The center seat at the Supreme Court is usually reserved for the chief justice, but Justice Ruth Bader Ginsburg looked right at home sitting there Monday night at an event sponsored by the Supreme Court Historical Society. She was presiding solo over a re-enactment -- or a "re-envisioning," as society president Ralph Lancaster Jr. put it -- of Muller v. Oregon.
Muller is the 100-year-old case in which the justices upheld an Oregon law that limited to ten the number of hours a woman could work in a day at a factory or laundry. It is probably most-remembered, however, for a brief filed by then-consumer advocate Louis Brandeis in support of the law. Known since as the "Brandeis brief," it dwelled not on the facts or law of the case but on social science and health research, statistics and government labor reports to make its case. It was new then, but the concept has been repeated countless times to inform courts of relevant information outside the record of the case.
Georgetown University Law Center professor Vicki Jackson had the task of arguing against the law on the Lochner-era grounds that it violated the "liberty of contract" between employer and employee. New York Solicitor General Barbara Underwood had the equally challenging assignment of defending the paternalistic law as recognizing "women's special physical characteristics" and socety's dependence on women to bear children.
Though tethered to the 1908 case, Ginsburg and the advocates could not resist occasional references to more modern law and society, as when Ginsburg said, "I'm told that men are willing to do women's work if they are paid more."
Ginsburg also made an unmistakable reference to the modern debate over whether judges who are interpreting the U.S. Constitution should consider foreign laws, rulings and data. Ginsburg is prominently in the camp of those who think U.S. judges can learn from foreign sources. But last night, noting that the Brandeis brief contained numerous references to studies and laws from Europe about women in the workforce, she asked Underwood, "What is the relevance of all these practices and regulations abroad? Shouldn't we disregard them?" Underwood's elegant answer was that the differences between men and women are the same in Europe as in America.
Given Ginsburg's early career as an advocate for women's rights, it might have been safe to guess that at the end of the mock oral argument, she would strike down the Oregon law. But that guess would have been wrong. After arguments were over, she said she had read Muller many times in connection with her women's right litigation, but found it less offensive than other laws purporting to protect women, such as a Michigan law that kept women from working in bars, or the Florida law that kept women off juries. The latter law, Ginsburg noted, was upheld by the "so-called liberal" Warren Court in the 1961 case Hoyt v. Florida.
As for Muller, Ginsburg said, "the intention was certainly benign." But more importantly, she said, Muller served as "an opening wedge" that moved the nation out of the Lochner era's exaltation of the freedom of contract and into an era where wage and hours laws protecting all workers were possible. As a result, Ginsburg said, "Were I sitting on this court in 1908, I would be in the majority in Muller."
The event Monday night was a provocative and auspicious launch for what will be an annual series of re-enactments, christened to honor former president Frank Jones for his years of service to the historical society.