
Speaker
um it's important to remember, and and this is something that's also documented, that when those institutions that I just described were growing in America, it was pretty much understood that the superintendents who were always then, they were always physicians, um were kind of like little kings.
00:25:26
Speaker
They weren't the mayor, but they were overseeing a town just like a mayor would. But unlike a mayor, they didn't have any citizens to to respond to or to be accountable to. They had to be responsible to the government for how much money they spent.
00:25:43
Speaker
But they were they had the potential for being little dictators. And this is the way that they were written about within the medical press at the time. That you if you ran an institution like that, you had almost literally the power of life and death over the people who were there.
00:26:01
Speaker
Now, does that mean they were all monsters? No. um We have lots and lots of examples of ah particularly noteworthy people who ran large institutions. And um we also have plenty of examples of people in those roles who were abusive.
00:26:19
Speaker
um Dr. Pretty, it turns out, um, his patients, um, would have described him as both of those things. Some of his patients certainly said and thought he was abusive.
00:26:33
Speaker
Other patients thought he was a saint. There was a clock that was made that used to sit in what is now the, the Virginia colony grounds, the the central Virginia training school. it's It was called when it was closed.
00:26:50
Speaker
Um, there was a clock in the administrative building there that was made by one of the patients and given as a gift to Drs. Pretty and Dr. Bell. um And there were all kinds of letters written by families to those doctors praising their work and and how well they had been able to take care of family members of others.
00:27:15
Speaker
So you have you have people in there, you know, you have people with two different perspectives on the men, and they're all men, that we're talking about here who were the doctors in this case. Dr. Priddy had a motive um for sterilizing women and getting a law that would would grant him explicitly the right to do that because he'd already been doing it.
00:27:40
Speaker
He started doing it in ah the middle of the, ah around 1915 or so. um He sterilized several dozen people One of them turned around and the family took him to court.
00:27:56
Speaker
He was very angry. um He had no desire to make the trip all the way to Richmond, Virginia, um so that he could be questioned in court by a bunch of hostile lawyers.
00:28:09
Speaker
He was embarrassed. He was insulted. And he was sure he didn't want to do it again. And so he went to his lawyer and said, we need a law that will allow me to do this. In fact, that's what the judge told him. He didn't lose the case, but the judge said, yeah you got to quit this surgery out until until you get specific directions in the law that says you can do that. And so he goes to his attorney and says, i want the law.
00:28:33
Speaker
We want to get the law changed. And that's when the machinery starts to collect information about what kind of law they might need and where they might get it. And that's where what they get directly into the national eugenics movement, because the eugenics movement had for, by that time,
00:28:51
Speaker
more than two decades, been talking about the possibilities and the realities of writing laws that would allow people to be sterilized in state institutions. and And there were a dozen, more than a dozen states that already had these laws before Virginia.
00:29:06
Speaker
So Dr. Pretty knew it could be done. He told his lawyer, let's get it done here because I don't want to go back to court again. And so that's where the sterilization statute comes from in Virginia.
00:29:19
Speaker
It is a statute that allowed Dr. Pretty to do exactly what he'd already been doing. But in this case, he was given immunity. They couldn't sue them if he did it to them.
00:29:32
Speaker
And so why was it important for the colony and for Pretty to to test this law? Well, Dr. Pretty was really happy that it passed, and he actually went to his lawyer and said, great, we got the law now. Let's just start them up. Let's start sterilizing them.
00:29:50
Speaker
And his law said, no, no, no, wait just a second. You're getting ahead of yourself. the We've got the General Assembly that passed the law. The governor signed it, and this is 1924, and it's on the books, but it can still be challenged.
00:30:03
Speaker
And if it's challenged, you sterilize somebody and they go to court, then you might lose. The law might be overturned. The law might be found found to be unconstitutional, and then you're back where you started.
00:30:18
Speaker
And we don't want that. So we we really need a case that will go all the way through the court system until we get a validation that this this law meets the standards, both of the state of Virginia's constitution as well as the United States Constitution.
00:30:33
Speaker
And so that's what happens. They have a case. The case is appealed to the state Supreme Court. They say, yes, it's okay here. And then the last stop is at the court in Washington, D.C., where the federal constitution is interpreted as allowing this procedure.
00:30:51
Speaker
Could you walk us through the – we just went through all you know all the way to the Supreme Court there, but the first hearing is at the Colony.
00:31:03
Speaker
Could you describe that hearing a little bit, the who was involved and what the arguments were? Yeah. Well, there's a whole series of legal steps. And I think that um the first one that Carrie Buck is involved in is at the Conley, but actually there's one before that.
00:31:21
Speaker
um The very first one is ah is a meeting with her foster parents who go to a magistrate. And they meet um two doctors and they swear out um commitment papers.
00:31:37
Speaker
And so that's a kind of mini hearing itself. And they fill out those papers and they're asked a series of questions about, you know, whats what's going on here? Why do you want this person sent to the colony? Are they feeble minded?
00:31:50
Speaker
Are they a moral delinquent person? Are they epileptic? You know, what what what reason do you have for getting them in? And so the foster parents at that hearing essentially say that Carrie is epileptic and that she's feeble-minded and that they've known this for many years because i've known her since she was a child.
00:32:08
Speaker
and And she just had a baby and she's not married. So she must be a moral delinquent. What kind of girl would do that? So that's the step that gets her to the colony.
00:32:18
Speaker
The commitment hearing is the first step. And there's a whole set of law that allows that step. The second one, the second hearing a hearing that Kerry attends is before the board of directors of the colony, because the law was written to say that Dr. Pretty couldn't just do this on his own.
00:32:37
Speaker
There had to be a vote of the directors of the institution. which met every few months, and they they would come up with a list of people and these are the people that need to be sterilized. you know um here Here are the people who have been appointed to represent them, the guardians, um and this is the claim that's made of them. there they They fit the characteristics that are laid out in the law.
00:33:05
Speaker
And the law said that someone who could be sterilized was socially inadequate. And that might include everything from criminality to poverty too to, and again, or uncontrolled sexual impulses.
00:33:22
Speaker
So they argue at that hearing that Carrie Buck is one of those people. that she's limited in her and her ability to think through things, that she's limited in her ability to control herself, um that she's a moral wrinkling because she's having sex and she's not married.
00:33:40
Speaker
And the evidence, of course, is this child. And there's something also important Her mother is already at the facility. So we've mother there. We've got now Carrie there.
00:33:52
Speaker
And there's some evidence that the daughter who is not there, who's been left behind, also has some kind of what they call a defect. So i've got this whole family of people.
00:34:05
Speaker
That's what the law was written to address. And so the board of of the hospital, excuse me, the board of the of the colony, stamps that one and says, yes, go ahead with the operation.
00:34:19
Speaker
And then the next part of the law allows for the person who would be subject to surgery to challenge that decision. They have to go to court to challenge that decision. And the machinery for that, of course, involves having lawyers.
00:34:33
Speaker
ah person There's a person who's named as Carrie's next friend. That's ah that's a legal term. Basically, they're guardian and light, and they're guardian for the purposes of a lawsuit.
