In late 1907, Louis Brandeis had just begun to gain a national reputation because of his fight against the New Haven, and only a few people knew of him outside of Massachusetts. During the preceding decade he had become an active progressive in the Bay State, devoting more and more time to reform work, and in doing so, he developed some specific ideas about the legal profession and its responsibilities to society. He also watched with growing concern how conservative judges utilized the Due Process Clause of the Fourteenth Amendment to erect a constitutional barrier against progressive efforts to ameliorate, through protective legislation, the harsh effects of industrialization on workers. When the National Consumers League offered him a chance to defend a maximum-hours law before the Supreme Court, Brandeis seized it, and his brilliant lawyering in Muller v. Oregon moved him onto the national stage. From then until his appointment to the bench in 1916, he would be counted among the preeminent progressives of the era.
THE TRANSFORMATION of the practice of law in the late nineteenth century may have been a necessary response to the legal needs of the new industrial society (see chapter 3), but it raised troubling questions about the role of lawyers, their responsibilities not only to clients but also to the public, and their status in the community. By 1900 the practice of law—the business of law—had changed. While the majority of lawyers still operated as solo practitioners, the more lucrative work of big banks and corporations went to larger firms whose members developed specialties designed to serve commercial clients. Where people had previously seen lawyers as independent professionals, now, according to critics, the public saw them as hired hands, better paid to be sure, but with no more independence than any other employee of a large corporation. Interestingly, much of this criticism came from within the profession itself.
To take one example, George Shelton, a prominent San Francisco attorney, charged in 1900 that when a man practiced law as no more than “a means of earning his daily bread, he is prompted by no lofty ideals, stimulated by no particular enthusiasm, and seeks only pecuniary rewards as will bring him the luxuries of life before old age has deadened his powers of gratification. His motives are as sordid and his activities as mercenary as can be found in any other occupation.” In 1910 the newly elected governor of New Jersey, Woodrow Wilson, called on lawyers to return to “the service of the nation as a whole, from which they have been drifting away.” A few years later, former president William Howard Taft, upon joining the Yale Law School, gave a series of lectures in which he acknowledged, with great sorrow, “that the profession of law is more or less on trial.”
Leaders of the bar, many of them corporate lawyers in the new large firms, heard this criticism. They believed that while they still tried to adhere to some of the older values, many of the younger and less talented lawyers indeed fit the description of hired hands and intellectual jobbers. Lawyers concerned with the loss of community leadership and moral authority explored other avenues to see if there might be some way to reclaim the high ground while recognizing the facts of modern industrial life. No one spoke as forcefully for professional reform as Louis Brandeis, and here again, as in his economics, moral fervor more than anything else characterized his views.
IN THE SPRING OF 1905, Brandeis accepted an invitation from the Harvard Ethical Society to speak on the “ethics of the legal profession” and on 4 May gave what many consider the embodiment of the reform critique of the legal profession. Brandeis certainly attacked what he considered wrong and misdirected, but his general tone was optimistic, and he titled the talk he gave that evening at Phillips Brooks House “The Opportunity in the Law.”
He began by rephrasing the topic he had been asked to speak about, ethics, and declared that his listeners, “standing not far from the threshold of active life, feeling the generous impulse for service which the University fosters,” wanted to know if they could lead lives that would be useful to their fellow men. One could do this in any profession, business, or trade because how people pursue their occupations is far more important than what that occupation may be. Certainly law, at least in the past, had offered plentiful opportunity for service. He then rehearsed Alexis de Tocqueville’s commentary on lawyers as an American elite, because their training gives them a unique opportunity for service, and then explained how lawyers, trained to find and analyze facts, are, in a seeming paradox, judges even as they are advocates. The examination of the law and the facts shows them that there is often more than one party that has right on its side in a conflict, and so the lawyer must, as a judge, weigh the evidence and then give his client the proper advice, especially if in his judgment the client may be in the wrong.
The chairman of the ethical society had begun the session with the comment “People have the impression to-day that the lawyer has become mercenary.” Brandeis tried to play this down by claiming that business had become more professionalized, and the close connection between the two gave the lawyer an important part in business affairs. There is some difficulty reconciling Brandeis’s encomiums to businessmen who had created a new plane of operations that required judgment of the highest order with his later attacks on business leaders. He had, of course, William McElwain in mind, and the hope that enlightened businessmen, guided by wise, objective, and moral legal advisers, would do the right thing. It may also have been a tactical ploy, designed to show the students that he was not a rabid antibusiness populist or political radical.
But, alas, it is true, Brandeis conceded, “that at the present time the lawyer does not hold as high a position with the people as he held seventy-five or even fifty years ago.” And then Brandeis, in no uncertain terms, told the Harvard undergraduates where the blame lay:
Instead of holding a position of independence, between the wealthy and the people, prepared to curb the excesses of either, able lawyers have, to a large extent, allowed themselves to become adjuncts of great corporations and have neglected the obligation to use their powers for the protection of the people. We hear much of the “corporation lawyer,” and far too little of the “people’s lawyer.” The great opportunity of the American Bar is and will be to stand again as it did in the past, ready to protect also the interests of the people.
He went on to attack those “leading lawyers,” men who should have utilized their talent and influence for the good of the public but who perverted their abilities on behalf of corporations, “often in endeavouring to evade or nullify the extremely crude laws by which legislators sought to regulate the power or curb the excesses of corporations.” He found it not only strange but disconcerting that the leaders of the bar almost unanimously ranged themselves on the side of the big corporations, and, he warned, there would be a price to pay for it. If the bar abandoned the interests of the people, then the people would rebel, through the ballot box, against the capitalists, and the results would be unhappy for all. For a generation, he charged,
the leaders of the Bar have, with few exceptions, not only failed to take part in constructive legislation designed to solve in the public interest our great social, economic and industrial problems; but they have failed likewise to oppose legislation prompted by selfish interests. They have often gone further in disregard of the common weal. They have often advocated, as lawyers, legislative measures which as citizens they could not approve…. They have erroneously assumed that the rule of ethics to be applied to a lawyer’s advocacy is the same where he acts for private interests against the public, as it is in litigation between private individuals.
