This is another example of an increasingly common phenomenon – the book or article that tells “the true story”or “the whole story” behind a famous court decision. This, though, unlike some, is a good example of that trend.
Victoria Nourse examines Skinner v. Oklahoma, the 1942 case in which the United States Supreme Court ruled against a mandatory sterilization law for repeat criminals without overturning Buck v. Bell, the 1928 case in which 8 justices joined Oliver Wendell Holmes Jr.’s opinion upholding Virginia’s mandatory sterilization law.
Nourse’s discussion of the constitutional issues is useful and interesting. Skinner was decided on an equal protection rationale, the kind of argument that Holmes has derided in Buck as “the usual last resort of constitutional arguments . . . .” Nourse argues that Skinner was actually a crucial step in our modern view of Equal Protection and, in so arguing, recreates the lost world of how early 20th century lawyers thought about equality. She also provides some interesting background about the writing process of the opinions in this case.
But for me the most fascinating part of the book was not its discussion of doings in the then-new marble palace on East Capitol Avenue, but its revelations about Oklahoma, and especially the prison at McAlester. I had no idea that the prisoners were so involved in the fight against the law. They funded much of the litigation; they rioted and escaped, sometimes with deadly consequences, at times when the sterilization legislation was particularly threatening. Nourse takes us inside the prison walls, and inside the lives of some of the prisoners, lawyers, legislators, and others who were involved in the law and in the litigation. In doing so, she recreates not just the lost world of early 20th century constitutional law, but the lost world of Depression and early World War II era Oklahoma, as well as (at least in part) the lives of prisoners in that era.
Nourse spent a lot of time in Oklahoma in researching this book and it shows. Anyone interested in the history of eugenics legislation in the United States, and its judicial challenges, should read this short (178 fairly small pages) but fascinating book. (W.W. Norton and Co., 2008).