00:34:44
Speaker
And they go with them to speak on their behalf. Carrie was underage, so you would have the same way that a parent would speak for a child. So she's there, she's got her guardian, and they appoint a lawyer um who is going to be paid by the state to take this case to challenge the law.
00:35:04
Speaker
So the first hearing results in an order for sterilization. The next stop is at the local courthouse in Amherst County, Virginia.
00:35:15
Speaker
And that's where the second part of the story begins and the trial occurs.
00:35:21
Speaker
And how did her defense counter the colony's case?
00:35:28
Speaker
Well, that's that's one of the more distressing parts of this story because her defense really never does challenge the evidence is put on by the colony. The trial lasts about four or five hours.
00:35:43
Speaker
um The state puts on about 10 witnesses. School teachers who knew of the Buck family, neighbors, um one person who I believe was supposed to be supposed to have known a half-brother of hers ah by some other man.
00:36:04
Speaker
um a whole, the doctors there at the colony, a whole bunch of people who are saying, yes, she is socially inadequate for all the reasons they said at the hearing. um she's She's a member, says Dr. Pretty in his his own written statement of the poor white trash of the South.
00:36:23
Speaker
So all the evidence that's put on by the state points towards having her sterilized. Her defense doesn't really question the factual basis of what the state is doing.
00:36:39
Speaker
It doesn't really question whether or not Carrie, for example, could read and write, which she could and did, ah that she'd gone to school, which she could and did, that she performed reasonably well there, that she maybe wasn't such a bad person. She belonged to two different the church choirs,
00:37:00
Speaker
must have had a nice voice, but we never hear that at the trial. We don't hear any of that. Her teachers are not called, her grades are not introduced, ah her choir masters are not called as a witnesses. No one speaks on her behalf.
00:37:14
Speaker
No witnesses, no evidence presented for her, which to, I think most people would seem strange. um To those of us who are lawyers, it seemed very strange.
00:37:29
Speaker
And after doing research on her life, ah it seemed not just strange, but um intentionally
00:37:39
Speaker
maleficent. Because we do know that they were just as aware of her schooling and her social life and her industriousness as a worker for that matter.
00:37:53
Speaker
that and And yet none of that is presented at the trial. um So this is a case which I have concluded was set up from the very beginning for Carrie to lose.
00:38:06
Speaker
And so have kind of a dumb question, but you know, Jarrett and I aren't lawyers. um
00:38:15
Speaker
are Absolutely not. are So isn't the lawyer supposed to try or to to, you know, if they have all this evidence or information and they can, they have it within them to do, to put on a ah case, aren't they, shouldn't they, aren't they supposed to do that? aren't Isn't that what being a lawyer is I don't know, as a lay person?
00:38:41
Speaker
Yeah. Absolutely. um Without any question, that's the lawyer's job. The lawyer's job who is to defend the interests and the rights of the client as zealously as possible.
00:38:54
Speaker
You know, and there's an little old saying, which everybody's heard, which says if you're in court and you and the facts are on your side, you ah pound the facts. And if the law is on your side, you pound the law. And if neither the facts or the law are on your side, you pound the table.
00:39:10
Speaker
um Well, in this case, we got no pounding. we we we We had a challenge of the law on very broad constitutional grounds. And that's very clear when you read the transcript.
00:39:23
Speaker
um the first stop should have been facts, should have been, who is this person? What is this theory that says that people inherit all the bad habits and the bad propensities of their parents and grandparents?
00:39:37
Speaker
Do have anybody who would argue with that theory? We've got experts for the state who come and said this theory makes sense. where's Where are the people on the other side? who else Who would come and speak against it?
00:39:49
Speaker
As it turns out, there are lots of people available to speak against it. And they are writing articles and writing books and and speaking publicly about this. And they're famous people. theyre you know They are just as qualified and just as noteworthy as the people who speak, actually more so than the people who speak on behalf of the state of Virginia in this case.
00:40:09
Speaker
And yet they're nowhere to be found. So even even the questions of the validity of the law as a scientific matter, forgetting all of the facts, which I've already recited, which would have been supportive of Kerry, even if you didn't bring up those facts, which you should have, you still would have a lot of reason to attack the law itself.
00:40:30
Speaker
And Irving Whitehead, who for my money is the real villain of the piece, um, Irving Whitehead doesn't do that. He's supposed to be representing Kerry Buck.
00:40:41
Speaker
He makes only the broadest kind of statements about the problems that might exist with the law. He does no investigation. He apparently doesn't even interview his client.
00:40:54
Speaker
um There's no evidence that he did. um and so he doesn't know any of this stuff or he certainly doesn't bring it up. And yet he's paid quite well. This is not a charity case. He's paid for his work.
00:41:07
Speaker
In fact, he ends up being paid more than the lawyer for the state is paid. So you're right. You don't have to be a lawyer to realize that when your lawyer is not defending you, um you're getting a bum deal.
00:41:23
Speaker
So the... This is a gentleman who's paid by the state, right? So both lawyers were paid by the state, one to represent the state and one to be antagonist to the state.
00:41:37
Speaker
but Right. Was there anybody watching this trial who at the time who was commenting on what seems like an obvious conflict of interest?
00:41:50
Speaker
was there Was there a good deal of publicity about this? ah No. um I think that any person in this country, in almost any town, can walk into a courtroom.
00:42:08
Speaker
You don't even have to be a citizen. You just walk into the courtroom. There are courts in every town in this in this country. And one thing you'll find is relatively few people sitting around watching.
00:42:20
Speaker
You'll find people who are bringing lawsuits for every possible kind of thing. yeah know They get bit by the neighbor's dog. They get run over by the neighbor's truck. They they yeah lost their house in foreclosure, all kinds of terrible things that happen to people.
00:42:35
Speaker
And they may be suing you know to get something back or to get money. Or it may be a criminal case in which they're accused of doing something. And in most of those circumstances, there's not a lot of spectators.
00:42:49
Speaker
and The only spectators may be somebody else who's waiting to get their turn in the court. So it's just not a normal thing that you have media coverage of every little bitty case. Now here is a poor girl from a small town in Virginia going to an even smaller town where she's put on trial.
00:43:10
Speaker
um Nobody knew about this. Nobody knew that this case was going anywhere. It's only after it goes to the trial and then ultimately goes to the state appellate court that anybody learns about it in the newspapers.
00:43:25
Speaker
So questioning um the circumstances of the lawyers at that point was was just not likely to occur. But a bigger point is um it shouldn't matter.
00:43:39
Speaker
it it normally We would normally you know raise the question that you're raising, which, wait a minute, both sides being paid by the same people. Is there something strange going on there? Well, let me give you an example.
00:43:51
Speaker
We have legal aid bureaus in all the states. We have lawyers who volunteer, ah lawyers who are paid out of public funds um to do exactly what we're describing.
00:44:05
Speaker
So I could go to court in Virginia and I could be paid as a lawyer to represent a client and the pay might come out of the out of the state.
