Skinner v. Oklahoma is the landmark Supreme Court case, which in overturning a compulsory sterilization law on equal protection grounds, introduced the concept of “strict scrutiny” for fundamental rights into constitutional law. It is commonly regarded as the progenitor of constitutional protection for such controversial unwritten rights as abortion and intimate same-sex relations. Setting Skinner in the context of the worldwide rise and fall of the eugenics movement, and drawing from material in scattered archives, Victoria Nourse has pieced together a detailed history of the litigation that transforms our understanding of the case and its place in the development of modern constitutional law. As part of her narrative, Nourse develops important insights into the evolving relationship between individual rights and legislative power that are essential to understanding the vast difference between early and late twentieth-century constitutional law.
Nourse's research shows that Skinner was brought not because of the individual concerns of Jack Skinner, the sole petitioner mentioned in all court papers, nor because of any interest by a national constitutional rights organization. Skinner was litigated from start to finish because the prisoners at Oklahoma's McAlester Prison so dreaded being sterilized that they rioted several times, staged deadly prison breaks, and organized a prisoner “brain trust” (52) to aid in litigation, select defendants, and raise funds to retain a couple of sympathetic local attorneys. Nourse's research brings Jack Skinner; the prisoners and staff at McAlester; the intrepid lawyers; and a slew of Oklahoma doctors, legislators, and governors to life, helping us feel this case rather than just intellectualize it.
Nourse provides a complete case history that thoroughly discusses the Skinner litigation and seamlessly sets it in the constantly changing social, penological, legislative, political, scientific, economic, and legal context that affected it. The eugenics movement and Skinner's national and international context have been canvassed before. Nourse returns to the subject in response to “the hype surrounding the mapping of the human genome” (162) and “widely publicized studies of genes ‘for’ everything” (163) to issue a timely warning against our “new form of eugenics” (164) and a reminder of “how great an incentive politics has to manipulate science and how easily science may capitulate to the very politics it aims to conquer” (173).
For the historian, what Nourse contributes is an extensive account of the state and local scene surrounding Oklahoma's eugenic legislation, the resistance and litigation it provoked, and a new understanding of the Supreme Court's response to Skinner's appeal. Drawing from the Justices’ papers, Nourse shows that although Justice Douglas authored the Court's opinion, it was Felix Frankfurter, that advocate of judicial restraint and deference to legislative enactments, who led the Court to overturn Oklahoma's sterilization law on equal protection grounds. Moreover, Nourse shows that seven of the eight remaining Justices quickly agreed to Frankfurter's suggested approach.
Uncovering Frankfurter's role and the fact that seven Justices immediately signed on to his equal protection rationale helps ground Nourse's revisionist thesis about Skinner's place in the development of modern constitutional law. Nourse persuasively argues that Skinner should not be understood as the case in which Justice Douglas innovatively asserted the right to procreate as a new unwritten constitutional right. In her view, “Skinner was never argued or decided as a case primarily about rights” (16). Rather, Skinner was an understandable application of constitutional law's century-old animus against “class legislation” (167).
Nourse premises her analyses on two insights about Lochner era constitutionalism. According to one insight, Justice Holmes was simply wrong in Buck v. Bell (1927), when he called equal protection “‘the usual last resort’ of constitutional arguments” (30). Despite Justice Holmes's aspersion, equal protection concerns were significant mainstays of Lochner era constitutional litigation. According to the other insight, a claim of constitutional right meant something very different in the Lochner era than it does today. Although “[t]oday, constitutionalists view rights as trumps (winners despite claims of public purpose)” (152), in the Lochner era “the general doctrinal rule was that legal rights could be defeated by claims of the general welfare” (152). This insight accounts for the fact that in the Lochner era the vast majority of regulatory statutes challenged on constitutional grounds were upheld rather than overturned.
Drawing from these insights, Nourse maintains that “Skinner's innovation was not the invocation of a right but the idea that rights married to inequality could trigger ‘strict scrutiny’” (152), which was a judicial “second look” (168) to see if the challenged law evidenced “legislative hypocrisy and self-dealing, where majorities exploit public prejudices against minorities by distributing burdens only to those deemed ‘other’ or ‘different’” (153).
Nourse wants us to see Skinner not as the product of Justice Douglas's “activist …irresponsible and highly liberal … bad habit of creating rights out of thin air,” (165) but as an outgrowth of traditional constitutional concerns. Reading Skinner in context, and with her newly discovered evidence, Nourse depicts Skinner as a significant equal protection case about “class” and “race” (158), an important advance in our nation's rejection of the “idea of naturalized social inferiority injected into the body and blood” (170). Nourse places Skinner at the root of modern constitutional law's “affirmative action, sex equality, and racial discrimination” cases (159) rather than its substantive due process sexual-privacy decisions.
Nourse certainly is correct to emphasize Skinner's connection with the law of equal protection. However, I would not uncouple the case entirely from modern substantive rights. Nourse's analysis suggests not only that Skinner emerged from traditional equal protection concerns, but also provides support for a parallel narrative concerning the emergence of modern constitutional rights. Although downplayed by the “Lochner era as anti-class-legislation” thesis, an abiding respect for individual rights surely influenced the elaboration of that era's constitutional law, even in decisions primarily articulated as bans on class favoritism. In addition, when Skinner was decided in 1942, there already were a number of seminal speech, religion, and criminal procedure cases giving heightened protection to those modern constitutional rights. In each of these cases, the protected right was being asserted by a traditionally subordinated group such as socialists, labor organizers, Jehovah's Witnesses, and African-Americans. Some scholars have suggested that the synergy Nourse sees in Skinner between a concern for individual rights and a concern for equality was also present in the seminal rights cases. In tandem with this line of scholarship, Nourse's analysis of Skinner helps us see connections, rather than contrasts, between the development of equal protection and the development of substantive rights.
As Nourse observes, in the 1930s and 1940s “rights claims had a different relationship to equality claims. They were not competitors, but allies” (151–52). I suggest that both the equality and rights branches of modern constitutional law arose from this alliance. The breakdown of this alliance may be a key to understanding the transition from New Deal and Warren Court constitutionalism to the constitutionalism of the Rehnquist and Roberts Courts. It is in these later Courts that rights claims and equality concerns have increasingly come to stand in opposition rather than partnership. It is perhaps too much to expect that “[i]f Skinner's equality rationale can be resurrected from its current state of disrepair, it may support the claims of those like Ginsburg and O'Connor who find in equality a more moderate resolution of otherwise resiliently polarized battles” (165). But Victoria Nourse invites us to try.
