Luke Ford

UCLA law professor Stuart Banner writes in this 2024 book:

* The Court likewise upheld a considerable amount of regulation that was alleged to infringe liberty in a more personal sense. Just two months before Lochner, for example, the Court sounded positively collectivist in rejecting the claim of anti-vaccine activists that the Constitution barred the states from enacting compulsory vaccination laws. “There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with safety to its members,” the Court declared in Jacobson v. Massachusetts (1905).

* the Court held in Buck v. Bell (1927) that the Due Process Clause did not prevent the state from forcibly sterilizing people determined to be “feeble – minded.” Like many states at the time, Virginia had a eugenic program providing for the sterilization of the mentally disabled. “Carrie Buck is a feeble – minded white woman” who had been committed to a state institution, Holmes explained in his opinion. “She is the daughter of a feeble – minded mother in the same institution, and the mother of an illegitimate feeble – minded child.” It took him just a few sentences to dismiss the argument that the liberty protected by the Due Process Clause included a right not to be sterilized against one’s will. “We have seen more than once that the public welfare may call upon the best citizens for their lives,” Holmes declared, a few years after the First World War. “It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.” Holmes himself supported measures like the one at issue in Buck . As his biographer remarks, eugenics was the rare “legislative ‘reform’ about which Holmes did not have his customary skepticism.” This view came through clearly in his short opinion for the Court. “It is better for all the world,” he insisted, “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.” He concluded with what has become one of the most infamous lines in any Supreme Court opinion: “Three generations of imbeciles are enough.”

* As the Los Angeles Times editorialized [in 1942], “the theory that an alien invader has civil rights is absurd on its face.”

* Before the United States entered the war, in Minersville School District v. Gobitis (1940), the justices voted 8 – 1 in the government’s favor. The case was brought by a family belonging to the Jehovah’s Witnesses, a Christian denomination whose beliefs proscribed saluting the flag. Felix Frankfurter’s majority opinion exhibited little sympathy for them. “National unity is the basis of national security,” Frankfurter declared. “The flag is the symbol of our national unity, transcending all internal differences.” He concluded that if the government thought unity could best be achieved by a compulsory flag salute, the courts had no business saying otherwise.

* Furman v. Georgia [invalidating the death penalty] would be the farthest the Court would go in reinventing criminal procedure. The backlash was immediate. The day after Furman was decided, legislators in five states announced they would introduce bills to bring back the death penalty. Within a few years, thirty – five states and the federal government had new statutes authorizing capital punishment. Popular support for the death penalty skyrocketed. Fifty percent of respondents favored capital punishment in a Gallup poll conducted a few months before Furman was decided. A few months after Furman , the figure had grown to 57%, and within a few years it reached 65%. In every part of the country, the death penalty became more popular than it had been in many years, as people who had not given much thought to capital punishment now decided that the Supreme Court was wrong to abolish it.

* The right of privacy in matters of childbirth was a new constitutional right, but so were most of the constitutional rights the Court had recognized over the past two decades, such as the right to attend integrated schools, the right to advocate communism, the right to an attorney during questioning by the police, or the right to a vote that was worth as much as the votes of the people in the next county. When Roe v. Wade arrived at the Court, it looked like it would be just another in a long line of cases applying recently established rights in new contexts. Indeed, the district court in which the pseudonymous Jane Roe filed her suit had already anticipated this outcome. The district court relied on Griswold to rule that Roe was entitled to obtain an abortion because the Texas law prohibiting abortion infringed her constitutional right “to choose whether to have children.” In Roe ’s companion case, Doe v. Bolton , another district court likewise invalidated parts of Georgia’s abortion law on the ground that Griswold established “a right to privacy which apparently is also broad enough to include the decision to abort a pregnancy.” 62 To the extent Roe would involve any change in the law, the heavy lifting seemed to have already been done.
Unlike contraception, however, abortion was still illegal in most states in most circumstances. And while some of these state laws were quite old, others were not.