In the 8-1 decision Buck v. Bell (1927), Justice Brandeis voted with the majority, whose opinion (by Justice Oliver Wendell Holmes, Jr.) contains:

[ Source: ] 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. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.

So I am trying to distinguish whether Justice Brandeis

  1. was only upholding the law (as he judged it) but deplored the policy (of eugenics),

or whether 2. he really did agree with the policy of eugenics.

  • 2
    He could have, with minimal effort, written his own opinion paper discussing his verdict either without mentioning eugenics at all or stating how much he deplored the mention of it in the majority opinion. Since he did not make the effort, it is far more likely that he had no major difference with the views Holmes expressed. – Oldcat Apr 7 '16 at 20:12

It seems that Brandeis was sort of neutral on the issue. I found no evidence of his actively supporting eugenics (like: talking at eugenics congresses, authoring articles, or just using eugenics-loaded language of the sort of "Three generations of imbeciles are enough"). On the other hand, there is no apparent indication of him having any qualms about eugenics either.

Here is what his latest biographer, Jeffrey Rosen, has to say on the issue:

This is a reminder of a really dark part of our history which is that progressives - and even the progressive religious denominations - tended to be enthusiastic eugenicists. Holmes, Theodore Roosevelt - these are all - and Margaret Sanger - these are people who support the so-called perfection of the race. It's a small comfort that Brandeis, by all accounts, was not himself a eugenicist. There's no evidence of him supporting this as a policy matter.

He was a great believer in judicial deference to the states and state's rights as we've discussed. And this was a 8-to-1 decision. He seemed to silently be joining, what was at the time, legally uncontroversial. It's striking that the only dissenter in the Buck and Bell case, Pierce Butler, was a devout Catholic. And it was only more conservative Catholics, Jews and Protestants who opposed eugenics at the time.

Unfortunately, progressives were for it. So it's a shame that Brandeis joined this opinion, but at least unlike Holmes, there's no evidence that he himself supported the dreadful result in the case. Source

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