Louis Brandeis
posted by Gerard Magliocca
I
just finished Mel Urofsky’s new biography of Justice Brandeis and it’s terrific. I must admit (sheepishly) that I had never focused on Brandeis and his career before. The sweep of his achievements is truly astounding. I was especially fascinated by the discussion of his career in practice, as the judicial part is more accessible through his opinions.
My only quibble (a minor one in a book hundreds of pages long) is that no explanation is given for why Brandeis joined Holmes’ opinion in Buck v. Bell. Perhaps that is because no information exists on this point, but I would be curious to know whether Brandeis had any enthusiasm for eugenics or just went along because sterilization of the mentally retarded was an “experiment” in the states that deserved judicial deference.
BTW, I’m having Lasik tomorrow. Thus, I’ll be offline (hopefully not for long) until I heal up.
October 15, 2009 at 6:57 am
Posted in: Articles and Books
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Responses (3)
Daniel S. Goldberg - October 16, 2009 at 3:53 am
Gerard,
In reference to your question, of course Paul Lombardo would be in the best position to answer, but he does mention (briefly) that Brandeis concurred in the decision, and may give some mention of his attitude on eugenics (I do not recall at this point).
My own position, informed by the history of eugenics in the U.S., is that given Brandeis’s class and position, it is not entirely surprising that he would at least tacitly accept if not endorse eugenics ideas. I am aware of no evidence suggesting that he was an outright proponent of eugenics discourse, but even as the power and scope of eugenics in American society was beginning to wane by 1927, I would generally be more surprised if a person of his class, status, and privilege would outright reject eugenics that I would be to learn that such a person at least allowed for some semblance of eugenics, even if not taken as far as Harry Laughlin would wish.
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Kelly - May 8, 2011 at 9:20 pm
I wrote to Mr. Urofsky and asked him, and he kindly replied; one must take the decision in the context of the times. Eugenics at that time was not considered the junk pseudoscience that it is today. And it was not known that Carrie buck was raped, nor that her child was of normal intelligence. The progressive cause had a major blind spot when it came to race relations (although Brandeis always voted in favor of civil rights), so it’s not inconceivable that the progressive such as Brandeis would miss this. It would have been nice if he had dissented, but he ruled as someone of his class, education, position and, most importantly, a man of his times, would have. Although I am completely sure he would have been horrified to hear of Nazi defendants at Nuremburg using it in their defense…
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