00:44:18
Speaker
My obligation, nevertheless, is not to the state. It's to that individual. ah My oath of office is that I will uphold the laws and represent the people that I'm supposed to represent, regardless of who's paying for it.
00:44:32
Speaker
So the payment certainly raises a question, but it doesn't it doesn't by itself um prove anything. And there are lots of other cases in lots of other states at the same time in which this was the arrangement, and yet the lawyers did a good job.
00:44:53
Speaker
I had completely forgotten about the whole, if you cannot afford a lawyer, a lawyer will be appointed for you thing. Yeah.
00:45:04
Speaker
And so, okay, so ah just to put it very mildly, her her lawyer wasn't really wasn't really trying then. So then how did this case get to the Supreme Court? Was this more of the fix, so to speak, and and the test?
00:45:22
Speaker
Well, it was, as I said earlier, it was intended to go as far as it could. Supreme Court would have been the last stop no matter what. ah But the people who wrote the law, Aubrey Strode, the lawyer who wrote the law, and who then argued it for the colony as representative of Dr. Pretty, he told them that, you know, we really would like this to go all the way to the Supreme Court because then there won't be any questions of whether it's valid.
00:45:49
Speaker
And so that's what he that he, he definitely wanted that to happen. Yeah. I don't think there's any, um I no longer have any doubts um that the people who were involved, but well, the lawyers who were involved in this case knew what was going on.
00:46:10
Speaker
um First time I read this case transcript, I was a graduate student. And I scribble all over it. Like, how did this happen? There are all these questions.
00:46:23
Speaker
You know, you't you don't have to watch too much TV law to realize that cross-examination is a real thing. And when someone makes a broad statement that can't be supported by facts, that they get questioned. And yet here's here's some doctors getting up and saying, this woman is feeble-minded and it runs in her family.
00:46:39
Speaker
and And there's, you know, the visual this is the law of Mendel and heredity, and this is how it works. And Nobody questions how certain he is about that or whether he was ever wrong about that or whether there are any other cases like this.
00:46:57
Speaker
Turns out there weren't. um Harry Laughlin, the man who also testifies in the case, is the only one they'd ever had. Three generations of people in the same family. Perfect case.
00:47:08
Speaker
So it wasn't like this happened every day. And yet Whitehead never asked that question. So I've been convinced for a long time that Whitehead knew that what he was doing was wrong.
00:47:21
Speaker
I've also also been convinced because i've I wrote a biography of Aubrey Strode and I went through his papers in great detail um that he was a real lawyer and he was a good lawyer ah in terms of his technical prowess.
00:47:34
Speaker
um And he knew what good cross-examination was and this wasn't it. The fact that his one of his best friends from childhood was the guy on the other side, um again, in a small town, it's not unusual that you know the lawyers and they may be friends.
00:47:49
Speaker
But it is unusual that you have this whole combination of conflicts. it's a It's a friend of yours, paid by the same people, and the one guy's not doing a job.
00:48:01
Speaker
So i think that to say the fix was in is not overstating the case. little frightening that I'm trying to like exaggerate, and you're like, no, that's accurate. Call a spade a spade, I guess. so we get to it's It's easy to criticize you know litigation strategy after the fact.
00:48:24
Speaker
you know Once somebody loses you, you say, i would I would have done it differently. But in this case, we've got the records. We've also got the records of people like Whitehead,
00:48:36
Speaker
and realize that he is a man who is supportive of sterilization at the time which Dr. Pretty is being sued for sterilizing people because there's no law that allows it.
00:48:49
Speaker
Irving Whitehead is on the board of directors of the same institution. And what does he say? He votes in favor of sterilization.
00:48:59
Speaker
After Dr. Pretty is told in court, don't do this until you get the law changed, Irving Whitehead writes him a letter saying the judge was wrong. He should have thrown this out.
00:49:10
Speaker
You did what you were supposed to do. That's exactly what we need. He was a very strong supporter of this process and even voted for it. So that's the third thing. He's friends with Strode.
00:49:21
Speaker
his he's He's paid by the state. He doesn't present a defense. And he even supports the process itself and was a member of the board of the institution where it's happening.
00:49:34
Speaker
And the last piece is after it's over with, after the judge in the trial court says, yep, Kerry Buck, you lose. State of Virginia, you win. Go ahead with sterilization.
00:49:46
Speaker
Whitehead then goes and reports to the board of directors of the state hospitals, which is a group that met every several months of all the large institutions. And he goes and reports, even though he's the losing party, he goes and reports to them. And it says in the minutes, and Mr. Whitehead appeared and told us that the state won the case against Dr. Priddy and He told us that this is the best possible result.
00:50:17
Speaker
And as we hope, this case is likely to go all the way to the Supreme Court. So he says it. He says this is the best possible result. He losing is the best possible result.
00:50:29
Speaker
And that kind of convinces me that he's and it's in the back. Yeah. Gentlemen, gentlemen i have lost. Mission accomplished. Exactly. Wow. So this case, this so this happens in the this is an appeal.
00:50:46
Speaker
And now, how does it how does it eventually wind its way in up to the Supreme Court? is ah like it carries doesn't It doesn't sound like Kerry is really even a participant in this process at this point.
00:51:02
Speaker
No, it's ah it's a typical case in the sense that once the trial is over, the
00:51:09
Speaker
The person who brought the case, for that matter, the parties, both parties, don't really have any involvement. Now, if you were if you're a sophisticated person and your lawyer and engage involves you in the process, they might say, well, we're going to write a brief to the Court of Appeals, you know, the Supreme Court of Virginia.
00:51:30
Speaker
We're going to write a brief. Do you want to see it? Maybe they would do that. They wouldn't do that for most people. They would just say, we're going to file papers in appeal, and that it would go up. no appearance by the client client at all.
00:51:42
Speaker
ah Most appellate arguments are made where the client is maybe in a different city. And anybody who's ever argued one will tell you, again, you're usually in an empty room. I've done this here.
00:51:53
Speaker
You're in a room, other lawyers, some judges in robes, um but it's not like there's a whole crowd of people there. And your client is rarely there. So, you know, sophisticated corporate clients might, you know, send their own people there, but most people don't go to those.
00:52:10
Speaker
So, again, we're we're we're really dealing with the case that's on paper at that point. The judges who are making the decision at the appellate level are looking at records. They're not questioning people. That's already been done. They're looking at the transcript of what happened.
00:52:25
Speaker
If there's evidence that's been introduced, letters, things like that, they look at that. If there's a law that's being challenged, they obviously have to look at that. But it's not about talking to the people who were involved in the event.
00:52:36
Speaker
So the Supreme Court of Virginia reaches the same conclusion, says, yes, this is constitutional in the state. And so the next step is to appeal that decision, which Irving Whitehead does to the United States Supreme Court,
00:52:51
Speaker
Same process goes on. Papers filed in the court, an application to be heard. It's granted. That's in October of 1926. And then they set the case for argument, and it's and it's argued.