In a private case, the lawyer’s responsibility is to make the best argument for his client, knowing that the attorney for the other side will do the same and that the merits will then be weighed by a judge or jury. In cases where one side or the other is clearly in the right, the usual practice is to settle before trial. It is the lawyer’s obligation to give good advice to the client and then to defend the client’s interests to the best of his ability. Implicit in this argument, of course, is the assumption that a lawyer need not believe that his client is in the right; the adversarial system would resolve the issue. (Ironically, Brandeis himself, as we have seen, would later be criticized for refusing to take cases unless the client could convince him of the rightness of his complaint.) But whereas private interests could afford, and thus get, the very best legal representation, the public often did not have any attorneys looking after its interests. Lawyers of high standing had ignored the public interest, leaving its representation to less experienced, and often less capable, advocates. Moreover, those representing the private interests had refused to understand that the public did not stand in the same position vis-à-vis private corporations as did other private interests; the public good occupied—or should occupy—a higher plane of influence, and this should be recognized by those at the bar serving the great corporations.
The next generation, Brandeis warned, would, if present conditions continued, witness a growing contest between those who have and those who have not. “People are beginning to doubt whether in the long run democracy and absolutism can co-exist in the same community; beginning to doubt whether there is a justification for the great inequalities in the distribution of wealth, for the rapid creation of fortunes…. The people have begun to think; and they show evidence on all sides of a tendency to act.” The great challenge of the coming years would be to temper this growing conflict, to mediate between the people on one side and corporate interests on the other. “Here, consequently, is the great opportunity in the law,” he asserted. The country needed a new generation of lawyers who would serve as prior generations had done, looking past immediate claims toward the greater good, acting as statesmen rather than as mercenaries, recognizing the right, and acting to protect it. Nothing could better prepare his audience, he concluded, “for taking part in the solution of these problems, than the study and pre-eminently the practice of law. Those of you who feel drawn to that profession may rest assured that you will find in it an opportunity for usefulness which is probably unequalled. There is a call upon the legal profession to do a great work for this country.”
(At least a few of the undergraduates present that day chose to heed Brandeis’s call to enter public service. Years later, when Brandeis was about to give a campaign speech at the University of Minnesota, he told his wife that he had to take particular care in what he said to students, for one never knew what seed might be sown. “I am meeting here & there men who heard my lecture at Brooks House years ago & say it wholly changed their point of view.” When Brandeis repeated the talk at the Fogg Art Museum for law school students, it made a deep and lasting impression on young Felix Frankfurter.)
One cannot miss the moralistic tone in this important talk. As a lawyer, Brandeis had attempted to serve the best interests of his clients by asking them to act in a moral manner. If in fact they did not have right on their side, then they should settle. When dealing with their workers, they should remember that they held much greater power than those who labored for them and so were obliged to treat them fairly. Similarly, his attacks on the trusts dealt less with their control of the marketplace per se than with the negative effects this control had on the nation’s political life and on the opportunities of individual entrepreneurs.
In his account of what had happened to the legal profession, Brandeis spoke in the same voice as did others who lamented the loss of independence, idealism, and status. His is one of the best-known attacks, because he went further than the leaders of the bar association movement, suggesting a way that lawyers could act to regain the status they had once enjoyed in the community. Continue working blindly for the big companies, he warned, and you will make money; but you will lose not only public respect but also self-respect—you will lose your soul. Instead of being a cog in a machine that undermines the public weal, become a defender of the public good.
In invoking the notion of a people’s attorney, he also made clear that dealing with the public required a different set of ethical considerations from those needed by a lawyer who spoke for one private client against another. Private clients had specific and legitimate priorities in protecting their property and investments and the return on those investments to shareholders. The public, however, had different priorities. Government is established not to make a profit but to protect its citizens and to provide services unavailable from the private sector. As such, in a conflict between private and public, a lawyer had to give greater weight to the claims of the government. This did not mean that the government would always be right, or that there might not be constitutional or statutory restrictions on the government’s actions. It did mean that in the ethical universe of a lawyer, one always had to treat the public good and the private good differently, something that few lawyers at the time did.
Brandeis himself had already begun to act as a people’s attorney by refusing to accept fees for work done on behalf of the public good. In 1907 he took on a case that would ever after tie that label to him.
IF WE SEE PROGRESSIVISM as a movement to mitigate the harshness of the new industrial regime, then it is easy to see why protective legislation played such an important role in the mood of the time. Men and women who worked in mines, mills, and factories of the new order often worked twelve or more hours a day in dangerous conditions for pitiful wages. Reformers wanted, among other things, to do away with child labor, establish a maximum number of hours one could work during a day and for a minimum amount of money, require effective safety precautions, and provide workmen’s compensation on a broad and uniform basis. Between 1897 and 1916 they achieved nearly all of these goals on the state level, but not without opposition.
The owners of mines and factories naturally wanted to get the greatest amount of labor they could at the cheapest price, but they also objected to the very notion of government interfering with the economy—other than, of course, high tariffs to protect them against foreign competition and laws to prevent workers from organizing into labor unions. The notion of laissez-faire, that government should not be involved in the economy, had its roots in the Jacksonian opposition to government favoritism and had been enshrined as part of the Republican Party ideology after the Civil War. It had also become part of the legal system created by the Supreme Court to protect property rights, primarily through the notion of substantive due process and its companion, freedom of contract. Whatever one might claim about these ideas in the abstract, they had become powerful tools in the hands of conservative judges and lawyers to protect the sanctity of private property.
The prevailing jurisprudential philosophy of the pre–Civil War era has been labeled “instrumentalism,” in which law served as a tool to promote economic growth without implicating governmental regulation. Judges used their common-law authority to create new doctrines that addressed the changing requirements of private business interests, and sought to determine what best served the public interest in a society characterized by constant change. Instrumentalism relied on the flexibility of the common law not only in adapting to new situations but also in taking the facts of those situations into account. It also allowed the states, utilizing their police powers to protect the common welfare, to step in when necessary to limit or even regulate private property. This is the jurisprudence that Louis Brandeis learned at Harvard Law School, and when he proclaimed the benefits of the common law, he meant the ability of judges to recognize facts and, applying them to the case at hand, develop a fair solution to new problems.
But in the years after the Civil War, leaders of the bench, taking their cue from Justice Stephen J. Field, moved toward more formal procedures that limited legislative power and enhanced that of the courts through judicial review. The ability of judges to void federal legislation if it ran counter to a constitutional command had, of course, been a staple of American law since John Marshall’s great opinion in Marbury v. Madison (1803). But the Supreme Court had, before the Civil War, only exercised that power twice. After the war it began to utilize it on a regular basis to strike down efforts by Congress and then state legislatures to regulate economic activity.
