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Thu Mar 28, 2024, 09:08 AM Mar 28

On This Day: "Tyranny from the bench"- SC sides with judge who ordered forced sterilization - Mar. 28, 1978

(edited from article)

Maryland Law Review
This Article presents a new historical account of Stump v. Sparkman, one of the most controversial Supreme Court decisions in the past fifty years. Stump is the 1978 judicial immunity opinion in which the Supreme Court declared that judges are absolutely immune from liability for their official judicial acts, even if such acts are done maliciously or flawed by the commission of grave procedural errors. The context of the case was horrific. It involved the involuntary sterilization of a fifteen-year-old girl; she was sterilized pursuant to a court order that her mother had obtained from a state judge without any notice to the child, appointment of a lawyer to represent her, presentation of evidence, or opportunity to appeal. As an adult she sued the judge and lost on the basis of the judicial immunity doctrine

Sparkman appealed to the Seventh Circuit, which unanimously reversed on the immunity question. Although the court acknowledged Bradley and Pierson as relevant authority, it found the facts of Sparkman’s case to lie outside the boundaries of the judicial immunity doctrine as defined by those precedents. “Judicial immunity,” the court said, “is available . . . only where the judge has jurisdiction.” Judge Stump’s action did not meet this requirement, according to the court. Indiana statutes in existence at the time permitted sterilizations, but only of institutionalized persons and only if certain procedures were followed. These procedures included the right to notice, the opportunity to defend, and the right to appeal. According to the Seventh Circuit, this statutory scheme “negat[ed]” subject matter jurisdiction; there was simply no statutory authority for Judge Stump’s actions. Nor did the common law, according to the court, provide any jurisdictional basis for Judge Stump’s order. In sum, the Seventh Circuit found no express basis in statutory or common law for a court to order the sterilization of a
minor child simply upon a parent’s petition. To give judges immunity in such cases, Judge Swygert wrote, “would be sanctioning tyranny from the bench.”

Judge Stump and his co-defendants appealed to the Supreme Court. The law clerk assigned to review Stump’s petition for certiorari recommended against hearing the case, because he thought there would be “institutional costs.” As he explained:

This is a sordid case. If this Court grants review the case will
attract even wider attention and publicity than it has already
received—all for the wrong reasons.


(edited from Wikipedia)
Stump v. Sparkman

Stump v. Sparkman, 435 U.S. 349 (1978), is the leading United States Supreme Court decision on judicial immunity. It involved an Indiana judge who was sued by a young woman who had been sterilized without her knowledge as a minor in accordance with the judge's order. The Supreme Court held that the judge was immune from being sued for issuing the order because it was issued as a judicial function. The case has been called one of the most controversial in recent Supreme Court history.


In 1971, Judge Harold D. Stump granted a mother's petition to have a tubal ligation performed on her 15-year-old daughter, who the mother alleged was "somewhat retarded". The petition was granted the same day that it was filed. The judge did not hold a hearing to receive evidence or appoint a lawyer to protect the daughter's interests. The daughter underwent the surgery a week later, having been told that she was to have her appendix removed.

The daughter married two years later. Failing to become pregnant, she learned that she had been sterilized during the 1971 operation. The daughter and her husband sued the judge and others associated with the sterilization in federal district court.

The district court found that the judge was immune from suit. The Seventh Circuit Court of Appeals reversed the decision, holding that the judge had lost his immunity because he failed to observe "elementary principles of due process" when he ordered the sterilization. Finally, in 1978, [on March 28,] the U.S. Supreme Court, in a 5-3 decision, reversed the Court of Appeals, announcing a test for deciding when judicial immunity should apply and holding that the judge could not be sued.

The holding

Addressing Judge Swygert's assertion that even if Judge Stump had jurisdiction he was deprived of immunity because of his failure to observe elementary principles of procedural due process, Justice White countered:

A judge is absolutely immune from liability for his judicial acts even if his exercise of authority is flawed by the commission of grave procedural errors.

["a loose cannon"]

Associate Justice Potter Stewart entered a vigorous dissent. Agreeing that judges of general jurisdiction enjoy absolute immunity for their judicial acts, he wrote, "...what Judge Stump did...was beyond the pale of anything that could sensibly be called a judicial act." Stating that it was "factually untrue" that what Judge Stump did was an act "normally performed by a judge", he wrote "...there is no reason to believe that such an act has ever been performed by any other Indiana judge, either before or since."

Justice Stewart also denounced it as "legally unsound" to rule that Judge Stump had acted in a "judicial capacity". "A judge is not free, like a loose cannon", he wrote, "to inflict indiscriminate damage whenever he announces that he is acting in his judicial capacity."

Concluding, Justice Stewart argued that the majority misapplied the law of the Pierson case:

Not one of the considerations...summarized in the Pierson opinion was present here. There was no "case," controversial or otherwise. There were no litigants. There was and could be no appeal. And there was not even the pretext of principled decision making. The total absence of any of these normal attributes of a judicial proceeding convinces me that the conduct complained of in this case was not a judicial act.

Justice Powell's dissent

Joining in Justice Stewart's opinion, Justice Lewis Powell filed a separate dissent that emphasized what he called "...the central feature of this case - Judge Stump's preclusion of any possibility for the vindication of respondents' rights elsewhere in the judicial system." Continuing, he wrote:

Underlying the Bradley immunity...is the notion that private rights can be sacrificed in some degree to the achievement of the greater public good deriving from a completely independent judiciary, because there exist alternative forums and methods for vindicating those rights.

But where a judicial officer acts in a manner that precludes all resort to appellate or other judicial remedies that otherwise would be available, the underlying assumption of the Bradley doctrine is inoperative.


The decision has been called one of the most controversial decisions in Supreme Court history.

2007 marked the centennial of the 1907 Indiana sterilization law, the first of its kind in the world. Although Linda Sparkman was not sterilized under any of the eugenics laws still on the books in Indiana in 1971, she was invited to unveil a state historic marker describing the original law on April 12, 2007, in Indianapolis. Indiana repealed all laws concerning sterilization of the mentally ill in 1974.


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