00:53:06
Speaker
and then And then in May of may the 2nd of 1927, the judges, the justices, issue their opinion. And the opinion, of course, is the famous line from Oliver Wendell Holmes, which describes the Buck family as as ah family that is hereditarily defective, and a family that's going to produce more of the same kinds of people like Carrie Buck and a mother, a daughter,
00:53:35
Speaker
and a granddaughter, all of them apparently feeble-minded. And Justice Oliver Wendell Holmes then, who's given the job of writing the opinion in this case for the court, an almost unanimous court, eight justices in favor, says it's better for all the world if people like this, rather than being starving to death because they're imbeciles or or dying because they're criminals, ah it's better for them not to be born at all.
00:54:03
Speaker
and and And he underlines that three generations and says three generations of imbeciles are enough. So that's the result out of the Supreme Court. Again, Carrie Buck is not there. Her family's not there.
00:54:16
Speaker
The only people there are the lawyers in the case. So another silly question. um so if her lawyer... didn't try, isn't trying, um and you get to the Supreme Court and it's all basically a record review, but like the record that exists is crap.
00:54:39
Speaker
It sounds to me like if he wasn't... doing, you know, if he wasn't trying and whatever down at the at the trial kind of part where she was there next to him and they had all these witnesses, it goes up to the Supreme Court. And so I guess the Supreme Court only has like half the story.
00:54:57
Speaker
Is that what this means? Yeah. the The appellate courts do not have the the luxury of saying, gee, this is funny. why don't we go ask some more questions? they They are charged with deciding on a record.
00:55:13
Speaker
um They look at the record, lawyers on both sides, you know good, bad, indifferent, and there are plenty of all sorts, you know good, bad, and indifferent.
00:55:24
Speaker
um And they look at the record and say, what evidence is here? Is there enough evidence to support, if it's a criminal chase, is enough evidence to support the charges? If it's a civil case, which side has presented the most the most evidence um that will yeah know win the case?
00:55:41
Speaker
And in this case, all the evidence goes for the state. There's no evidence on the other side. So it's not a hard call on the evidence grounds. The hard call is whether or not the whether or not this statute, which allows the government to operate on people who may think shouldn't have children, that that government is, does the government have the power to do that?
00:56:06
Speaker
Does the Constitution somehow grant governments the right to operate on people because they think they should for the benefit of the rest of society. So that's the big question.
00:56:18
Speaker
And the court at that time says, yes.
00:56:22
Speaker
Holmes uses an old an old line and it's repeated in lots of places. Most of the Holmes opinion is not new It is the language that he uses is is cribbed from a a number of different writers.
00:56:36
Speaker
But this this one line he talks about is is an old analogy of, well, we send people off to war. So obviously we can send people be killed. If we kill them, we ought to be able to operate on.
00:56:49
Speaker
Well, not exactly. ah Those things don't necessarily follow one from the other. But that's the argument that he makes. We have seen more than once, he said, where the society may call upon the best men for their lives.
00:57:07
Speaker
And, of course, he's talking about himself. He's talking about being in Civil War. He's 20 years old. He goes off and goes to a battle and gets shot. Family comes and picks him up, patches him up, sends him back, and gets shot again.
00:57:23
Speaker
He doesn't want to go back. He goes back to Boston. He's almost dead. They find him on the side of the ah the battlefield. His father's a famous physician, so he knows a little bit about you know what people ah endure with wounds like that. Takes him home, patches him up, and shames him into going back again. He goes back to the third time, and he gets shot again.
00:57:44
Speaker
So when he writes the opinion in the Buck case, he's really talking about himself, his generation. He never quite got over, and it's understandable. he He said we were touched by fire, and he meant exactly that. He was shot three times. so So if I can get shot three times, we can operate on this girl in Virginia. That was basically the logic.
00:58:05
Speaker
And he's he is supported by votes from everyone else on the court, including Chief Justice Taft, who by then had been President of the United States and Chief Justice of the Supreme Court.
00:58:18
Speaker
um People like Brandeis, famous famous Justice. um A number of others of of less repute, but the one who stands out is the one who dissented, and that was a man named Pierce Butler.
00:58:33
Speaker
And Butler does not leave a an opinion, so there's no... There's no written record as far as I've been able to find, and for that matter, anybody else. He never spoke about publicly what his reasoning was.
00:58:46
Speaker
There's a lot of speculation. that because he was a Catholic, he was against this. um And that may that may have been the the the point. Holmes thought that was the point and said at one point he thought you know he was going to go with the church.
00:59:01
Speaker
um And the the Roman Catholic Church had been pretty consistently um against um operations like this, although there wasn't a it wasn't until the nineteen thirty s that there was an actual official statement from Rome on this.
00:59:18
Speaker
So anyway, that's that's Butler. He was the dissenter, and and so it was an eight to one decision, and the eight carried the day. You ask about Whitehead and and his his arguments and what happened at that point.
00:59:31
Speaker
Whitehead was in a really clumsy situation then, because it turned out that after the state decision in Richmond by the Virginia Supreme Court, after that opinion was issued, there was some press.
00:59:48
Speaker
And there were some groups around the country who were watching these cases. And one of them was a group was a Roman Catholic men's group. And they had been monitoring cases like this.
00:59:59
Speaker
They had some very able lawyers on their in their ranks. And they they wrote a letter to Whitehead and said, here's a bunch of things you might have said. we will be happy to help you file a petition for rehearing.
01:00:14
Speaker
So Whitehead was kind of embarrassed. because they they sent a very well done draft and said, here are some things you might raise.
01:00:25
Speaker
Here are ways you might focus your argument a little bit differently. um And you you you know you don't have to even give us credit. Just just do it. And Whitehead said, well, okay.
01:00:38
Speaker
He took their work. um He ended up filing something, which he was paid for. ah They were not. He changed it a little bit, though, because he was embarrassed that they had raised some questions that he should have raised at the trial and did not.
01:00:58
Speaker
And he thought that that was going to be, you know, that was going to look really bad if he suddenly brought them up on appeal. First of all, they probably wouldn't listen to They would said you lost your chance. And it wouldt but would have been an embarrassment for him to admit that he should have done it anyway.
01:01:11
Speaker
So it would have been ineffectual as well as embarrassing. ah So they filed the petition for rehearing, which meant that there was a delay in the actual sterilization operation.
01:01:22
Speaker
But come October, when the court met again for the first time, they just dismissed that petition. And Kerry's sterilization actually occurred in October 1927.
01:01:36
Speaker
I really want to get into impact of this decision. But before I get there, just really quick going back to Butler. There was a note in your book that Nikki and I both sort of independently kind of circled.
01:01:52
Speaker
about, I believe it was Taft had, had maybe put some pressure on dissents not being written. You can dissent, but, but don't explain yourself.
01:02:05
Speaker
yeah Do you have any insight into, and into any further insight into that? This is less a rule than, than a convention or a habit. Um, and I don't think Taft, um,
01:02:19
Speaker
I don't think Taft had any particular hand in it. Taft was the chief justice, and so he, you know, He could have conversations about anything he wanted with the rest of the justices.