The phrase “due process of law” referred to general legal rules and customs accepted as the normative base of the legal system. From its inception, it usually referred to procedural rights, some of which are statutory, some common-law, and some constitutional. For example, the right to trial by jury is a substantive right, but how jurors are chosen, how evidence may be presented, how witnesses are procured, are all procedural. The idea that due process of law could also include substantive rights to protect property appeared in only a few cases before the Civil War, but the theory began to pick up steam in the 1870s and came to be enshrined by the Court in an 1897 case, Allgeyer v. Louisiana. As explicated by Justice Rufus Peckham, substantive due process allowed practically no state interference with private property or with the economy other than absolutely minimal regulation to protect health and to ensure public safety. Men were not only free to choose what business or vocation they would follow but free in that vocation to succeed, to amass property, and to enjoy that property without governmental regulation.
Peckham also married into substantive due process the idea of freedom of contract, which had been developing in state courts since the war. Part of the Republican Party ideology before the war had been the notion of free labor, the right of people to work and to leave jobs, as opposed to slavery. This notion became transposed to a freedom to contract between employer and employee, with its basis in old common-law rubrics such as arm’s-length negotiations—that is, the employer and the employee bargained out the labor contract on a one-to-one basis. Clearly, when a steel mill with hundreds or thousands of employees set wages, it did not do so on a personal basis, but the courts continued to act as if it did, and refused to allow the state to interfere with the labor market. To rationalize this rule, courts held that a workman’s labor constituted his property, and therefore should enjoy the same protection against government interference and regulation as did private property.
These notions quickly gained adherents among conservative lawyers, who used them to defeat efforts by the state to protect workers or to regulate the workplace. At meetings of state and local bar associations, leading business lawyers reinforced the message. “We lawyers,” William Guthrie told his colleagues, “are delegated not merely to defend constitutional guaranties before the courts for individual clients, but to teach people in season and out to value and respect individual liberty and the rights of property.” John F. Dillon gave a lecture to the New York State Bar Association titled “Property—Its Rights and Duties,” and inveighed against the viciousness of such radical measures as the income tax. William Ramsay proudly proclaimed the new dogma to his fellow attorneys: “The right to contract and to be contracted with … is sacred, and lies at the very foundation of the social state.”
And what of the facts, especially the one thing that practically everyone recognized—that industrialization had forever changed the social, political, and economic fabric of the country, not to mention its legal foundations? Facts contradicted the new formalism, they embarrassed the assumptions of conservative advocates of substantive due process and liberty of contract, and so were ignored. Reading some of the state and federal court opinions at this time, one would think that the cases had arisen in the preindustrial age and still relied on the old common-law rules of employment and liability based on a craft shop with a master and one or two apprentices.
To Brandeis this blind refusal to take facts into account when explicating law not only made no sense but went against all of his instincts. In 1891, in one of his first public causes, reform of the liquor lobby, he had lectured the Massachusetts legislature: “No law can be effective which does not take into consideration the conditions of the community for which it is designed.” Two decades later, testifying before a congressional committee, he repeated the lesson: “In all our legislation we have got to base what we do on facts and not on theories.” As Paul Freund noted, Brandeis “developed his larger conception from immersion in the facts of specific cases, in the best tradition of the common law.” Legal education requires “that lawyers should not merely learn rules of law” but also study the “facts, human, industrial, social, to which they are to be applied.” Even after he went onto the bench, Brandeis warned his colleagues that “the logic of words should yield to the logic of realities.” In an interview with a reporter, he declared, “What we must do in America is not to attack our judges, but educate them. All judges should be made to feel, as many already do, that the things needed to protect liberty are radically different from what they were fifty years back.”
THE CAMPAIGN FOR protective legislation, even though it did not have any generals, nonetheless played out in a predictable and rational manner. Given the conservative opposition to any state regulation of the workplace, reformers appealed to the state’s inherent police powers, the authority of any sovereign government to protect the health, safety, and welfare of its citizens. At the end of the nineteenth century, however, American jurisprudence had yet to define the boundaries between laissez-faire, with its opposition to what it saw as market interference, and the scope of the state police powers. On the one hand, an influential conservative law writer, Christopher G. Tiedeman, declared that the proper role of the government consisted of no more “than to provide for the public order and personal security by the prevention and punishment of crimes and trespasses.” And by “no more” he meant just that; Tiedeman opposed any regulatory infringement on the market, even usury laws. At the other end of the spectrum, Oliver Wendell Holmes Jr. declared that the police power “may be put forth in aid of what is sanctioned by usage, or held by the prevailing morality, or strong and preponderant opinion to be greatly and immediately necessary to the public welfare.”
Given this uncertainty, reformers started in an area they knew to be traditionally within the scope of the police power, protection of children. They wanted to do away with child labor, and they accomplished this by a mixture of laws mandating school attendance and banning children below a certain age from working in mines, factories, and mills. These bills met practically no resistance in state courts, and the only one to reach the Supreme Court received unanimous approval.
From there reformers moved to another group of people that the law, at that time, held to be little better than children, namely, women, and also to men working in particularly dangerous environments. One must recall that in the first decade of the twentieth century women still could not vote or serve on juries in most states and, despite the passage of married women’s property laws in the mid-nineteenth century, often found themselves economically under the control of their fathers or husbands. In legal terms, women, like children and mental incompetents, were considered “persons under a disability,” and therefore candidates for protection under the umbrella of state police power. Workers in perilous conditions, such as miners, also fit within traditional assumptions, and as early as 1898 the Supreme Court affirmed a Utah law that established safety standards for workers in smelters and mines where the state could reasonably find the working conditions to be hazardous to their health.
The progression, from children to women to men in hazardous occupations, would then lead to the establishment of working hours for all workers, men and women, as well as laws providing for minimum wages and employers’ liability. Each step would cement the legitimacy of protective legislation for a particular group and theoretically make it easier to bring the next level of worker under the aegis of the police power. Clearly, these efforts, taking place in more than forty states, did not move in lockstep, but in general this pattern existed in most states. State courts, which had the initial review of these laws, for the most part upheld them, although a few notoriously conservative courts, such as in Illinois and New York, were among the last to go along, and then only after a Supreme Court decision had upheld the constitutionality of a particular type of statute. The entire enterprise, however, stood in danger of collapsing when the Supreme Court suddenly struck down a New York law regulating the hours of bakery workers.
The state legislature had reasoned that conditions in bakeries, with the large amount of flour dust in the air, could be hazardous to the health of the men employed there, and surely sick men (who could not afford to take a day off) should not be baking bread. There appear to have been some other considerations as well, including the effort of unionized bakeries to force nonunion shops into working shorter hours and the desire of housing reformers to eliminate bakeries from operating in tenement basements. However true these allegations may have been, a strong case could still be offered for the measure as a health and safety law. The state courts upheld the law at each level of the challenge, but the Supreme Court, by a 5–4 vote, struck it down in Lochner v. New York (1905).
