Nicole Tian - 2022 Near Scholar

2021-22 JOHN NEAR GRANT Recipient Shelter or Cage?: How the Brandeis Brief Shaped Progressive Legal Methods and Women’s Rights Nicole Tian

Shelter or Cage?: How the Brandeis Brief Shaped Progressive Legal Methods and Women’s Rights

Nicole Tian 2022 Near Scholar Mentors: Ms. Carol Green and Ms. Amy Pelman April 13, 2022

Tian 2 Justice Ruth Bader Ginsburg announced on June 26, 1996 to a courthouse waiting on the decision of United States v. Virginia Military Institute: “State actors may not close entrance gates based on fixed notions concerning their roles and abilities of males and females . . . the violation is the categorical exclusion of women from an extraordinary education leadership development opportunity afforded men.” 1 A historically male-only college, VMI faced charges of unconstitutionality from the United States government, upon which it proposed plans for a corresponding women-only institution. Overturning the rulings in lower courts, the Supreme Court asserted that VMI violated the Equal Protection Clause of the Fourteenth Amendment in its proposed separate academies due to a lack of explanation in excluding women from its leadership tutelage.2 Eighty-eight years prior in the same courtroom, Louis D. Brandeis, then a practicing lawyer eight years shy of joining the men on the bench, evoked the same words of the Constitution to discourage the engagement of men and women in equal spheres. 3 On September 4, 1905, Portland’s Grand Laundry Company, owned by Curt Muller, ran business as usual. Whirring industrial washing machines dipped sheets into barrels of water, girls smoothed out household linen in wringers, and women ironed collars and folded clothing. Amid the din labored sixteen-year-old Emma Gotcher. She had been at work for over ten hours, urged on by the pace of the machines and Grand Laundry overseer Joe Haselbock.4 His demand for overtime hours might have started as a simple order to one of many employees; perhaps it was

1

United State v. Virginia Opinion Announcement, audio, Oyez, June 26, 1996, accessed January 3, 2022,

2

United State v. Virginia, No. 94-1941, slip op. at 534.

3

Curt Muller v. State of Oregon, No. 107, slip op. at 208 U.S. 422 (Feb. 24, 1908). Accessed January 2, 2022.

4

Quinn Spencer, "Emma Gotcher: Fighter for Labor Rights," Metro, last modified February 17, 2021, accessed January 2, 2022.

Tian 3 due to the occasion of Labor Day, or perhaps because Gotcher was a member of the Shirtwaist and Laundryworkers’ Union (in which her husband played a leading role). Regardless of Haselbock’s intentions, his simple violation of a 1903 Oregon Session Law that limited a laundrywoman’s working hours to ten per day spun into a landmark labor case costing Muller far more than just the few extra hours Gotcher remained working at the building at the Seventeenth and Quimby streets.5 At the turn of the twentieth century, American society confronted the strains of industrialization on preexisting structures of authority. Rapid urbanization created political machines and exacerbated the power dynamics between employee and employer. Along with the development of social reform groups and workers unions came a shift in the courts. While nineteenth-century judges prioritized legal formalism, a philosophy based on precedent rather than reacting to social reality, Progressive Era legal scholars turned toward a new judging method proposed by law professor Roscoe Pound. Pound’s invention—“sociological jurisprudence”—posited that the law should be shaped for the benefit of communities. This new legal theory responded to the shifting social dynamics of the time, stressing law as an establishment influenced by other institutions rather than a standalone sector. 6 In Muller v.

Oregon (1908), a groundbreaking case in which the Supreme Court upheld an Oregon protective law that restricted women’s maximum working hours to ten hours per day and exercised novel

5

Florence Kelley, "Oregon's Labor Law for Working Women," The State (Columbia, SC), April 19, 1908, 18, accessed February 3, 2022; "Shooting in Portland: S.J. Donahue Shoots Alexander Orth, Then Kills Himself," The Morning Astorian (Astoria, OR), March 2, 1905, 1, accessed February 3, 2022; Curt Muller v. State of Oregon, No. 107, slip op. at 208.

6

Roscoe Pound, "The Need of a Sociological Jurisprudence," The Green Bag 19 (August 1907): 14, accessed January 2, 2022.

Tian 4 legal methods through the Brandeis Brief, sociological jurisprudence evolved into practice. 7 Compiled by women reformers from the National Consumers’ League, the 113-page document was composed almost entirely of extralegal evidence rather than the traditional legal argument.

Primarily compiled by Josephine Goldmark and Florence Kelley, the brief detailed the impacts of the law to the judge and jury in Muller.8 Although Progressive activists previously believed that courts should minimize interference in social legislation, Muller turned the tide. While the Supreme Court decision in favor of the Oregon protective laws opened the door to protection of women across different employment fields, this protection came at the cost of separating women as a special class that required state protection. In the following Bunting v. Oregon and Adkins cases, lawyers employed a Brandeis-style brief that exhaustively documented the ills of long hours on workers.9 By harkening back to Muller, which narrowed down legal protection to women, future cases found themselves debating over gender rights instead of labor legislation.