01:02:32
Speaker
But when I attempted to do an analysis of how likely it was that someone would file a dissent, ah that the librarians of the Supreme Court Library there in Washington had already done that sort of thing, and they knew what the statistics were. and so they gave them to me and said, here, in this period, was very unusual for people to file um ah written dissents and relatively small number of actual dissents.
01:03:03
Speaker
The number of dissents that occurred in cases like this um was was probably relatively small. um The number of of written dissents was even smaller.
01:03:15
Speaker
So, i didn't I didn't put any particular note in the fact that the dissent wasn't written. um It was also Justice Blackmun, who ah became famous years later for writing the Roe v. Wade decision.
01:03:30
Speaker
um We had a brief correspondence about this long time ago, and he said that when he was ah ah lad, he said, when I was young, I would go to him, and he was a young lawyer.
01:03:42
Speaker
He would go to banquets, and sometimes Butler was still around. And it was ah it was a running joke for him to be introduced at the kind of after-dinner speech. And they would say, ah as Justice Holmes said, three generations of imbeciles are enough, but Justice Butler dissents. And then everybody would laugh.
01:04:03
Speaker
So was ah it was a bit of a norm, not unusual, and there's nothing about it to read into you know his his his thinking. it you know wasn't like, I don't want to write something.
01:04:17
Speaker
i'm not scared. I'm i scared of writing something. It's just no there was a norm at the time. no i mean as historians have to just... Live with it? Yeah, live with it. We don't know what he was thinking. We don't we don't know.
01:04:30
Speaker
I think that you know the um there was apparently some debate among the justices about the language that Holmes used. Holmes says this in a letter. He said that, you know, they kind of got on my back because i they said my language was too harsh, but, know, come on.
01:04:46
Speaker
It's my style. It's my thing. You know, I'm um the guy who writes these great opinions. Come on. Yeah. I mean, he was 80-something years old then. he was He was not lacking in confidence.
01:04:57
Speaker
um He was on the cover of Time magazine. I mean, he was everybody's idea of a judge. so But some of his colleagues didn't particularly like the fact that he wrote expansive opinions, sweeping opinions, made phrases that people remembered, and either because they were resentful of him or jealous of him or just wish he'd shut up.
01:05:22
Speaker
you know they They didn't like what he had said. um And so he maybe did some small edits. Taft may have suggested to him that he changed the language, which is what happens in opinion writing all the time.
01:05:34
Speaker
In order to get the votes, you have to write it so the other people will agree with it. So that's the, you know, you the the rule of five is still the rule in the Supreme Court. if you don't get five votes, you lose. So he He knew that he had the five votes.
01:05:47
Speaker
um i Taft may have very well said, tone it down a little bit. Well, he didn't tone it down very much, as you can see. Yeah. It's a shame because, you know, as from a nerdy kind of a standpoint, reading The Descents is some of my favorite stuff. Like either there's more information or there's nuance or there's just drama, um you know, where it would have been really nice to kind of see.
01:06:13
Speaker
Well, in this case, it was eight to one, you know, if somebody, you know, had some big stance or was it like a minor quibble or yeah um what have you. No, there were grounds. I mean, there were there were grounds in others in other state cases that laws like this were overturned.
01:06:29
Speaker
the The thing that Strode benefited from in writing the law in Virginia was there had been, as I said, more than, well, the first the first law was written in Indiana, the first successful law in Indiana in 1907, and there there were another dozen, and and there there were challenges along the way, so they knew what the challenges would be.
01:06:53
Speaker
So they wrote the law, Strode wrote the law, with all of these and things in mind, you know, and this is this is the way you do it if you're a good lawyer, you say, okay, what are the likely objections? Let's take care of those in advance.
01:07:06
Speaker
Oh, they say this is this is something we're only doing to men. Well, we'll do it to men and women. um They say this is something that we're only doing to to people ah based on their race. Well, we'll do it to everybody.
01:07:19
Speaker
um They say this is a law that that applies unequally because this person didn't have a lawyer. We'll give them a lawyer. um They didn't get to testify. We'll let them testify.
01:07:30
Speaker
So all of the possible objections that were procedural were taken care of in the way the statute was written. And they followed those they followed those religiously.
01:07:41
Speaker
And if you read Dr. Pretty's correspondence, um which I have, he was insistent that they follow those to the letter precisely because he'd been dragged into court before because he didn't follow the rules.
01:07:56
Speaker
So, yeah, all of that was taken care of. and And the statute, at least the first time it was applied, was applied with meticulous precision.
01:08:08
Speaker
So so so we the Supreme Court has ah has its ruling. It's eight to one Holmes has this fiery, but short-ish for him opinion.
01:08:22
Speaker
and And now this Virginia law has the blessing of federal the highest court in the in the land, the federal courts.
Impact of the Case on Sterilization Laws
01:08:36
Speaker
Is there an explosion of you know eugenical law in the United States following this? Is it is it um some places or others?
01:08:47
Speaker
There were about 14 laws at the time the Virginia law was passed. By the time the last state passed a sterilization law like this, based on the theory of eugenics and hereditary defects going down generation to generation,
01:09:05
Speaker
It was 1937, and that state was Georgia. So that was the 32nd law that was passed. So there are, you do the math, 20 some odd laws passed between the time of the Buck case and this.
01:09:24
Speaker
Meanwhile, across the border in Canada, um British Columbia passes a law. um So sterilization's in Alberta. quite a few, and there are sterilizations, I believe, in Ontario.
01:09:40
Speaker
I'd have to go back and look that one up again. I've forgotten. But in any event, there are at least three places in Canada where there are also sterilizations, and they rely on the example of buck. They they don't have to rely on as matter of law, but it's it's an international example that's used.
01:09:56
Speaker
So to say did did it have any effect? Well, yeah, I think so. certainly did. um And and the most the most obvious and the most dramatic, of course, is that in 1934, when Hitler comes to power, 1933, among the very first laws that's passed in in Germany is a sterilization law, more expansive even than one in Virginia, but one which, according to the Germans,
01:10:27
Speaker
looked to laws like the one in Indiana, the one in California, and the one in Virginia as as their basis. They set up series of of courts, ah eugenics courts in Germany.
01:10:41
Speaker
um And when those courts are challenged at the Nuremberg Tribunals after the after the Second World War, when doctors are put on trial,
01:10:52
Speaker
um for the torture they were doing and in the camps, in some cases involving people who were not citizens and who were essentially given chemicals or x-rays or some other experimental way of sterilizing them, their response is to say in defense, oh, it's just the same thing they do in America.
01:11:16
Speaker
You're saying we can't sterilize people. That's what they do in America. We sterilized 400,000 Germans. and And we sterilized another, whatever you're saying, 50, 60,000 people in the camps.
01:11:27
Speaker
That's what they did in America. And they introduced the case of Buck versus Bell as part of their defense. So I'd say the case had some reach. Yeah.
01:11:38
Speaker
Not, maybe not what we want to be known for. i don't know. We aren't, we used to supposed what is it? City on a hill or whatever. Yeah. Just don't look in the, behind the curtain, I guess.
