Oliver Wendell Holmes appears in The Bob Zadek Show as a recurring reference point for two related ideas: judicial deference to the elected branches, and the Progressive-era confidence in expertise that produced the eugenic sterilization upheld in Buck v. Bell. Across five episodes spanning 2014 to 2021, host Bob Zadek and his guests invoke Holmes by name, by aphorism, and by case, treating him as the emblem of a judicial philosophy that subordinates the courts to the legislature and, in Zadek’s telling, to whatever the science of the day happens to be.
Holmes and judicial deference
In the 2014 episode with Damon Root on the libertarian legal movement, Zadek frames judicial deference as the view that courts, and specifically the Supreme Court, should bend over backwards to find laws constitutional because laws were passed by representatives of the people. He describes deference as a bias in favor of finding a law constitutional, and he names Holmes alongside Felix Frankfurter as jurists who bought into that system. In Zadek’s summary, they say they defer to the wisdom of the legislature even if individual rights may be sacrificed along the way. Zadek argues that deference elevates the elected branches above the Supreme Court and almost subordinates the Court’s own role in American life Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
Root, the guest, does not dispute the Holmes association but shifts the emphasis to the original progressives of the late nineteenth and early twentieth centuries, who wanted the courts to play a very small role in questions of the government’s role in the economy. Root says they thought the courts should almost never declare an act of a state legislature or Congress unconstitutional, and that the burden of proof to declare an economic regulation unconstitutional was so high it could almost never be met. Root describes Frankfurter as a progressive activist, law professor, and advisor to Franklin Roosevelt’s New Deal who was then appointed to the Supreme Court, and who believed the elected branches should be given wide latitude by the courts. Holmes is not discussed further in the excerpt, which breaks off as Zadek begins a section on economic rights and the New Deal Overruling Government Overreach: Damon Root on the Libertarian Legal Movement (2014).
The dog and criminal intent
Holmes surfaces in a different register in the 2015 episode with Brian Walsh on overcriminalization. Walsh, discussing the requirement that crimes include criminal intent, quotes Holmes: “Even my dog knows the difference between my stumbling over him and my intentionally kicking him.” Walsh uses the line to illustrate the distinction between inherently wrongful conduct done on purpose and accidental harm, which he says the law should regulate through the civil law rather than through prosecution. The excerpt places the quotation in the context of Walsh’s argument that many federal crimes today regulate conduct a person may not know is prohibited, and that the government should have to prove intent “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Zadek’s framing in that episode is that the purpose of criminal law is to deter people from acts society finds deleterious and to punish people who do bad acts, and that deterrence fails when laws are so complex that nobody knows until after the fact that they have done something wrong. He calls the result a gotcha and warns that it produces a civic cancer, a loss of respect for the law. Holmes’s dog aphorism is the only quotation from Holmes in the excerpt, and it is used to support the mens rea principle rather than to discuss Holmes’s jurisprudence “You’re Under Arrest!”: Overcriminalization with Brian Walsh (2015).
Eugenics and Buck v. Bell
The most sustained treatment of Holmes comes in the 2015 episode with David Boaz on The Libertarian Mind. Zadek raises the famous Holmes quotation from his time on the Supreme Court, in a case about the sterilization of a woman with mental problems. Zadek notes that Holmes used the word then in use, not in use anymore, “imbecile,” and that as a sitting justice voting in favor of her reproductive ability being removed, Holmes said, “Three generations of imbeciles are enough.” Boaz confirms the quotation and describes Holmes as a leading progressive whose view was a progressive view back then. Boaz adds that he does not think any progressives today would hold such views, but that the episode indicates progressives cared about the poor and also about the people as a national resource David Boaz on The Libertarian Mind (2015).
The context in that episode is a broader discussion of the original progressives and eugenics. Boaz says the early twentieth-century progressives wanted to help the poor, and one of the ways they wanted to help them was by producing fewer of them, so they favored eugenics and passed laws that would, for instance, forcibly sterilize women judged to be mentally incompetent. Zadek’s introduction to the exchange frames progressives as operating as if they own the heart, and Boaz responds that the welfare system has trapped generations of Americans into dependency. Holmes’s sterilization quotation is the concrete historical anchor for the eugenics portion of the discussion David Boaz on The Libertarian Mind (2015).
