28

Skinner v. Oklahoma and the New Deal Court’s Avoidance of Substantive Due Process

To summarize this chapter so far: before the New Deal, the Supreme Court’s use of substantive due process had sometimes been used to protect personal or familial privacy rights, though it primarily focused on economic rights for businesses. However, the New Deal-era Court abandoned substantive due process altogether, worried that it could provide a foothold for future conservative justices to undo New Deal jurisprudence and the creation of the modern state. This meant rejecting the use of substantive due process doctrine for economic and non-economic rights alike. This dynamic continued for thirty years after FDR was elected.

The best-known example of the New Deal Court refusing to employ substantive due process to protect individual rights—even when the justices might have been inclined to do so—is the 1942 case Skinner v. Oklahoma. The case has its roots in one of the darker and less-discussed chapters of U.S. history: the eugenics movement.

Simplifying greatly, eugenics was the belief that negative character traits were hereditary, and could be bred out of the population by ensuring that those with negative behavior did not reproduce. This meant that habitual criminals or the intellectually disabled were sometimes sterilized by the state. Unsurprisingly, given the history of race and gender in this country, these laws were applied more often against women than men, and more often against minorities than whites. The Court rejected a challenge that these laws violated the Due Process Clause of the Fourteenth Amendment in Buck v. Bell (1927), during which Justice Holmes infamously agreed with Buck’s sterilization by writing that “three generations of idiots are enough.”

Oklahoma criminal law provided sterilization as a punishment for those who committed three or more felonies involving “moral turpitude,” or a grave violation of community standards. Skinner met this standard after committing multiple felonies (including both armed robbery and stealing chickens) and was sentenced to sterilization. The Oklahoma Supreme Court rejected Skinner’s appeal, and so he petitioned the Supreme Court.

The Court unanimously struck down the Oklahoma law. Importantly, the majority opinion did not rely on substantive due process or fundamental rights in doing so. Instead, it focused on the uneven application of the law to different types of crimes. Skinner did not overturn Buck v. Bell. Nevertheless, it is clear that the concern over Skinner’s rights (as the concurrences illustrate) also motivates the Court’s analysis, as Skinner is one of the first cases where the Court employs strict scrutiny in an Equal Protection case.

Skinner v. Oklahoma

316 U.S. 535 (1942)

Facts: Oklahoma law provided for the sterilization of someone who had committed three or more felonies “involving moral turpitude.” Skinner met his third “strike” and was sentenced to sterilization. He sued, arguing the sterilization law violated his fundamental rights under the Fourteenth Amendment’s Due Process and Equal Protection Clause.

Question: Does the Habitual Criminal Sterilization Act violate the 1) Due Process or 2) Equal Protection Clauses?

Vote: 1) Not reached; 2) Yes, 9-0

For the Court: Justice Douglas

Concurring opinion: Justice Stone

Concurring opinion: Justice Jackson

JUSTICE DOUGLAS delivered the opinion of the Court.

This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of … the right to have offspring. Oklahoma has decreed the enforcement of its law against petitioner, overruling his claim that it violated the Fourteenth Amendment…

The statute involved is Oklahoma’s Habitual Criminal Sterilization Act. That Act defines a “habitual criminal” as a person who, having been convicted two or more times for crimes “amounting to felonies involving moral turpitude,” either in an Oklahoma court or in a court of any other State, is thereafter convicted of such a felony in Oklahoma and is sentenced to a term of imprisonment in an Oklahoma penal institution. Machinery is provided for the institution by the Attorney General of a proceeding against such a person in the Oklahoma courts for a judgment that such person shall be rendered sexually sterile…

Only one other provision of the Act is material here, and that is § 195, which provides that:

offenses arising out of the violation of the prohibitory laws, revenue acts, embezzlement, or political offenses, shall not come or be considered within the terms of this Act.

Petitioner was convicted in 1926 of the crime of stealing chickens, and was sentenced to the Oklahoma State Reformatory. In 1929 he was convicted of the crime of robbery with firearms, and was sentenced to the reformatory. In 1934, he was convicted again of robbery with firearms, and was sentenced to the penitentiary. He was confined there in 1935 when the Act was passed. In 1936, the Attorney General instituted proceedings against him. Petitioner, in his answer, challenged the Act as unconstitutional by reason of the Fourteenth Amendment… A judgment directing that the operation of vasectomy be performed on petitioner was affirmed by the Supreme Court of Oklahoma by a five-to-four decision…

Several objections to the constitutionality of the Act have been pressed upon us. It is urged that the Act cannot be sustained as an exercise of the police power, in view of the state of scientific authorities respecting inheritability of criminal traits… It is argued that due process is lacking because, under this Act, unlike the Act upheld in Buck v. Bell, the defendant is given no opportunity to be heard on the issue as to whether he is the probable potential parent of socially undesirable offspring. It is also suggested that the Act is penal in character, and that the sterilization provided for is cruel and unusual punishment and violative of the Fourteenth Amendment… We pass those points without intimating an opinion on them, for there is a feature of the Act which clearly condemns it. That is its failure to meet the requirements of the equal protection clause of the Fourteenth Amendment…