01:11:49
Speaker
And I had a, um To follow up, you know, so on the one hand, we're kind of talking about this from, you know, this was in the past and, and, you know, and this helped inspire the Nazis, but is it in the past?
01:12:06
Speaker
Have we, you know, stopped, stopped with the sterilization, with the involuntary sterilization? Well, you have to make some some distinctions about what kind of surgeries are going on or have stopped.
01:12:25
Speaker
um The laws that were passed between 1907 and 1937, which are generally described as the eugenic sterilization laws, which focus on this notion of hereditary um passing down of characteristics that are you know undesirable.
01:12:45
Speaker
Those laws have all been negated. um think there may be one that's left that's pre that period, but it's it's a punitive one. It's not not written the same way as the others are.
01:13:00
Speaker
In any event, the eugenics laws are all repealed now, even though the last sterilizations took place probably in the nineteen eighty s Oh, cool. Okay. So the last one Virginia was 1979, I believe.
01:13:15
Speaker
Other states so have said there may have been some others in the 80s. So the eighty by the eighty s that part had stopped. There are still something like 16 states that allow for sterilization of someone for medical reasons.
01:13:29
Speaker
um a person who cannot consent for themselves for medical reasons. We know that there are abuses under those statutes that people are sterilized because their family wants to um and doctor agrees to do it.
01:13:43
Speaker
um We don't have records because this is not done something done publicly. We occasionally have some judge who's decided that they're going to play doctor and and declare that somebody needs to be sterilized before they get out of jail or that they need to be sterilized and and have their children taken from them or any number of other things. And we see cases like that that pop up periodically. They never quite have gone away.
01:14:09
Speaker
And then we've got other examples of of kind of reproductive interventions that happened to people in prisons. Some 200 women in California prisons sterilized ah oh as much as a decade ago.
01:14:23
Speaker
um We know that there the same kind of thing was going on in immigration camps by ICE personnel or by people who were doctors who were working in ICE facilities.
01:14:34
Speaker
So, yeah, there's still there's still plenty of sterilization going on, usually um surreptitiously or certainly not in the public eye. all of the With the exception of the ones that are ordered by judges and are immediately challenged, we don't know about most of the other ones unless somebody's doing some serious digging.
01:14:55
Speaker
think the Equal Justice Initiative does some tracking, but I don't know. i mean, theyre they track a lot of different yeah injustices, so I don't know if they have like a task force on that or anything.
01:15:06
Speaker
yeah So we've talked a lot about you know the case, the some of the individuals who are involved. We have Whitehead, Strode, Pretty goes up to the Supreme Court. We've got Taft, Butler, Holmes. These are all the the people of legend.
01:15:22
Speaker
the in the historical record, but one person if I feel like we've ah we've left out here is Carrie, the human being, the victim, ah i think it's fair to say the victim of of the case, of the movement.
01:15:39
Speaker
And so we think about some of these cases in, you know, 1920 seems like a really long time ago, but my understanding is you met, Carrie Buck, at least briefly. like This is not ancient history. So I was wondering if you could spend a moment and ah bring us up to date on Carrie post-trial. Who was the the human at the center of this case? Okay. um I think your your timeline is really important. Chronology is worth um looking at.
01:16:13
Speaker
um no it's it's It's May of
01:16:20
Speaker
November of 2024 was the centennial of the trial that we just talked about. So that means there are people alive today, not a whole lot of them, but some, actually know one of them, who were alive then.
01:16:40
Speaker
So this is not an ancient history. Anything that's happened within the life of somebody who's still with us is not ancient history. ah yeah You know, if you're 25, you may think anything that didn't happen more than two weeks ago it was ancient history, but still.
01:16:52
Speaker
um Some of us who are or are old remember the period that all this stuff came from. so So that's the first point.
01:17:04
Speaker
The centennial of the Buck case in the Supreme Court is only going to be two years from now. So 1927. 1927.
01:17:13
Speaker
And there will be a lot of people around then who were around in the late 1920s. So again, not not exactly ancient history. As for Carrie Buck, um I had the good fortune of finding her um in 1983, just after Christmas.
01:17:38
Speaker
And it was about a week after Christmas, as I recall. And I drove out, I was living in Charlottesville at the time at the University of Virginia. And I drove out to Waynesboro where there's a little facility.
01:17:50
Speaker
It was called the District Home. was basically a a nursing home. And i had heard that that's where she was living. had heard that she had been taken to hospital several times because she'd been living in a little small cinder block building uh, which I believe had running water, but I'm not sure that it had indoor plumbing.
01:18:18
Speaker
Um, and she was living there at the, you know, as ah charity really of the person who owned the property, she and her husband. Um, at that point she'd been married to this man for about 25 years, I think.
01:18:34
Speaker
Uh, in any event, she was at the district home. I went to see her and um, I really only had one goal, and that was to verify her perception of what had happened to her and my perception that she had been victimized, not because of some dreamt-up problem that she had with her brain, the way she thought,
01:19:02
Speaker
um and and And not because she was an evil person, but because she was being condemned for having a child and not being married.
01:19:14
Speaker
And so I asked her question that others had asked her before, which was, um they did they did they take you there because of your baby Vivian?
01:19:27
Speaker
And she said, yes. um She said my, she called him her boyfriend, my boyfriend. He forced himself on me. um So she essentially confirmed to me um that she had been assaulted.
01:19:45
Speaker
Maybe today we would say date rape. I don't know. um It was her perception that she had been forced and then she had been abandoned.
01:19:58
Speaker
And as I write in the book, both of those things were crimes in Virginia at the time. Some other thing that Whitehead might have looked at if he were actually representing Kerry Buck, um but he didn't.
01:20:11
Speaker
So the case turns not just on intentionally bad lawyering and on a malevolent dictator of a facility head, but also on the falsehood that Carrie was somehow promiscuous and and running the streets and getting pregnant without thought.
01:20:34
Speaker
But what really happened was that she she had been assaulted. So Dr. Pretty gets his way and Carrie gets sterilized.
01:20:46
Speaker
i We don't know very much about Carrie. um She had a hard life. She worked on farms. She worked taking care of other people's children.
01:20:59
Speaker
It's one of the great ironies because the argument was that people like Carrie Buck shouldn't have children because you can't take care of them. And yet she spent a great deal of her life raising other people's children.
01:21:11
Speaker
So clearly that was a lie, as was the claims that she was somehow promiscuous.
01:21:19
Speaker
She never had much, um but she seemed to keep a very strong sense of family. I think one of the saddest things about the story to me is reading Carrie's letters that she wrote. I published a series of these a couple years ago um that she wrote to the nurse and to Dr. Bell.
01:21:43
Speaker
Dr. Bell took over the case after Dr. Pretty died right after the trial. And so it became Buck versus Bell rather than Buck versus Pretty. Dr. Bell would write back and forth to patients who are out on parole, they called it.
01:21:58
Speaker
they were They were essentially placed with families for whom they worked for a pittance, $5 a month or something. And until they were able to prove that they were on the straight and narrow, they were they could be brought back to the colony.