Although the Court had upheld prior pieces of protective legislation, a majority of the justices still strongly believed in liberty of contract as the constitutional norm, and in order for the state to restrict this fundamental right, it had to show convincingly that a health or safety hazard existed. Justice Rufus Peckham brushed away the state’s claims about health and safety and condemned the statute as nothing more than an effort “to regulate the hours of labor between the master and his employees (all being men, sui juris), in a private business, not dangerous to morals or in any real or substantive degree, to the health of the employees.” Peckham conceded that a state could enact legislation to protect the health of workers, even bakers, but to do so it had to show that either the occupation itself or the standard working conditions related to it posed a real danger to worker health. The state had failed to do so. Peckham then posed the question: “Is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the rights of the individual?” Even more worrisome to reformers than the question itself was the tacit assumption that it would be the courts, and not the legislatures, who would answer that question.
The decision evoked powerful dissents from Justices John Marshall Harlan and Oliver Wendell Holmes. Although Harlan accepted the basic argument of freedom of contract, he nonetheless believed the state of New York could reasonably conclude that a relation existed between working conditions in a bakery and the health of the employees. Holmes dissented in a brief statement that soon achieved classic status, for it set forward what would be called “judicial restraint,” a position that would be championed by Brandeis after he took his seat on the bench. “This case is decided upon an economic theory which a large part of the country does not entertain,” Holmes wrote, but “my agreement or disagreement has nothing to do with the right of a majority to embody their opinions into law.” In other words, absent a specific constitutional prohibition, the state had the power to enact legislation it wanted, and the judiciary had no power to pass on its wisdom.
Predictably, conservatives applauded the decision, while the labor press denounced it. Although there have been efforts to rehabilitate the jurisprudential arguments of Peckham, reformers then and later saw the Lochner decision as an appalling example of judges ignoring the Constitution and, instead of deferring to the policy-making authority of elected officials, writing their own prejudices into law. And, despite the prior approval of protective legislation in both federal and state courts, progressives now worried that Lochner, with its harsh call for freedom of contract, would nullify laws already on the books and become a barrier to future protective legislation.
ON LABOR DAY, 4 September 1905, Joe Haselbock, an overseer at the Grand Laundry in Portland, Oregon, required one of the workers, a labor activist named Emma Gotcher, to stay overtime in violation of a 1903 law that, among other things, provided that “no female shall be employed in any mechanical establishment, or factory, or laundry in this State more than 10 hours during any one day,” and which assessed punishments upon those who ignored the law. Gotcher filed a complaint, and two weeks later the state brought criminal charges against the laundry’s owner, Curt Muller. Aware of the Lochner ruling, Muller retained William D. Fenton, an influential corporate attorney in Portland, to defend him. The trial judge, although personally opposed to the law, found Muller guilty of a misdemeanor and fined him $10. The Oregon Supreme Court, while citing Lochner, considered it inapposite, and upheld both the statute and the conviction. Muller appealed to the U.S. Supreme Court, claiming that the law violated the Due Process Clause of the Fourteenth Amendment by abridging the freedom of contract.
The case drew the immediate attention of both conservatives and progressives, because if the high court ruled against Oregon, then all hope of protective legislation would be lost. The ten-hour law struck a core component of the conservative creed, liberty of contract. If people wanted to work twelve, fourteen, or even eighteen hours a day and could find someone willing to hire them, then both parties could “freely” contract such an arrangement. This reasoning may have been true in an earlier and simpler economy, but industrialization had undermined the premises on which it rested—the supposed equality of both contracting parties. A village blacksmith and his assistant might have stood on roughly equal footing, but certainly no parity existed between the U.S. Steel Corporation and any of its thousands of unskilled workers, many of whom could barely speak English. Oregon, in effect, said that if all the parties of a labor contract did not stand equally, then the state under its police power could limit the right to contract in order to protect its citizens. This conservatives could not concede.
The National Consumers League, which had avidly supported the Oregon statute and protective laws in other states, now undertook to defend it and began contacting leading lawyers to see if one would take the case. When representatives of the league approached Joseph H. Choate, a pillar of the New York bar, he dismissed them out of hand, declaring that he could not understand why “a great husky Irish woman should not work in a laundry more than ten hours a day” if she wanted. Choate well understood that if the Court allowed this restriction on liberty to contract to stand, other restrictions—on hours for men, on working conditions, and even on wages—would soon follow. The laissez-faire philosophy demanded that no matter how unequal the game, no interference by the state could be permitted. Thus equality before the law was carried to its logical, yet patently unfair, extreme.
Josephine Goldmark and Florence Kelley of the league then decided to approach Louis Brandeis, whom they had wanted all along, but they had no idea how he would react. “After all,” Goldmark recalled, “he had had no hand in shaping the legal record nor in presenting the defense in state courts.” The decision in Lochner “stood menacingly in our path,” and if he did agree, they only had about a month to prepare the brief. At their meeting on 14 November 1907, Brandeis agreed on two conditions. First, Oregon had to give him full control of the case; he would not serve simply as amicus curiae (friend of the court) for the league. He wanted to be in full control of the strategy, and beyond that he thought it an important element of the defense that he appear as the official representative of the state. Second, the league had to provide him with massive amounts of data on the effects of long working hours on women. He wanted “facts, published by anyone with expert knowledge of industry in its relation to women’s hours of labor, such as factory inspectors, physicians, trades unions, economists, social workers.”
Josephine Goldmark, Louis’s sister-in-law, and National Consumers League official
Brandeis realized that the Oregon statute would not stand a chance in the high court unless he could distinguish it from Lochner, and the only way to do that involved meeting the Court on its own terms. He had spotted a loophole in Peckham’s opinion; the justice noted that protective legislation could be justified under the police power if the state could show proof that the measure directly addressed the health, safety, or welfare of its citizens. New York, according to Peckham, had failed to do so in regard to the bakery law. Brandeis now intended to defend the Oregon law by showing a direct connection between working hours and women’s health, family life, and morals. To do that, he needed a free hand (which Oregon gladly gave him) and data to demonstrate the need for the law (which the league provided). Brandeis also had in mind an earlier Illinois decision on women’s hours legislation, Ritchie v. People (1895), in which the state’s high court had struck down an 1893 law limiting the work of women in factories to eight hours a day. That case, like Lochner, had been decided on the basis of freedom of contract, with the state court casually dismissing the police power argument.