During the Progressive Era, the Brandeis Brief pioneered sociological jurisprudence through novel legal methods that inspired the argumentation used in future rulings on protective law, but the success of these cases remained limited by the brief's narrow legal argument that restricted freedom of contract for laundry women.

7

"Muller v. Oregon." Oyez. Accessed January 11, 2022.

8

Nancy Levit, The Gender Line: Men, Women, and the Law (New York.: New York University Press, 1998), 67.

9

Ruth Bader Ginsburg, "Muller v. Oregon: One Hundred Years Later," lecture presented at Willamette University College of Law, Salem, OR, September 12, 2008, Willamette, last modified March 30, 2009, accessed January 1, 2022.

Tian 5 Early Twentieth-Century Contract Law Muller v. Oregon toed a fragile balance of female agency and overwork, with Muller’s defense arguing in favor of gender equality in negotiating labor contracts. His attorney, William Fenton, declared the Oregon law unconstitutional and attempted to reverse the decision in lower circuits on grounds that “women, whether married or single, have equal contractual and personal rights with men . . . she may make contracts and incur liabilities, and the same may be enforced against her, the same as if she were a feme sole.” 10 The issue at debate was the Due Process Clause of the Fourteenth Amendment, which theoretically guaranteed workers “the freedom of contract” or of negotiating labor contracts with employers. With contract law not clearly defined in a constitutional capacity, freedom of contract began with the intent of granting employees and employers the right to negotiate without interference from state actors.11 Section 10, Article 1 of the Constitution, while not clearly defining contracts for private enterprise, notes that “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.” 12 Only decades later, Ogden v. Saunders (1827), in which the defendant declared bankruptcy under a New York law enacted before his accepting a contract, ruled that prior laws hold binding power over existing contracts. This case restricted the

10

Curt Muller v. State of Oregon, No. 107, slip op. at 208.

11

Bernstein, David Eliot, Freedom of Contract (August 19, 2008). Liberty of Contract, in Encyclopedia of the Supreme Court of the United States (David S. Tanenhaus ed. 2008), George Mason Law & Economics Research Paper No. 08-51.

12

U.S. Const. art. I § 10, cl. 1. Accessed January 1, 2022.

Tian 6 scope of the Obligation of Contracts Clause to pertain to contracts already signed rather than granting general liberty to future contracts as well. 13 During the Progressive Era, the Fourteenth Amendment expanded beyond its initial purpose as one of the Reconstruction Amendments to lay the foundation for judicial review of industrial labor cases. In the Slaughterhouse Cases (1872), a group of local butchers in New Orleans argued that a Louisiana law granting a charter to a single slaughterhouse would deprive them of their Fourteenth Amendment rights to their liberty of their profession. 14 Although the Supreme Court ruled in favor of Louisiana, Justice Stephen Johnson Field’s dissenting opinion noted that the Fourteenth Amendment “does not attempt to confer any new privileges or immunities upon citizens, or to enumerate or define those already existing. It assumes that there are such privileges and immunities which belong of right to citizens as such, and ordains that they shall not be abridged by State legislation.” 15 By expanding the scope of the amendment past the extension of legal rights to Black people, the Slaughterhouse Cases introduced the Fourteenth Amendment Due Process Clause as protecting personal liberty against state legislation. As a result, Progressive reformers latched onto the Due Process Clause in the first section of the amendment, which acknowledged the right to “to make and enforce contracts, to sue, be parties and give evidence, to inherit, purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of

13

Ogden v. Saunders (Mar. 10, 1827). Accessed February 21, 2022. https://www.oyez.org/cases/17891850/25us213.

14

Slaughterhouse Cases (Apr. 14, 1873). Accessed February 21, 2022. https://www.oyez.org/cases/18501900/83us36.

15

Slaughterhouse Cases, slip op. at 96.

Tian 7 person and property.”16 The Fourteenth Amendment clearly stated a general freedom of contract that formed the basis of debate in Muller. Whether a laundry woman’s freedom of contract could be restricted based on public health factors took center stage in the Brandeis Brief.

The judicial sector played a crucial role in exercising state police power, or the ability to regulate its citizens for public welfare through legislative means and therefore establish loopholes to freedom of contract.17 Allgeyer v. Louisiana (1897) determined that the court held the rights to determine restrictions on freedom of contract based on the specifics of each individual case, indicating a conservative approach to allowing states to restrict labor rights guaranteed through the Due Process Clause of the Fourteenth Amendment. 18 Progressive reformers believed that police power could be exercised more cautiously for the benefit of specific groups who lacked protection in the workplace, such as women.19 Justice Oliver Wendell Holmes, Jr. echoed this opinion in Noble State Bank v. Haskell (1911), noting that “It may be said in a general way that the police power extends to all the great public needs . . . It 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.”20 As seen from Holmes’ observation, the courts exercised almost unchallenged power

16

17

18

U.S. Const. amend. XIV. Accessed February 21, 2022.