… In Oklahoma, grand larceny is a felony. Larceny is grand larceny when the property taken exceeds $20 in value. Embezzlement is punishable “in the manner prescribed for feloniously stealing property of the value of that embezzled.” Hence, he who embezzles property worth more than $20 is guilty of a felony. A clerk who appropriates over $20 from his employer’s till and a stranger who steals the same amount are thus both guilty of felonies. If the latter repeats his act and is convicted three times, he may be sterilized. But the clerk is not subject to the pains and penalties of the Act no matter how large his embezzlements nor how frequent his convictions…

Under our constitutional system, the States, in determining the reach and scope of particular legislation, need not provide “abstract symmetry.” They may mark and set apart the classes and types of problems according to the needs and as dictated or suggested by experience… Thus, if we had here only a question as to a State’s classification of crimes, such as embezzlement or larceny, no substantial federal question would be raised…

But the instant legislation runs afoul of the equal protection clause, though we give Oklahoma that large deference which the rule of the foregoing cases requires. We are dealing here with legislation which involves one of the basic civil rights of man. Marriage and procreation are fundamental to the very existence and survival of the [human] race. The power to sterilize, if exercised, may have subtle, far-reaching and devastating effects. In evil or reckless hands, it can cause races or types which are inimical to the dominant group to wither and disappear. There is no redemption for the individual whom the law touches. Any experiment which the State conducts is to his irreparable injury. He is forever deprived of a basic liberty. We mention these matters not to reexamine the scope of the police power of the States. We advert to them merely in emphasis of our view that strict scrutiny of the classification which a State makes in a sterilization law is essential, lest unwittingly, or otherwise, invidious discriminations are made against groups or types of individuals in violation of the constitutional guaranty of just and equal laws… Sterilization of those who have thrice committed grand larceny, with immunity for those who are embezzlers, is a clear, pointed, unmistakable discrimination. Oklahoma makes no attempt to say that he who commits larceny by trespass or trick or fraud has biologically inheritable traits which he who commits embezzlement lacks… We have not the slightest basis for inferring that that line has any significance in eugenics, nor that the inheritability of criminal traits follows the neat legal distinctions which the law has marked between those two offenses. In terms of fines and imprisonment, the crimes of larceny and embezzlement rate the same under the Oklahoma code. Only when it comes to sterilization are the pains and penalties of the law different. The equal protection clause would indeed be a formula of empty words if such conspicuously artificial lines could be drawn…

CHIEF JUSTICE STONE, concurring.

I concur in the result, but I am not persuaded that we are aided in reaching it by recourse to the equal protection clause.

If Oklahoma may resort generally to the sterilization of criminals on the assumption that their propensities are transmissible to future generations by inheritance, I seriously doubt that the equal protection clause requires it to apply the measure to all criminals in the first instance, or to none.

…I think the real question we have to consider is not one of equal protection, but whether the wholesale condemnation of a class to such an invasion of personal liberty, without opportunity to any individual to show that his is not the type of case which would justify resort to it, satisfies the demands of due process.

There are limits to the extent to which the presumption of constitutionality can be pressed, especially where the liberty of the person is concerned… Although petitioner here was given a hearing to ascertain whether sterilization would be detrimental to his health, he was given none to discover whether his criminal tendencies are of an inheritable type. Undoubtedly, a state may, after appropriate inquiry, constitutionally interfere with the personal liberty of the individual to prevent the transmission by inheritance of his socially injurious tendencies. But, until now, we have not been called upon to say that it may do so without giving him a hearing and opportunity to challenge the existence as to him of the only facts which could justify so drastic a measure…

… A law which condemns, without hearing, all the individuals of a class to so harsh a measure as the present because some or even many merit condemnation is lacking in the first principles of due process… The state is called on to sacrifice no permissible end when it is required to reach its objective by a reasonable and just procedure adequate to safeguard rights of the individual which concededly the Constitution protects.

JUSTICE JACKSON concurring.

… the present plan to sterilize the individual in pursuit of a eugenic plan to eliminate from the race characteristics that are only vaguely identified and which, in our present state of knowledge, are uncertain as to transmissibility presents other constitutional questions of gravity. This Court has sustained such an experiment with respect to an imbecile, a person with definite and observable characteristics, where the condition had persisted through three generations…

There are limits to the extent to which a legislatively represented majority may conduct biological experiments at the expense of the dignity and personality and natural powers of a minority — even those who have been guilty of what the majority define as crimes…