Because of the limited time available to prepare the brief, Brandeis gave his sister-in-law two weeks to get “printed matter sufficiently authoritative to pass muster” and to bring it up to him in Boston. Josephine and the league swung into action, and she hired ten readers to help her. They did their research at Columbia University, the New York Public Library (then known as the Astor), and the Library of Congress. One aide, a young medical student, devoted himself completely to literature on health factors relating to occupation, and he and several of the other assistants soon discovered that the United States could furnish them with only limited data. They found plenty of articles of opinion and descriptions of working conditions, but little in the way of scientific analysis and reports of the effect of long hours on women’s health. So they turned to foreign countries that had long been collecting and publishing these types of data.
Florence Kelley, director of the
National Consumers League,
ca. 1905
Brandeis had earlier written that “a judge is presumed to know the elements of law, but there is no presumption that he knows the facts.” In the Muller brief he set out to make sure that the members of the nation’s highest court would, at the least, have the facts before them. The traditional appellate brief, and the one that is still the norm in many cases, deals entirely with legal principles. Typically, the lawyer states a principle, then any subsidiary rules associated with it, and the cases that support them, and then does the same thing for the other rules of law on which the client is relying. In the response or reply brief, the attorney for the other side rebuts these assertions of the law. In this give-and-take, there is rarely a mention of the litigant, or of the facts surrounding the case. Normally, the trial court is where the facts are determined; appellate courts do not review questions of fact, but deal with whether the trial court made the right choices as to the law. If a case gets to the Supreme Court, the particular details are almost irrelevant, and both liberal and conservative justices agree that that is how it should be.
But what if the relevant facts had not been aired at the trial level? In most instances, a lawyer today would not be allowed to introduce new material on appeal. At the beginning of the twentieth century, however, the rules of what could be presented were somewhat different, and Brandeis gambled that given the opening he saw in Lochner—and the storm of criticism that had greeted that decision—the justices might be open to the type of argument he planned to present.
The brief in Muller v. Oregon ran 113 pages, with only two pages devoted to the law. “The legal principles applicable to this are few,” it began, “and are well established.” These included the right to contract for labor, and here Brandeis cited Lochner. This right, however, remained subject to such constraints as the state might impose on it, but if the state claimed that a restriction arose from a need to protect health or safety, then it had to have “a more direct relation, as a means to an end, and the end itself must be appropriate and legitimate,” and once again he cited Lochner.
Therefore, the validity of the Oregon statute, which the state claimed did have a legitimate purpose—namely, to protect women workers—had to be grounded in fact, and to that end, “the facts of common knowledge will be considered under the following heads: Part I. Legislation (foreign and American) restricting the hours of labor for women. Part II. The world’s experience upon which the legislation limiting the hours of labor for women is based.”
The next hundred-some pages set out laws, factory reports, medical testimony, all revolving around simple facts that even the justices of the nation’s highest court must have known, that women are physically different from men and that they, not men, bear children. The excerpts came from sources as varied as British House of Commons reports on bills to close shops early (1895, 1901); the Maine Bureau of Industrial and Labor Statistics report in which a doctor concluded that “woman is badly constructed for the purpose of standing eight or ten hours upon her feet” (1888); the Journal of the Royal Sanitary Institute (1904); medical textbooks such as The Hygiene, Diseases, and Mortality of Occupations (1892); a report of French district inspectors on the question of night work (1900); reports from various state bureaus charged with gathering industrial statistics; a report of the German Imperial Factory Inspectors (1895); and La ráglementation lágale du travail des femmes et des enfants dans l’industrie italienne.
Brandeis wanted to show, using what he termed “the facts of common knowledge,” that not only did individual women suffer from the effects of long working hours, but because some of these women also bore the children of the next generation, society suffered; the poor health of mothers led to the poor health of their children. The sources cited included Dr. George Newman, Infant Mortality: A Social Problem (1906), in which the London doctor claimed that physical fatigue exerted “a decided effect in the production of premature birth, particularly if these conditions are accompanied by long hours of work.” Also, by describing this material as “common knowledge,” Brandeis wanted to make it easier for the justices to take judicial notice of these facts.
Brandeis then concluded that “in view of the facts above set forth and of legislative action extending over a period of more than sixty years in the leading countries of Europe, and in twenty of our States, it cannot be said that the Legislature of Oregon had no reasonable ground for believing that the public health, safety, or welfare did not require a legal limitation on women’s work in manufacturing and mechanical establishments and laundries to ten hours a day.”
In this brief Brandeis brought together some of the themes we have seen before: the need for facts; education of bench, bar, and public; the relationship of law to the economic, social, and political realities of the day; the need to mitigate some of the harsher aspects of industrialization; and the use of law as an instrument of social policy. In response to the formalism of classical legal thought, the new school of sociological jurisprudence called upon courts to take into account changes that occurred in the economy and society. One of the first great theorists of sociological jurisprudence, Oliver Wendell Holmes Jr., had declared that the life of the law is experience, not logic. Louis Brandeis became the great practitioner of that school of thought, and the Brandeis brief aimed to provide what Holmes deemed necessary for the growth of the law, an awareness of experience. Brandeis, like Holmes, believed that in the great common-law tradition, the exploration of an issue and the understanding of all the facts that surround would lead to the law accommodating itself to change.
While of course he played the role of advocate for Oregon, he also wanted to educate the Court and people who opposed protective legislation. Brandeis no more cared for governmental regulation than did Muller’s attorneys or Joseph Choate. But as a conservative who believed that new times demand accommodation even while holding on to older values, he recognized that the greater the opposition to minimal social progress, through measures such as protective legislation, the greater would be the popular demand for more extreme measures. As counsel to a larger situation, he wanted to advise those who would freeze the status quo that it could not be done. A real need to protect workers existed, and that need would somehow be met. It would be better if men of goodwill cooperated in ameliorating the evils of industrial transition.
Fenton and Henry H. Gilfry, Muller’s attorneys, chose to ignore all but the first three pages of the Brandeis brief and made absolutely no effort to respond to the more than one hundred pages of data that Brandeis claimed justified Oregon in passing its law. About the only reference is a paragraph in which they assert that “the argument based on sex ought not to prevail, because women’s rights are as sacred under the Fourteenth Amendment as are men’s…. Is there any difference between the case of a healthy, adult woman, contracting for service for more than ten hours in a laundry, and that of a man employed as a baker for more than ten hours a day? Certainly conditions are as favorable in a laundry as in a bakery.”
