In 1927 the U.S. Supreme Court decided Buck v. Bell, a case which ranks among the most infamous in the Court’s history. In Buck the Court ruled that “feebleminded” persons could be forcibly sterilized against their will for the benefit of society. Writing for a nearly unanimous Court, Justice Holmes wrote that “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind . . . Three generations of imbeciles are enough.”
Descriptive social scientists are (allegedly) in the business of saying why certain social phenomena occur as they do. Why did the American Revolution succeed? Why does birthrate tend to fall in industrialized countries? Why do economic recessions happen? Why did the Court decide Buck as it did? The answers to these questions can take various forms, and in this post I’ll briefly defend the idea that articulating (what I will call) the “norms of reasonableness” of a society or institution can be particularly useful in answering the question of why judges decide cases as they do.
Judicial activity, as it is traditionally understood, is a reason-giving practice. Judges have to justify their actions with reasons which their audience finds satisfactory. However, what counts as a “satisfactory” reason can differ significantly between times, places, and institutions. Judges in a particular social context are constrained (and enabled) by the fact that other judges, the legal community, politicians, elites, and the public find a certain set of reasons persuasive and salient. Call the norms which people follow (as a matter of fact) in reasoning “norms of reasonableness,” a label I cannot defend in any great detail here. Looking for such norms does not commit us to relativism; it is perfectly clear that what people do find persuasive is not necessarily (and much of the time, is not) what they should find persuasive. As social facts, “norms of reasonableness” can be just about anything. History supplies many examples of social groups which accepted reasons which we have very good reasons to reject – for example, antebellum views about slavery and black inferiority in the U.S. This list of bad reasons which people have accepted is very long, and examples are not hard to find. However, articulating the shared ground of reasoning – the norms of reasonableness which people accept as reasonable, even if they are not reasonable in fact – is an essential methodological approach for describing and explaining the activity of judges.
This is because, as I said above, judges are in the business of giving reasons. More than members of any other government branch, judges have to give reasons for what they do. Because reasoning-giving is so essential to the office of a judge, judicial decisions are shaped (framed, influenced, constrained, empowered) by what passes as a good reason according to judicial practice. It is my contention that looking closely at the reasons judges give, and how others respond to or criticize these reasons, grants us insight into the shared norms of reasonableness of both the legal profession and the society more broadly. Knowing these norms can aid us in understanding why judges decide as they do.
Which brings us back to Buck. Buck sounds appalling to contemporary ears and has been justly criticized for the past several decades. Perhaps for these reasons it comes as a surprise to know just how “reasonable” the decision was in its own time. The New York Times celebrated the “Right to Protect Society” in its coverage of the case; other newspapers were generally supportive or did not criticize the decision. Virtually all of the law review articles which treated the case were neutral toward or in favor of the decision; a writer for the Lincoln Law Review dryly stated that the Court “approve[d] the procedure about which there was no very stout contention.” An article published in the Columbia Law Review argued that “the classification set up by the statue [under consideration] is not unreasonable, [and] evinces a liberal attitude.” The Court decided the case 8-1, and the Pierce Butler, the lone dissenter, kept his reasons to himself. Though not everyone thought eugenics was a great idea, much of the legal community and press thought that the decision was reasonable, or at least not grossly unreasonable.
Making sense of this support requires that we understand scientific views about “feebleminded” persons during these times, e.g., that they were inclined to sexual promiscuity, laziness, crime, alcoholism, and various other social ills. It is also important to recognize that feeblemindedness was considered by many to be inheritable according to the laws of genetics (and therefore, the way to stop it from “spreading” was to stop certain people from reproducing). These ideas, combined with views about progressivism and the relative strength of the “police power” to legislate for the common good, made a case like Buck not only possible but, to many people, appropriate – it conformed to the standards of law, science, and reason which many people thought relevant to the question.
Caution is necessary in the search for norms of reasonableness, to be sure. We must not generalize too broadly, and must always remember that there are many different ways of thinking in any particular social context. Particular judges might be significant outliers compared to the rest of the population. However, reasons given by judges do constitute a certain kind of evidence – they are evidence of what a certain judge, occupying a legitimate position of public authority and trust, thought his audience would accept as good reasoning (further, unless the decision is repealed, these reasons become the reasons of the state). If we combine the reasoning of a particular judge with reasons given by other judges in similar cases, comments from other legal professionals, discussion of the reasons given in the popular press and by politicians (if available), and so forth, we can gain a fairly accurate picture of what “people around here” accepted as good reasons for the question at hand. And knowing this can help us better understand why judges decide as they do.