"Police Powers," in Legal Information Institute (Cornell Law School), accessed April 10, 2022.

Allgeyer v. Louisiana, No. 446, (Mar. 1, 1897). Accessed February 21, 2022..

19

Melvin I. Urofsky, "State Courts and Protective Legislation during the Progressive Era: A Reevaluation," The Journal of American History 72, no. 1 (1985): 66.

20

Noble State Bank v. Haskell, No. 71, slip op. at 111.

Tian 8 over restricting freedom of contract by establishing hours laws under the justification of public health.

A product of his era, Brandeis believed that a lawyer’s role was to act on behalf of the public, shunning corporate practice to take on cases without a fee. By directly representing Oregon in Muller instead of submitting an amicus curiae, Brandeis took control of the narrative of Oregon’s argument.21 Known as the people’s lawyer, he embodied the community focus of sociological jurisprudence. In a letter to Boston attorney William H. Dunbar, he wrote that a lawyer’s profession encompasses understanding how legal decisions affect people’s daily lives and urged him to “to apply from your own store of human experience the defects in the clients’ statements and to probe the correctness of those statements in the light of your knowledge.” 22 Like the Progressive reformers, Brandeis viewed the law as a tool to advance a client’s purposes, in this case those of labor reforms, and lawyers as the vessel for which to do so.

Background of the Progressive Era Labor Movement Despite making crucial contributions to the early twentieth-century workforce, women lacked freedom of contract and authority to negotiate for greater job opportunities. Gender regulated upward mobility, wages, skill level, and job security, creating lackluster career prospects regardless of Constitutional contract liberty. 23 Women encompassed a far greater role outside of the workforce and in the domestic sphere as mothers tasked with educating new generations. Early American sociologist Annie Marion MacLean described this phenomenon,

21

Woloch, Muller v. Oregon, 27.

22

Philippa Strum, "The Living Law," in Brandeis on Democracy (Lawrence, KS: University Press of Kansas, 1995), 49.

23

Leslie Woodcock Tentler, Wage-Earning Women: Industrial Work and Family Life in the United States, 1900-1930 (New York: Oxford University Press, 1979), 14, 27.

Tian 9 writing that “the prime function of the woman must always be perpetuating the race . . . the woman is more to society in dollars and cents as the mother of healthy children than as the swiftest labeler of cans.”24 Unlike their male peers, women balanced social and economic responsibilities in the eyes of maternalist thinkers. The transition from country to city preserved the concepts of Republican motherhood, which viewed women as responsible for maintaining the virtue and morality of the household and raising young men to exercise their future rights as full citizens.25 The idea of women uniting the private and the public by cultivating civic duties in the family eased women into the public sphere during the Progressive Era through the framework of maternalism. All women were believed to bring feminine tendencies to their roles as citizens, and the family unit functioned within the grander scale of American industrial progress with designated gender roles. While men contributed living wages and therefore were afforded greater job opportunities, women and children occupied the same economic standing as dependents.26 Within the scope of maternalism, Progressive Era reformers pursued various means of assisting single working mothers, one of the most committed groups being Jane Addams and the Hull House, founded in 1899.27 The women of the Chicago settlement house advocated for mothers’ pensions, with member Julia Lanthrop arguing that “pensioning the working mother . . . that’s what the state must do, instead of violating nature by separating her from her child because she is

24

Annie Marion MacLean, Wage-Earning Women (New York: Macmillan Company, 1910), 178, accessed January 3, 2022.

25

Sarah Robbins, "'The Future Good and Great of Our Land': Republican Mothers, Female Authors, and Domesticated Literacy in Antebellum New England," The New England Quarterly 75, no. 4 (2002): 565.

Jessica Toft and Laura S. Abrams, "Progressive Maternalists and the Citizenship Status of Low‐Income Single Mothers," Social Service Review 78, no. 3 (2004): 449-50.

26

27

"About Jane Addams and Hull-House," Hull House Museum, accessed April 7, 2022.

Tian 10 too pitiably helpless to care for it properly.” 28 The Hull House Progressive reformers worked at introducing gendered welfare policies, with mothers’ pensions inherently carrying the expectation of childcare as opposed to a raise in wages to improve worker livelihood.

On a snowy morning in late December of 1891, Florence Kelley began a new life at the Hull House after leaving an abusive husband in New York City. Earlier the same day, she had dropped off her three young children at the Women’s Christian Temperance Union headquarters.