The two sides argued the case before the Supreme Court on 15 January 1908, in the old Senate chambers in the Capitol. Some members of the National Consumers League came down from New York, aware of the revolutionary tactics their lawyer would introduce that day. Brandeis, as Ms. Goldmark described it,
slowly, deliberately, without seeming to refer to a note, built up his case from the particular to the general…. It was the result of intense preparation beforehand, submerging himself first in the source material, he was determining the exclusion or inclusion of detail, the order, the selectiveness, the emphasis which marked his method. Once determined upon, it had all the spontaneity of a great address because he had so mastered the details that they fell into place, as it were, in a consummate whole.
The justices listened carefully, with few interruptions for questions.
A little over five weeks later, on 24 February, the Court unanimously upheld the Oregon statute. Justice David J. Brewer declared that the Court faced only a single question, namely the constitutionality of the Oregon statute. Before addressing that question, however, Brewer noted, “In patent cases counsel are apt to open the argument with a discussion of the state of the art. It may not be amiss, in the present case, before examining the constitutional question, to notice the course of legislation as well as expressions of opinions from other than judicial sources. In the brief filed by Mr. Louis D. Brandeis … is a very copious collection of all these matters.” Anyone in the audience that day would surely have sat up and paid attention at this point, because the Court never referred to counsel by name, much less to any arguments put forward in their briefs.
These materials “may not be, technically speaking, authorities, and in them there is little or no discussion of the constitutional question,” Brewer said, “yet they are significant of a widespread belief that woman’s physical structure, and the functions she performs in consequence thereof, justify special legislation restricting or qualifying the conditions under which she should be permitted to toil.” Although constitutional questions cannot be settled by public opinion, courts can take into account facts relating to women, and since it is clear that there is a consensus among experts that “healthy mothers are essential to vigorous offspring,” the state had a legitimate reason, under its police powers, to enact this legislation. The Court’s decision, Brewer concluded, did not affect the holding in Lochner v. New York, but in this case “rests in the inherent difference between the two sexes, and in the different functions in life which they perform.” Brewer, who favored women’s suffrage, admitted that the Oregon law limited a woman’s contractual rights, but these limitations “are not imposed solely for her benefit, but also largely for the benefit of all.” The Oregon law met the constitutional test.
PORTLAND’S Morning Oregonian blazoned news of the decision with a five-part headline: “STATE MAY LIMIT WOMEN’S WORK,” “OREGON’S TEN-HOUR LAW SUSTAINED,” “WOMEN MUST BE PROTECTED,” “DIFFERENCE BETWEEN SEXES MAKES IT ESSENTIAL,” and “SAFEGUARD HUMAN RACE.” The Chicago Daily Tribune agreed with Justice Brewer that while a woman’s rights, and the right to contract, could not be abridged any more than could a man’s, the fact remains that the two sexes differ and that women need certain levels of protection. Florence Kelley picked up on Brandeis’s theme and predicted that the way would now be open for additional protective legislation, since in any court test the state had merely to show a clear relation between the statute and health. Josephine Goldmark exalted that “a movement to extend and strengthen women’s hour legislation spread over the country.”
Eventually, Muller became a landmark decision, not only for its holding, but for the brief that Louis Brandeis filed. Known immediately as a “Brandeis brief,” it altered the way that lawyers approached defense of public matters. There is always a tension between private rights, such as property and liberty to contract, and public authority, in the form of the police power. Today, when dealing with laws of economic regulation, the Court has adopted a “rational basis” test, meaning that if the legislature had a rational reason to enact the law, and if no constitutional prohibition existed, then the courts would defer, as Holmes had demanded in his Lochner dissent, to the wisdom of the legislature and not attempt to impose their own judgment. But when the issue is not clear, or when matters of individual rights rather than those of property are involved, lawyers have the responsibility to show the courts what the facts are surrounding the controversy and why they are important to the legal decision. For example, the brief filed by the NAACP in the original segregation cases, Brown v. Board of Education (1954), is very short on legal precedent—because very little existed—but replete with materials relating to the harm done by segregation to the minds and hearts of black children. The briefs filed by lawyers for retired generals, corporate executives, and others on the practical dimensions of affirmative action played a role in the Supreme Court’s decision approving a race-conscious acceptance plan at the University of Michigan Law School.
One thing that often gets lost in the attention paid to the innovation of the Brandeis brief is that it, and the decision in the case, represented a victory for a lawyer. In Muller, indeed in all the cases in which Brandeis acted for the public interest, he saw himself not as a crusading reformer but as an attorney upholding the best practices and traditions of the American bar. While the Brandeis brief provided the tool to get facts before a court, by itself it would not have won a single case. The brief, no matter how well crafted, needed a great attorney to make it work.
Edward McClennen, Brandeis’s law partner, believed that this aspect of Muller was often overlooked, and that if one wanted to use the case as a teaching tool, the point would be that it represented the finest example of a lawyer’s work. It is true, McClennen noted, that the cause had a strong appeal to Brandeis, as did the people who invited him to be their champion. But “the impelling cause of his taking the case up was that in the state of the decisions he saw grave danger that a judicial error might be made if the case were presented in the routine manner, and that therefore he ought to do what he could to secure the right decision.” Roscoe Pound, the dean of Harvard Law School, made a similar observation during the nomination fight. Brandeis’s friends, Pound wrote, had made a great mistake in urging as his chief qualification his reform views. What matters, Pound averred, and “what is not generally known is that Mr. Brandeis is in very truth a very great lawyer.” In looking at the brief in Muller, Pound claimed that beyond the advocacy of social legislation, one had to note the “breadth of perception and remarkable legal insight which enabled him to perceive the proper mode of presenting such a question.”
In general, the concept of the Brandeis brief, that is, the use of non-traditional and nonlegal materials to uphold a particular view, has received widespread approval. With the exception of those judges and scholars who take an extremely narrow view of what constitutional adjudication is about, in both the courts and the academy there is agreement that in those cases where looking at prior legal rules does not really inform us about the importance of cases, courts benefit from this additional information. A court that sustains the validity of a statute, Paul Freund noted, “does so more confidently and more comfortably if some factual foundation has been established for the validity of the law.”
But Brandeis himself believed that while such material might be of assistance to a judge in understanding a statute, in fact the court should not even have to consider the material, since it ought to defer to the wisdom of the legislature exercising its authority. Several years later, when Brandeis was defending an Oregon minimum-wage law, a member of the Court asked him during oral argument whether his brief, which contained all the data supporting minimum-wage legislation, also included data opposing it. Brandeis answered:
I conceive it to be absolutely immaterial what may be said against such laws. Each one of these statements contained in the brief … might upon further investigation be found to be erroneous, each conclusion of fact may be found afterwards to be unsound—and yet the constitutionality of the act would not be affected thereby. This court is not burdened with the duty of passing upon the disputed question whether the legislature of Oregon was wise or unwise, or probably wise or unwise, in enacting this law. The question is merely whether you can see that the legislators had no ground on which they could, as reasonable men, deem this legislation appropriate to abolish or mitigate the evils believed to exist or apprehended. If you cannot find that, the law must stand.