01:22:14
Speaker
So she works for a time out in Southern Virginia. And then um she says she wants to get married. And the doctor says, well, that's good. That'll be a stabilizing thing for you.
01:22:27
Speaker
And you can you can get married and then we'll release you. And so she does. We have a photograph of her and her husband at that point. But we don't really know too much about her other than that, other than she occasionally would write letters to her sister, Doris, occasionally write letters to the to the nurses and the doctors at the colony,
01:22:49
Speaker
And one of the last letters we have is an attempt to come and visit her mother. She has found her half-brother, man named Smith, and Roy Smith, and they are going to come and visit And she's obviously made a real effort as he lived in Charlottesville.
01:23:12
Speaker
Doris lived around Charlottesville. um and And Carrie turns out to be the glue in the in this family of trying to bring them all together again. And so they're going to go back to Lynchburg where her mother still is at the colony.
01:23:27
Speaker
And she writes a letter saying, you know, mom, you know, we'll be there. We'll bring you something. She shows up. And unfortunately, her mother died a couple days before and they didn't get in touch with her.
01:23:40
Speaker
And so she's met with the news that her mother's dead. To me, that's one of the really painful parts of the story. Here's somebody trying to do all the right things. And and she didn't get the memo.
01:23:53
Speaker
So that's what we know about care. We don't know very much. um It would, I suppose, for better or worse, today, you know, every person who talked to her or would have a camera and a recorder in their pocket.
01:24:11
Speaker
I'm not sure that would be better. She at least got to have her dignity and and privacy to a point and not be hounded. I'm not sure that would have been benefited her or any.
01:24:25
Speaker
um So while I would have loved to have 60-minute video of my time with Carrie Buck, I don't have that. And maybe it's better that I don't.
01:24:36
Speaker
I have a couple more questions, but I do just want to stop here and say thank you for... thank you for providing context on carrie it's a painful awful story but she was a person who lived you know and i and nikki and well you know better than us as a legal scholar but nikki and i as lay people going through court cases you definitely feel a dehumanizing effect of how these arguments are made
01:25:09
Speaker
and there's a human being on the other end of that. And, you know, I just want to stop and say, i appreciate your work as a historian, uh, and a legal scholar and, and, and coming in and providing some of that context, uh, difficult as it is to hear.
01:25:27
Speaker
I, ah you raised a question earlier, Nikki, about, um, the issue of identity. And I think that, um, it's ah It's very important. People often ask, one of the first questions people ask me was, who was Carrie Buck black?
01:25:46
Speaker
um And the answer is no, she was not. She grew up in a neighborhood, and this shows how poor the family was. She grew up in a mixed-race neighborhood. So in Virginia, to live in a mixed-race neighborhood was ah was a marker of class for sure. um the The opinion says, you know,
01:26:08
Speaker
She's a white woman from Virginia. So that part's clear. People um always ask what the breakdown was in terms of male and female, um white, you know people of color, et cetera.
01:26:23
Speaker
And it's a hard question to answer because we're talking about a timeframe that is so big. We're talking about sterilizations that start really start around 1900. They officially start in the Lost Pass in Indiana in 1909.
01:26:37
Speaker
ah excuse me, 1907. And and nineteenos from 1907 to 1937, we've got all these other laws are passed. And then we've got sterilizations that go all the way to 1980. So almost 80 years of people being sterilized in 32 different places.
01:26:52
Speaker
So just if you want to say who was sterilized, you have to say when and where. If you were in Virginia with Dr. Pretty, the odds were really high that you'd be a woman.
01:27:07
Speaker
The odds were even higher that you'd be white. Why? Because it was a segregated institution. That's why. Go to 1939 or go to go to the the institution for African-Americans outside of Richmond or or Petersburg, which was a colony there of for the so-called feeble-minded.
01:27:30
Speaker
Those people were all black. But that colony doesn't open until late 1930s. And so you have to, again, it depends on where you are and what the time frame is. When you look at ah gender more generally over the whole time frame, it looks like there's something on the order of a few more, I don't know, 55% maybe women versus 45% men. and some cases, it's as high as in some states.
01:27:56
Speaker
and fewer men. In some periods, it becomes almost all women. And so when you get up into the 1950s and 60s, states like Georgia, South Carolina, um North Carolina to a certain extent, and Virginia still, is sterilizing black women who are on welfare.
01:28:18
Speaker
So the pattern that I said earlier, continues, right? It's about sex. have to have sex to have the babies, right? It's about money.
01:28:29
Speaker
It's about not wanting to pay for other people's babies. So it's women on welfare. it turns out to be women who are black. And the same claims are made about them that were made about people like Carrie Buck, that they are and unnecessarily sex-crazed, that they are constitutionally immoral.
01:28:50
Speaker
That sort of language comes up in proposals all the way up to 1970. know i could I could show you ah people making these arguments, doctors sending letters to the legislators saying we need to sterilize people.
01:29:05
Speaker
ah We still need a new law to sterilize people on welfare. We need to sterilize. We need to criminalize this behavior and lock people up when they have children and they're not married. So that kind of story plays out over and over again.
01:29:20
Speaker
I feel like you know there's always... Yeah. and ah In a lot of respects, I feel like it's a lot of times it's kind of the same kind of stories or like, you know, the line or the vibe, um but you just kind of pick whatever marginalized community um you want to sort of aim the barrel at.
01:29:41
Speaker
I think you're right. I think that the the habit that we describe as the eugenics movement is easy to encapsulate.
01:29:53
Speaker
And it's easy for people like me because we look for very specific dates. You know, the law was passed on this day, it was repealed on that day, it was overturned on that day. So you can kind of, you know, tell a story that has a boundary on it.
01:30:04
Speaker
But the bigger story has no boundary.
Eugenics Movement and Social Implications
01:30:07
Speaker
And the bigger story has to do with what do we do in this country to the people that we, as a group, dislike the most?
01:30:20
Speaker
Well, first of all, we have to identify who those people are. And whether you're in 1775 or you're in 2025, the story is relatively similar. we we When we are anxious and we are angry and we are concerned about our own welfare, we blame people who are poor.
01:30:42
Speaker
claim We blame people who are different. The difference might be color. It might be nationality. It might be religion. ah It certainly is race.
01:30:55
Speaker
So we identify people who are different. Some of those people, their behavior is different because they have disabilities. Some of those people have, for a variety of reasons, got caught up in the legal system.
01:31:09
Speaker
So maybe they've got criminal charges or criminal convictions. So if we take the list of people that the eugenicists wanted to sterilize, so the same list of people that we blame everything on every time there's a crisis, and you can go back to 1920s and see it, you can go back last year and see it, you can go back into the 19th or the 18th century and see the same thing.
01:31:33
Speaker
It's our anxiety about who's running things, who is getting to be too big, who is getting to be too powerful. We got to go get rid of those immigrants, get rid of those people who don't look like us, whoever us are. And the us, are usually speaking, are usually white Americans.
01:31:53
Speaker
And as often as not white American males. So I think that what I call the ah demographic anxiety is what explains a lot of what people want to say is piece of the eugenics movement.
