Skinner v Oklahoma (1942) is an important US Supreme Court decision, because, in annulling an Oklahoma sterilisation law, it supposedly inaugurated the modern era of civil rights. As William O Douglas, perhaps the most activist of the court’s liberal judges, observed in Skinner’s opening sentence: ‘This case touches a sensitive and important area of human rights. Oklahoma deprives certain individuals of a right which is basic to the perpetuation of a race – the right to have offspring.’ From this resonant reasoning are thought to flow many later decisions – famously, in Roe v Wade (1973), the ‘right to privacy’ – that have appalled conservatives, who can locate no such rights in the text of the constitution. Victoria Nourse plausibly suggests that this interpretation of Skinner is erroneous and that the decision, despite being made by a court staffed by New Dealers, reflected an older, not an innovative jurisprudence.
Her story goes like this. Early in the twentieth century, eugenics was a respectable science, taught widely in high schools and universities. By 1933, twenty-seven states had sterilisation laws aimed at sundry people whose progeny, it was thought, might inherit criminality and madness. There was much talk about