In other words, except in occasional cases, there should be no need for a Brandeis brief, because courts, exercising judicial restraint, ought not to be second-guessing the legislatures.
A more serious, although somewhat ahistorical, argument is that many of the “facts” cited in the brief have, over the years, turned out to be inaccurate or misleading. A close reading of the factual portions, consisting of excerpts from contemporary authorities or public agencies, makes them “considerably less compelling than traditional accounts would have us believe.” One of the leading critics of the Muller opinion and of the Brandeis brief, Judith A. Baer, attacked the facts Brandeis used as not being scientific. There were no controls or consideration of independent variables. Much of the evidence in the brief could have applied to overworked men, and she questioned the expertise of the authorities cited.
Brandeis constructed his argument taking from his materials only those parts that bolstered his argument, which, of course, any debater does; one does not lead with material opposed to one’s argument. The problem is not so much that some allegations, such as a relationship between long workdays and alcoholism or between exhaustion and premature births, have proven more complex or less persuasive as that Brandeis and Goldmark did not have the benefit of scientific studies that would meet modern standards. The types of statistical controls that Baer alleges are missing had not yet been invented, and it flies in the face of history to attack someone for failing to use materials that did not yet exist. They worked with what they had, and when Brandeis claimed that the brief presented the “facts of common knowledge,” these were indeed the facts as known at that time.
The brief in 1908 utilized what people in that year believed to be “facts,” part of the progressive era’s faith in scientific investigation. Moreover, whatever defects they may have had as social science, the Brandeis materials showed that the Oregon legislature had reason to act as it did, and that was all that Brandeis had to prove. The belief in how women differed from men, and how stress and work affected their reproductive roles, may be suspect now, in the light of more advanced research and better health care, but in 1908 the idea that long work by mothers could adversely affect future births seemed scientific to contemporaries, and therefore valid. As for the fact that women differed from men, if nothing else that was indeed “common knowledge.” As Brandeis later told his law clerk, the brief should have been titled “What Every Fool Knows,” and it did little more than tell the justices what they already knew, but in a way they could use to uphold the Oregon law.
FEMINIST SCHOLARS in the 1970s and 1980s, however, leveled a far more serious charge against Brandeis, Muller, and the Brandeis brief, and it is every bit as ahistorical as the attack on his materials. Their claim is that the entire argument that Brandeis put forth, and that the Court accepted, rested on the assumption that women were inferior to men and therefore needed special protection. Instead of liberating women, Muller carried on the legal tradition that saw women as little better than children. In this attack, Justice Brewer comes off as the chief villain, because his opinion is in fact overtly sexist. Brandeis presented a number of positions on which Brewer could have based an opinion upholding the Oregon law, and the justice chose those that emphasized the immutable differences between men and women. Brewer’s talk of women as the mothers of the race harked back to the opinion of Justice Joseph P. Bradley in Bradwell v. Illinois (1873), in which the Court had held that states could deny women the opportunity to practice law, since they were a gentler sex and the rough brutalities of legal practice would unfit them for their proper roles as wives and mothers. Brewer may have seized on this aspect because it allowed him to uphold the law without retreating from Lochner.
The Court, according to Nancy Erickson, could have decided Muller even without the Brandeis brief, since liberty of contract had been sex-based since its inception, and by 1908 the Court could have found sufficient legal precedent to uphold women-only hours law. This, however, ignores the lingering shadow of Lochner. Today we know that courts in the progressive era upheld far more acts of protective legislation than they struck down, but looking at the situation in 1908, progressives could not know whether Lochner constituted an aberration or a predictor of the fate that all protective legislation would meet in the courts. Moreover, although the Lochner doctrine appeared to go into retreat, it did not die, and would come roaring back in the 1920s. Not until the New Deal would reformers be able to put through legislation that protected women and men equally from long hours and inadequate pay.
It is also important to note that at the time most women favored protective legislation. Women constituted the bulk of the National Consumers League directors and staff, and in every state that enacted such laws, women could be found in the front ranks of their advocates. Although a small minority of equal rights suffragists condemned Muller at the time, Alice Stone Blackwell, a leader of the fight for women’s vote and editor of the Woman’s Journal, wrote that she could not see any inconsistency between Brewer’s opinion and the struggle for enfranchisement. Where, she asked, “is the inconsistency in a man’s believing that women should be protected against excessive and inhuman overwork, and at the same time believing that they should be protected against taxation without representation”?
Was Louis Brandeis, despite the fact that he had become a supporter of women’s suffrage, a sexist? Are the Brandeis brief and the Brewer opinion antifeminist? By today’s standards they no doubt are, and as the drive for women’s equality has gained strength in the last four decades, the brief’s arguments and the decision appear anachronistic. One, however, has to judge Brandeis and Brewer not in the light of current conditions but in the context of the culture and economy at the start of the twentieth century. They did in fact believe that women needed to be protected, and that while some women had to work outside the home, a woman’s proper sphere centered on home and hearth. Not only did they believe that, but so, too, did a majority of women at the time. In that milieu, the Brandeis argument and the Court decision did not appear discriminatory. One should also add that Brandeis and Goldmark believed just as fervently in protective legislation for men. While gathering material for the Muller brief, Goldmark collected a great deal of information about the effects of long hours on men’s health and welfare. In 1912 the Russell Sage Foundation published a huge compendium of this material titled Fatigue and Efficiency that addressed not only the needs of women that had been involved in Muller but the far larger issue of the effect of long hours and stress on all workers.
Many years later, with the passage of Title VII of the 1964 Civil Rights Act, the implementation of Equal Employment Opportunity Commission guidelines, and other antidiscrimination laws, states found gender-based laws discriminatory and began to repeal them. State and federal courts also backed away, until finally, in UAW v. Johnson Controls (1991), Justice Harry Blackmun rejected the Muller rationale completely. Concern for women’s childbearing potential, he wrote, had long been an excuse for denying women equal opportunity. Neither the courts, the legislature, nor the employer could make decisions for women between home and work, and about the type of work women could do. Such choices are for women to make.
