Justice Ginsburg on Justice Brandeis and the 'Brandeis Brief'

On Thursday, Justice Ruth Bader Ginsburg spoke at Brandeis University on Justice Louis Brandeis and the influence of his famous brief in Muller v. Oregon. In his brief, he compiled non-legal authorities in support of the constitutionality of Oregon's law limiting women workers to 10-hour days in factory and laundry work.

Not surprisingly, Ginsburg is ambivalent about Brandeis and his brief. As a feminist attorney who worked to overturn sex distinctions in American law, she is appalled by some of the nonsensical "authority" relied upon by Brandeis to justify the hours law, such as the notion that women's blood has more water than man's blood. On the other hand, she admires Brandeis's progressivism, and his pioneering use of science and social science in arguments to the Supreme Court.

As someone who has written quite a bit about Brandeis, Muller, and legal progressivism, not surprisingly I have some quibbles with Ginsburg's account of Brandeis. One significant quibble is that she asks whether Brandeis's brief in Muller was successful because it actually persuaded some of the Justices who would have otherwise been inclined to invalidate the law under Lochner to instead uphold the law, or because the brief reinforced the Justices' (sexist) preconceptions. In my view, it's unlikely that the brief influenced a single vote on the court, as I explain in this article:

In retrospect it's clear that the leading case on maximum hours laws was not Lochner, but Holden v. Hardy, which upheld a law restricting the hours of miners. The only dissenters in Holden were Justices Peckham and Brewer, and they were the only Justices who, based on their voting patterns, were plausibly going to vote to invalidate the law at issue in Muller. While Justice Brewer, who had no sympathy for Brandeis's Progressivism, made the unusual gesture of acknowledging Brandeis's brief in a footnote [to his opinion for the Court in Muller], Brewer only stated that the brief provided evidence supporting the "common belief" that long hours of labor were harmful to women and their progeny. Under Lochner and other precedents either common knowledge or scientific evidence was sufficient to justify labor regulation as a proper "health law" under the police power. Brandeis's sociological presentation was therefore legally superfluous. Later that year, Brewer defended his opinion without reference to the famous brief. Instead, he argued with regard to women that "[t]he race needs her, her children need her; her friends need her, in a way that they do not need the other sex." Moreover, Brewer's opinion won support across the political spectrum, including from sources (such as The Nation) that had supported Lochner. Protective labor laws for women were simply thought to be in a different category than laws that "protected" healthy male bakers.

I disagree more emphatically with Ginsburg when she says she admires Brandeis's ability to combine his belief in judicial restraint with support for civil rights and civil liberties. As I explain in this article, Brandeis did have a more civil libertarian judicial career than one might expect from a progressive Justice of his era (and was "better" in this regard than his colleague and progressive favorite Oliver Wendell Holmes), and he was considered a civil libertarian at a time when civil libertarianism was largely limited to protecting the rights of dissenters and being favorably inclined to labor unions. However, Brandeis's record on the court includes many significant deviations from civil libertarianism as it came to be understood in the post-New Deal period. These deviations include his acquiescence to coercive eugenics, his general lack of interest in African American rights, his support for protective labor legislation for women and concomitant disregard for women's legal equality, his toleration of government abuses attendant to Prohibition enforcement, and his desire to repeal the 14th Amendment. Brandeis is better seen as a transitional figure between the statist Progressivism of the early 20th century and post-World War II legal liberalism. In any event, it's far too simplistic, and too generous to Brandeis, to portray him as anything approaching a consistent champion of civil rights and civil liberties. In fairness to Ginsburg, as I explain in the article linked above, for decades Brandeis has been routinely depicted as a great civil libertarian, a reflection of what post-war liberals thought Brandeis must have believed, rather than his actual record.