01:32:09
Speaker
It is certainly what the eugenics movement was about. ah Sometimes it's focused dramatically on race. At other times, it didn't. Sometimes it focused dramatically on gender.
01:32:23
Speaker
At other times, it didn't. Sometimes it focused on immigrants or people speaking other languages, et cetera. So it sometimes it focused on criminals and and incarceration a lot.
01:32:35
Speaker
At the beginning, it did. So, you know all that stuff is a constant, and it's a constant throughout American history. What eugenics does is give us a word and a kind of theory that we can use to make it make sense so that it is validated.
01:32:51
Speaker
And then after a century, we go back and say, wow, was that terrible? And other people say, no, it wasn't terrible at all. So I think if you listen closely, you realize that many people think that was a good thing.
01:33:06
Speaker
In my experience, speaking about this stuff for going on 40 odd years, there's always somebody in the comments who said, you know, those pointy headed college professors, ah they shouldn't, they don't think we should do anything.
01:33:20
Speaker
He's completely wrong. We should still be sterilizing people.
01:33:26
Speaker
That's unsettling.
01:33:29
Speaker
At the same time, it's not surprising. mean, there are so many things that have been said. ah You know, when you were describing, oh, back then, this, that, or the other was an issue.
01:33:40
Speaker
And I'm like, was, still is. And, you know, in some respects, you know, especially when you're talking about demographic anxiety, i mean, maybe eugenics was the dress we put on it then, but that stuff is still here now.
01:33:56
Speaker
live Alive and kicking. Yeah. We're the recording right now. We are four days past the five-year anniversary of George Floyd. ah You know, the Eric Garner, like, you know, the government has had a history of ah putting its hands on bodies.
01:34:18
Speaker
Yeah. Some bodies, specific bodies at specific times, to your point. ah Maybe some more than others and more obviously than others. Yeah. um i i so I wonder, i remember, ah I want to say about 10 years ago, reading an article about North Carolina doing reparations of sorts for women who had been sterilized.
01:34:43
Speaker
in the I want to say like the 60s or the 70s. And that was the first time, and I have a degree in history, so this is a sad thing to say out loud, ah but that was the first time that I had become aware that we sterilized in the United States.
01:35:00
Speaker
And again, someone who's studied history, ah his I consider myself a voracious reader of history, And to have such a what feels now like such a very large blind spot, I think maybe the average i wonder if the average American knows that that happened.
01:35:23
Speaker
In the same way that I wonder if the average American knows that ah you know Japanese internment was an absolutely terrible, horrible thing, ah but it wasn't just the Japanese who got interned.
01:35:35
Speaker
But it's not the story that's told.
Historical Awareness and Its Importance
01:35:37
Speaker
Because the Japanese government was so much larger and and they also went through and they got reparations. yeah But like Crystal City in Texas was a ah was for Italians, absolutely, and I believe for for Italians, but citizens and immigrants.
01:35:55
Speaker
Yeah. I knew a number of, i had a number of friends in California who had been moved from ah coastal towns like Monterey into the central Valley of California because they were Italian.
01:36:08
Speaker
Yeah. And I, and the only reason I know that is a family member was like, Hey, here's a book on a thing that, that you might not know. And they were right. I didn't know it.
01:36:18
Speaker
Yeah. And um so, yeah. And I wonder if the, lack of visibility is empowering for the people who use it as a cudgel.
01:36:33
Speaker
Yeah, I don't know. I think that, you know, i've I've said more than a few times that that when people get angry because you talk about these unpleasant things um and they say you shouldn't, you know, you shouldn't be raising these issues, that history is not some greeting card that you get from the past.
01:36:50
Speaker
It's the only wonderful stuff. um if it's anything at all, it's a relatively straightforward, eyes wide open look at, you know, the way people behave, the good, the bad, and the ugly.
01:37:05
Speaker
And this particular chapter happens to be mostly ugly.
01:37:10
Speaker
it's It's so interesting that people take the stance of you know digging up old things and and maybe taking a position that it's harmful in some way, just given that ah when we think about, for instance, trauma, and this is occur you know occurring at the individual level and also at the community, family, group level,
01:37:32
Speaker
one of the ways, one of one of the methods of healing is actually that storytelling. And ah first of all, providing your account, but then also making it visible, ah perhaps as a way to get accountability, but also as a way to just not have it locked up, you know, inside anymore.
01:37:54
Speaker
um And it's been sort of identified as, as once again, as a form of, of healing. And so I just think it's so curious to take a stance of, you know, no, we can't, you know, learn about or discuss or, you know, or, you know, that sort of thing.
Conclusion and Reflections
01:38:14
Speaker
Dr. Lombardo, thank you so much ah for your time and your energy working with us, ah not only for this interview, but for meeting with us previously to to help us understand even what what this was about so that we could research it, ah providing us material and scholarship ah and being okay with the ridiculous volume of emails that I've sent. No, I think i think it's your...
01:38:44
Speaker
Your timing is good because it is, i i did, I think I probably said, i I told you I was doing, this year was a centennial of the buck trial and the centennial of scopes trial, which we just got through with.
01:38:57
Speaker
um There'll be more of the summer. You'll see things about scopes trial coming out, but in another two years will be the centennial of the Supreme court decision.
01:39:09
Speaker
And, and I i think that, You know, people, centennials are or a good excuse for talking about these things. And so a run up to that is a good idea.
01:39:20
Speaker
Well, thank you so much. And of course, Nikki, thank you to you for being here and and your excellent questions and all the research that you helped me do. The reality is that Nikki does actually the the brunt of the the upfront research. So I could not do it without you. So thank you so much.
01:39:38
Speaker
And yeah, that's it. Yeah. Yeah. Thank you. Thank you once again for your time and your, and your expertise. This has been, you know, this is really sort of helps shine a light and give some background to, you know, just, you know, a few paragraphs on a page, which was really all we had at the beginning.
01:39:59
Speaker
Well, thank you. I'll, I'll look forward to hearing it. Thank you much. Thank you.
01:40:06
Speaker
Well, that's it for this episode. There's so much more to talk about than we had time for. So if you want to learn more, we do suggest checking out Dr. Lombardo's book, Three Generations, No Imbeciles, Eugenics, The Supreme Court, and Buck v. Bell.
01:40:19
Speaker
The updated edition is available on Amazon and from the Johns Hopkins University Press. It's time to wrap up, but before we go, thanks again to Dr. Lombardo for lending us his time and energy to help contextualize this very difficult case.
01:40:33
Speaker
This was our first ever interview on the podcast, and he was incredibly supportive of our efforts. As always, thanks as well to my co-host, Nikki. The music in this episode was written by Studio Columna and Toby Smith and provided by Pixabay.
01:40:47
Speaker
Research was done by Nikki. Audio mixing and producing was done by me. Thanks for listening. Please subscribe, rate, and comment so other people can find us. You can also catch us on YouTube, Instagram, and Blue Sky. Our handle is at Relitigated Podcast.
01:41:03
Speaker
Please help us spread the word. All right. Until next time, I'm Jarrett, and this has been Relitigated. Take care.