THE SUCCESS of the Brandeis brief led the National Consumers League to defend other protective laws in the Court and encouraged more jurisdictions to enact such legislation. Between 1908 and 1917, nineteen states and the District of Columbia passed women’s hours laws, while twenty states that already had them on the books extended their protection to women in additional fields and/or lowered the maximum number of hours a woman could work in a day. The league also used the decision in the case, as well as reprints of the Brandeis brief, in a publicity campaign to support protective legislation. When Illinois, whose state supreme court had struck down its first women’s hour law, reenacted a less stringent version of it, the league came to its defense and working with Brandeis produced a six-hundred-page brief. Louis Brandeis argued the case in Springfield, and he believed that the league’s publicity had made the Illinois court more amenable to his argument. He correctly predicted that the Illinois Supreme Court, eager to overcome some “foolish decisions” in the past, would uphold the law in Ritchie v. Wayman (1910). The following year, at the invitation of the state’s attorney general, Brandeis successfully defended an Ohio hours law for women. This success led to a string of cases in other states, and while Brandeis did not have the time to argue each one of them personally, he continued to advise Florence Kelley and Josephine Goldmark on strategy and on the organization and content of the briefs. When a challenge rose to a New York State law banning night work for women, the New York attorney general prepared a brief in defense of the law and sent it over to the National Consumers League for comment. Brandeis and Goldmark added four hundred pages of factual material. In 1913, Oregon enacted a ten-hour limit for all industrial workers, with an additional three hours allowable at a pay rate of time and a half. Brandeis and Goldmark put together a brief that ran 1,021 pages and that utilized much of the work Goldmark had done in preparing Fatigue and Efficiency.
By 1914, it appeared that the progressive agenda regarding protective legislation would soon be completed. States had passed, and courts had approved, the abolishment of child labor, factory safety laws, and limitations on the hours of work for both men and women, and some states had initiated workers’ compensation plans. As some conservatives had feared, Muller had been an “opening wedge” in the assault on liberty of contract, and they braced as reformers sought the passage of minimum-wage laws. The state dictating what an employer had to pay a worker struck at the very heart not only of freedom of contract but of the idea of a free market. Such legislation, charged Rome G. Brown, “savors of the division of property between those who have and those who have not, and the leveling of fortunes by division under government supervision.” Brown aimed his remarks at a 1913 Oregon law establishing minimum wages. Although Brandeis and the league leadership had urged the state to apply the law to all workers, the legislature chose to cover only women. Once again Brandeis and his sister-in-law began putting together material, and in December 1914 the Court scheduled three days for oral argument.
We have an eyewitness account of Brandeis in oral argument in that case, and if perhaps Goldmark’s recollection of his performance in Muller is a bit colored by distance and family affection, neither charge can be leveled against Judge William Hitz of the District of Columbia Supreme Court, a former trial lawyer himself. He had come over to the Supreme Court that day specifically to hear the Oregon case argued, and as he wrote to his friend Felix Frankfurter:
I have just heard Mr. Brandeis make one of the greatest arguments I have ever listened to, and I have heard many great arguments…. The reception which he wrested from that citadel of the past was very moving and impressive to one who knows the Court. Holmes is the only one among them who has any of the light of the morning left, but even he joined in bombarding the deaf and dumb man who spoke before Brandeis. When Brandeis began to speak, the Court showed all the inertia and elemental hostility which Courts cherish for a new thought, or a new right, or even a new remedy for an old wrong, but he visibly lifted all this burden, and without orationizing or chewing of the rag he reached them all and held even [Mahlon] Pitney quiet.
He not only reached the Court, but he dwarfed the Court, because it was clear that here stood a man who knew infinitely more, and who cared infinitely more, for the vital daily rights of the other people than the men who sat there sworn to protect them. It was so clear that something had happened in the Court today that even Charles Henry Butler saw it and he stopped me afterwards on the coldest corner in town to say that no man this winter had received such close attention from the Court as Brandeis got today, while one of the oldest members of the Clerk’s office remarked to me that “that fellow Brandeez has got the impudence of the Devil to bring his socialism into the Supreme Court.”
Another person in the courtroom that day, Charles Warren, also went away impressed. The future constitutional historian, then an assistant attorney general in the Wilson administration and a frequent observer of oral argument, told a reporter that it was one of the most effective pleas ever heard in the Court, and it was as logical and powerful as it was eloquent. The Court had extended the allotted time for each side from one hour to ninety minutes, but when Brandeis’s time had expired, Chief Justice Edward Douglass White said, “Mr. Brandeis, your time is up but we will consider that the clock has stopped and you may continue.” The clerk of the Court told Warren later that he could not recall that ever being done before by a chief justice.
A few weeks later Brandeis argued his last case before the Supreme Court, defending a California eight-hour workday for women, which included certain exemptions, notably for registered nurses. Opponents attacked the measure, not on the grounds of the eight-hour limit, since after Muller that would have been impossible, but rather on the grounds that the exemptions constituted an arbitrary and unlawful exercise of the police power. Brandeis argued that the legislature had the authority to define the public good and, in doing so, could make reasonable exceptions to general rules in order to promote the public welfare. The unique nature of nurses’ work clearly made this exemption reasonable. The Court accepted the argument and unanimously upheld the law.
The decision in the California case came down five weeks after the Court heard oral argument, but the justices could not make up their minds about the Oregon law, no matter how impressed they may have been with Brandeis’s persuasive powers. When he learned about the California decision, he told Al that “the Court is having some trouble with the [Oregon] Minimum Wage Case.” In fact, the justices let it sit for eighteen months, then restored it to the docket shortly after Brandeis joined the Court, and heard it reargued on January 1917. With Brandeis recusing himself because of his previous involvement in the case, the Court split 4–4, thus leaving in place, at least temporarily, the Oregon court decision upholding the law.
THE DEFENSE of protective legislation constitutes an important and enduring part of Louis Brandeis’s legacy as a reformer. Regardless of how contemporary feminists view the hazards of gendered protective legislation, Brandeis provided a device by which lawyers could force courts, at the very least, to be aware of the relevant facts in a case. It would not work every time, and conservative justices could, when they had the votes, brush fact-laden briefs aside. But it could also give a willing court the rationale to create new doctrine in the absence of clear legislative intent or relevant law, as in Brown v. Board of Education. Brandeis himself considered his fight for protective legislation an important battle; in the midst of the nomination fight, he took time to answer a college student who needed information on the eight-hour day for a school debate, referring him to the National Consumers League and the material he and Josephine Goldmark had produced.
The call to public service resonated then among idealistic lawyers, and continues to do so today. While we will occasionally refer to a public-spirited lawyer taking on big interests as a people’s attorney, that sobriquet will always and uniquely belong to Louis Brandeis.