"Untested or Unquestioned Edicts"

Appellate Court judge in Illinois uses his dissent to give a history lesson on the dangers of depending on "expert opinion"

This is an excerpt from Justice Robert Steigmann’s dissenting opinion in Glass v. Department of Corrections, issued April 22nd. I agree with Steigmann that the majority erred in its interpretation of the Illinois Department of Health Act, and in its application of the Act to interpreting the Healthcare Right of Conscience Act.

The entire decision is worth reading. I’m featuring the second half of the dissent because it’s a well-written, easy-to-follow history lesson for those who have forgotten that zeitgeist and deference to “expert opinion” can and have driven even the highest court in the land to make shameful decisions with irreversible or long-lasting consequences.

Changes to formatting made for readability.

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[Excerpted. Emphasis mine.]

Underlying the directives the public employers gave to the plaintiffs in this case— namely, either become fully vaccinated against COVID-19 or, alternatively, if vaccination were unacceptable for moral or medical reasons, undergo regular testing for the virus—is the claim that these directives are based on scientifically sound judgments. In other words, the claim is that the executive branch officers and other public employers issuing these directives may do so because they are scientifically justified based upon the opinions of experts in the appropriate fields. For whatever reason, that underlying assumption seems not to have been challenged at the trial level

In a factually similar case, Chief Judge Sutton of the Sixth Circuit Court of Appeals wrote the following:

“It is one thing *** to require masks to minimize dangers to which ‘employees are exposed’ during the workday and at the workplace. It is quite another to make an across-the-board judgment that the employee is ‘strongly encouraged’—emphasis on strongly—to undertake a medical procedure (a vaccination) that cannot be  undone at the end of the workday.” In re MCP No. 165, 20 F.4th 264, 274 (2021) (Sutton, C.J., dissenting).

One of the lawyers arguing that same case later before the Supreme Court described Judge Sutton’s dissent as pointing out that “masks can come off, gloves can come off. *** [But] taking a vaccine is a permanent medical procedure that cannot come off after work is over.” Oral Argument Transcript, p. 71.

I have reservations about courts’ simply accepting such governmental edicts because some experts—whose opinions have never been presented in open court, subjected to cross-examination, or contested by other experts who may have different views—say those edicts are appropriate. In this regard, I readily concede that judges have no scientific expertise to bring on this subject; however, judges have plenty of experience resolving disputes between experts who do have scientific expertise. In fact, we (or a jury serving as a trier of fact) resolve such disputes all the time.

In the last 15 months alone, I personally have been involved in appeals in the following cases in which substantial disputes between experts arose: Allen v. Sarah Bush Lincoln Health Center, 2021 IL App (4th) 200360 (medical experts disagreed about whether the emergency room physician defendant properly treated patient who tests later revealed had a spinal epidural abscess); Johnson v. Armstrong, 2021 IL App (4th) 210038 (medical experts disagreed about how a hip replacement surgery was performed); Arkebauer v. Springfield Clinic, 2021 IL App (4th) 190967 (in medical malpractice action, plaintiff’s expert witness physicians testified defendant breached the standard of care during colonoscopy; defendant’s expert witness physicians testified that defendant did not breach the standard of care); In re Detention of Morris, 2021 IL App (4th) 190750-U (in sexually violent persons proceeding, State’s expert witness disagreed with respondent’s expert witness regarding whether respondent was a sexually violent person).

Indeed, the “scientific method” is the process of obtaining scientific consensus through rigorous examination and testing of scientific hypotheses. The scientific consensus is not achieved through untested or unquestioned edicts.

None of the above cases concerning disputes between experts involved fundamental constitutional rights, such as a directive from a governmental agency that an employee be injected, over the employee’s objection, with a substance that supposedly expert opinion deems beneficial and unlikely to cause harm. However, past experience has shown that courts have on occasion accepted the views of “experts” to the detriment of both citizens and the reputation of the judiciary.

In fact, two of the most shameful decisions ever rendered by a court in the United States were justified by reliance on the views of “experts” that government agencies accepted to justify clearly unconstitutional conduct, and yet the judiciary did not step in to protect those whose constitutional rights were trammeled. These cases are Korematsu v. United States and Buck v. Bell. ¶ 59 A. Buck v. Bell.

Buck v Bell

In Buck v. Bell, 274 U.S. 200 (1927), at issue was an appeal by a woman who challenged an order that the superintendent of the State Colony for Epileptics and Feeble Minded was to perform an operation upon her for the purpose of making her sterile. The United States Supreme Court described the plaintiff as follows: “Carrie Buck is a feeble-minded white woman who is committed to the state colony above mentioned in due form. She is the daughter of a feeble- minded mother in the same institution, and the mother of an illegitimate feeble-minded child. She was 18 years old at the time of trial.” Id. at 205.

