Buck v. Bell

[Myers, Richard]

One reason for the criticism of Justice Holmes's performance in Buck is that
the brief opinion does not really seem to be a normal exercise of judicial
restraint, where the Justice goes out of her way to note that she is not
expressing her view on the merits of the law or goes out of her way to say
that she does not approve of the law. Compare the dissents in Griswold--"I
think this is an uncommonly silly law...." Compare also Holmes's Lochner
dissent, where he goes out of his way to say that it is not his job to
comment on the merits of the law.  Holmes's opinion does not say that the
state of Virginia might have thought..."x"; I think it is fair to read his
opinion as positively endorsing the wisdom of the statute. This point has
been made by others. See Robert Cynkar's article at 81 Colum. L. Rev. 1418
(1981) and the sources cited therein. These make it clear that Holmes had
intense support for the eugenics movement, and his brief opinion reflects
that view. I think it fair to criticize him on those grounds.

Richard Myers
Professor of Law
Ave Maria School of Law
3475 Plymouth Road
Ann Arbor, MI 48105-2550
(734) 827-8094
rmyers at avemarialaw.edu
Fax (734) 622-0123