”Follow the science”
Holmes returns in the 2020 episode with Robert C. Wright on the decline of American independence, in a segment on science, economics, and policy. Zadek, responding to Wright’s article about Joe Biden’s pledge to listen to scientists, brings up eugenics as an example of mainstream science in the 1920s. He describes Holmes as a Supreme Court justice in a scary decision from the 1920s, when the Court was asked to decide whether a Southern state—Zadek says he thinks it was Mississippi but that he could be wrong—could impose compulsory sterilization on somebody with impaired mental ability. Zadek says the woman was a third generation of a family with impaired mental ability, and that the question was whether that was constitutional. In concluding that it was, Zadek says, Holmes quoted science, if you will, and then said the famous line, “Three generations of imbeciles are enough.” Zadek’s conclusion is: “Follow the science? I don’t think so” The Decline of American Independence (2020).
Wright’s own contribution in the excerpt is about the phrase “the scientists” and the nature of science as a process rather than a thing. He says there is hardly a consensus, and that science is supposed to be rigorous, with evidence that has a logical relationship to observed results that can be replicated by other researchers. He discusses the Peltzman effect in the context of seatbelt laws and mask mandates. Holmes enters the exchange only through Zadek’s eugenics example, which Zadek uses to warn against treating any particular scientific consensus as a command The Decline of American Independence (2020).
Buck v. Bell and bodily autonomy
The 2021 episode with Jenin Younes and Todd Zywicki on vaccine mandates, George Mason, and the Bill of Rights gives Holmes his most detailed legal treatment. Zywicki, discussing the source of a right to bodily autonomy, calls Jacobson v. Massachusetts the case that stands for the proposition that you can mandate vaccines, and then turns to Buck v. Bell. He describes it as the famous case in which the Supreme Court, by what he believes was an 8-to-1 vote or possibly 9-to-0, upheld a Virginia law that required or permitted forced sterilization of people considered mentally ill. Zywicki says the woman in the case was considered uppity because she would not bow to her superiors. He recalls Holmes saying that the law permitting forced vaccination can also require forced tying of the fallopian tubes, and gives the aphorism as “three generations of imbeciles is enough.” Zywicki says Holmes’s sole citation for that was Jacobson, and he calls Buck v. Bell a low-water mark for American jurisprudence Vaccine Mandates, George Mason, and the Bill of Rights (2021).
Younes, earlier in the same excerpt, makes the constitutional argument that the Constitution does not lay out all of our rights, that the Bill of Rights existed to preserve certain specific rights but not everything society accepts as reasonable, and that courts have recognized rights implicitly in amendments such as the 9th and 14th. She cites cases dealing with forcibly medicating mentally ill people. Zywicki adds that the right has been recognized with respect to mentally ill patients and, he believes, prisoners. His broader point is that a constitutional right does not necessarily mean a veto power; it imposes an obligation on the state to justify what it wants to do to you. Otherwise, he says, you end up where Jacobson ended up, which he calls a notorious and revolting case Vaccine Mandates, George Mason, and the Bill of Rights (2021).
Across episodes
The excerpts show no development in the treatment of Holmes across the five episodes. He is invoked in 2014 as a deferential jurist alongside Frankfurter, in 2015 as the author of the dog aphorism on intent and as the author of the sterilization aphorism, in 2020 as the justice who quoted the science of his day, and in 2021 as the author of Buck v. Bell and its reliance on Jacobson. The same quotation and the same case carry the same meaning each time; no guest or host revises the earlier characterization.
What the sources do not cover
The excerpts do not state Holmes’s dates of birth or death, his tenure on the Supreme Court, or the names of the parties in the sterilization case beyond Buck v. Bell as given by Zywicki. They do not identify the state whose law was at issue in the 2020 discussion, since Zadek says he thinks it was Mississippi but that he could be wrong, and Zywicki identifies the law as Virginia’s. The excerpts do not give the holding of Jacobson v. Massachusetts beyond the proposition that you can mandate vaccines, and they do not state which amendment the bodily autonomy cases turned on beyond Younes’s reference to the 9th and 14th.