The Court described a Virginia law, enacted in 1924, that stated, “the health of the patient and the welfare of society may be promoted in certain cases by the sterilization of mental defectives, under careful safeguard”—namely, that it be performed “without serious pain or substantial danger to life.” Id. The statute further provided that “whenever the superintendent of an institution like the State Colony is of the opinion that it is in the best interest of the patient and society that an inmate under his care should be sexually sterilized,” he may take steps to have the operation performed. Id.Those steps included presenting a petition to the board of directors of the institution, with an appeal possible by either the superintendent or the inmate to the local trial court. Id.

The Court noted that the contention on appeal was not upon the procedure afforded Buck, but instead that “in no circumstances could such an order be justified.” Id. The Court rejected Buck’s appeal in a decision by Justice Oliver Wendall Holmes, who wrote the following:

“It is better for all the world, 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.” Id.

Justice Holmes summed up his conclusion with the following observation: “Three generations of imbeciles are enough.” Id.

Although what Justice Holmes wrote in Buck appears shocking to our modern sensibilities, those words in the context of their time were not shocking or reprehensible. That no doubt accounts for why only one justice dissented, and he did not even bother to write anything to explain why he was dissenting.

My point in mentioning Buck v. Bell is to emphasize that in the context of the time in which that opinion was written, what Justice Holmes wrote was consistent with the views of  “experts” on the subject of how the “feeble-minded” should be treated, and, in fact, there was what we might now term a “scientific consensus” on that subject. The “science” was eugenics.

In a 1985 dissent, Justice Thurgood Marshall explained eugenics and its societal effects by writing as follows:

“Fueled by the rising tide of Social Darwinism, the ‘science’ of eugenics, and the extreme xenophobia of those years, leading medical authorities and others began to portray the ‘feeble-minded’ as a ‘menace to society and civilization ... responsible in a large degree for many, if not all, of our social problems.’ ” (Emphasis added.) City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 461- 62 (1985) (Marshall, J., concurring in part and dissenting in part).

In 2019, Justice Clarence Thomas wrote the following about eugenics in a specially concurring opinion:

“By the 1920s, eugenics had become a ‘full-fledged intellectual craze’ in the United States, particularly among progressives, professionals, and intellectual elites. Leaders in the eugenics movement held prominent positions at Harvard, Stanford, and Yale, among other schools, and eugenics was taught at 376 universities and colleges.” Box v. Planned Parenthood of Indiana & Kentucky, Inc.

Korematsu v. United States

In Korematsu v. United States, 323 U.S. 214, 215-16 (1944), an American citizen of Japanese descent was convicted for remaining in a California city contrary to a civilian exclusion order, which directed that all persons of Japanese ancestry be excluded from that area. The Court affirmed the defendant’s conviction, and in doing so, cited approvingly its earlier decision affirming the internment of American citizens of Japanese ancestry in Hirabayashi v. United States, 320 U.S. 81 (1943). The Court quoted from Hirabayashi as follows:

“ ‘[W]e cannot reject as unfounded the judgment of the military authorities and of Congress that there were disloyal members of that [Japanese ethnic] population, whose number and strength could not be precisely and quickly ascertained. We cannot say that the war-making branches of the Government did not have ground for believing that in a critical hour such persons could not readily be isolated and separately dealt with, and constituted a menace to the national defense and safety, which demanded that prompt and adequate measures be taken to guard against it.’ ” Id. at 219 (quoting Hirabayashi, 320 U.S. at 99).

In early 1942, President Franklin D. Roosevelt entered the executive order leading to the internment of all persons of Japanese ancestry, including natural-born American citizens, based upon strong advice to do so that he received from the military “experts,” as well as then- California Attorney General Earl Warren. The “experts” on the subject of national security on the west coast of the United State had a clear consensus, if not unanimity, that removing all persons of Japanese ancestry from the west coast was prudent and necessary.

Justice Roberts strongly dissented in Korematsu because he believed the indisputable facts exhibited a clear violation of constitutional rights. Id. at 225 (Roberts, J., dissenting). Justice Roberts wrote the following:

“[This is a] case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States.” Id. at 226.

My reason for citing Korematsu, as was the case with my citing Buck, is to point out that “expert opinion” is occasionally wrong and ought not ever be accepted as “received wisdom” just because the experts say so.

And I wish to emphasize that I am not accusing any of the “experts” upon whom the Courts in Buck and Korematsu relied of acting in bad faith. I have no doubt they truly believed in what they were saying and further believed it was all in the public good. But they were terribly wrong.

That is where the courts come into play. Throughout history, rulers have been issuing edicts that required their subjects to engage in conduct that they do not want to engage in. The rulers required compliance by the threat of force or other dire consequences for the noncompliant. Only relatively recently have courts stepped in to protect citizens from governmental overreach, and generally only those in Western nations, primarily the United States. History shows—and our constitution provides—that the courts are the only true protector and guarantor of the fundamental rights of citizens. They rightly look to the judiciary to curb executive overreach and to protect their fundamental rights.

In the cases I mentioned earlier, Buck and Korematsu, the courts’ failures to live up to those standards was shameful. However, it is not enough to acknowledge those failures; instead, those cases should stand as a clarion call for the judiciary to protect fundamental constitutional rights, even when so-called “experts” deem such rights unworthy of protection because of whatever emergency they claim currently exists.