Re-enactment to Mark the 100th Birthday of the "Brandeis Brief"

One hundred years after the Supreme Court handed down Muller v. Oregon, its language sounds antiquated and offensive to women. The Court upheld an Oregon law that made it a crime to require women to work more than 10 hours a day. To distinguish the law from other workplace regulations that the Lochner-era Court had struck down, the justices agreed that laws protecting women were in a special category. "That woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence is obvious," wrote Justice David Brewer for the Court.

The case has been criticized by feminists ever since, though it had the effect of encouraging other workplace reforms in spite of the 1905 Lochner decision. But the Muller case is now remembered not as much for its holding as for a brief filed by consumer advocate -- and future justice -- Louis Brandeis (photo below) in defense of the Oregon law. It was 113 pages long, but with only two pages about the law. The rest was devoted to summarizing economic, medical, and other research that bolstered the argument in favor of restricting women's work hours.

On Monday Dec. 15 at the Supreme Court, there will be a re-enactment of the argument in Muller, presided over by Justice Ruth Bader Ginsburg, the Court's only sitting female justice. Both advocates in the case are also women (and both are former Thurgood Marshall law clerks): Georgetown University Law Center professor Vicki Jackson and New York Solicitor General Barbara Underwood.

"It should be fun," says Court scholar Mel Urofsky, author of a forthcoming Brandeis biography. "The Brandeis brief has lived on to this day." 

Urofsky will start off the evening with a historical overview. The event is sponsored by the Supreme Court Historical Society and will launch its annual series of "Frank C. Jones Reenactments," named for the longtime president of the society who served until earlier this year. (Contact the society at 202-543-0400 for information and tickets.)

Perhaps the most famous "Brandeis brief" was filed in Brown v. Board of Education, to offer social science evidence documenting the harms of segregation. More recently, Brandeis-style briefs in the 2003 case Grutter v. Bolllinger argued the benefits to society, the economy, and even the military of affirmative action programs.

Brandeis briefs are not without detractors, notes Urofsky. "Scalia would not like them," he says, because they bring into a case arguments that are irrelevant to the original meaning of a constitutional provision or statute. 

And last term, in a now-famous footnote in the case Exxon Shipping Co. v. Baker (which we wrote about here in July), Justice David Souter distanced the Court from a Brandeis brief that cited studies about the unpredictability of punitive damages. "Because this research was funded in part by Exxon, we decline to rely on it," Souter wrote.