In this crowded urban neighborhood alongside immigrants from various European nationalities and in the company of the Hull House women, Kelley dove into “pressure-group politics,” a strategy that campaigned on behalf of women and children as an opening wedge to all labor reform.29 She described the Chicago environment as one “surrounded in every direction by home-work carried on under the sweating system . . . the children fell asleep at their work in their homes”30 Sweatshop labor consumed Kelley’s reform goals as women were more likely to garner sympathies toward labor reform. American Federation Labor leader Samuel Gompers provided one example of male patronage to their causes, noting in a 1914 testimony before a national commission that “The AF of L is in favor of fixing the maximum number of hours of work for children, minors, and women. It does not favor a legal limit of the workday for adult men workers.”31 Women therefore occupied a unique dichotomy of protected and unprotected,

28

Julia Lathrop, "Pension the Mother," The Journal of Education 72, nos. 14 (1800) (1910): 376.

29

"Arrival at Hullhouse," The Life and Times of Florence Kelley, accessed February 21, 2022, 51-53.

30

Florence Kelley, The Autobiography of Florence Kelley: Notes of Sixty Years, ed. Kathryn Kish Sklar (Charles H. Kerr Publishing Company, 1986), 80-81, accessed January 3, 2022.

31

Woloch, Muller v. Oregon, 11.

Tian 11 excluded from labor unions such as the AFL but also garnering legislative sympathies due to these limitations.

The chartering of the National Consumers League in 1899 expanded Kelley’s efforts to ensure marketplace safety for workers and individuals with purchasing power on a national scale.

This tireless undertaking would last into the present and earned her Goldmark’s praise as a “voice and an embodiment” of the “pure spirit of justice towards all mankind.” 32 The National Consumers League joined a flourishing number of other consumers’ leagues across the country during the end of the nineteenth century that originally set out to defend young women who worked as store clerks without overtime pay and for low wages.33 Training other women in the path of reform, the National Consumers League ignited the passions of a young Josephine Goldmark, who rose to become the NCL’s publications secretary and the chair of the NCL Committee on the Legal Defense of Labor Laws.34 Kelley believed that the law specifically failed to reflect the rapid developments in industrial production, positing in Some Ethical Gains Through Legislation that “the judicial mind has not kept pace with the strides of industrial development…What then can be done for the weakest and most defenseless bread-winners in the state,” referring to child and women laborers.35 Viewing the courts as a tool for restricting police powers, the National Consumers League chose to take the legal path.

32

Goldmark, Fatigue and Efficiency, ix.

33

Goldmark, Impatient Crusader, 51-53; Maud Nathan, The Story of an Epoch-Making Movement (New York: Doubleday, Page, 1926), 59.

“Josephine Goldmark,” Notable American Women (Cambridge: Harvard University Press, 1971), 2:6061.

34

35

Florence Kelley, Some Ethical Gains through Legislation (London: Forgotten Books, 2012), 142.

Tian 12 Reformers posited valid concerns about laundry work. In a 1910 government study of laundries in major cities commissioned by the United States Department of Labor, researchers found that work days were as long as 14 hours, and women dominated the industry with 80.1 percent of employees being female.36 Out of the 112 employees at a Chicago laundry, the top earning worker was paid 30 cents an hour during a busy season, or about $8.80 today. For a younger employer such as Gotcher, she might have earned half of that wage despite an over 50hour work week.37 Moreover, several hundred women were often employed in a single laundry, and while those of higher quality were equipped with proper ventilation and lighting, many lacked sanitation and utilized heavy machinery.38 Developments in technology increased the literal pace of production, with sewing machines operating twelve needles at once at a rate of 4,000 stitches each minute.39 Making less than a living wage and prone to being switched out for new workers, women in the laundry industry lacked the means to support themselves.

Evolution from Legal Formalism to Sociological Jurisprudence During the late nineteenth century, courtrooms operated on the belief of legal formalism, which posited that the judicial system operated separately from political and social spheres.

Constructionist judges employed this legal philosophy and interpreted the words of the Constitution within the context of its initial intent, defending employers’ property rights. 40 The 36

U.S. Department of Labor, Report on Condition of Woman and Child Wage-Earners in the United States: Volume XII Employment of Women in Laundries, S. Rep. No. 61, 2d Sess. (June 15, 1910).

Accessed January 3, 2022.

37

Condition of Woman and Child Wage-Earners in the United States.

38

Condition.

39

Goldmark, Fatigue and Efficiency, 54.

40

G. Edward White, "From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America," Virginia Law Review 58, no. 6 (1972): 1000.

Tian 13 rise of laissez-faire capitalism during the Industrial Revolution and Gilded Age shifted regulation of industry away from the government and toward the market, generating the belief that the economic sector could retain self-stability with minimal interference.41 As other scientific and economic fields looked to define their principles through concepts such as social Darwinism, judges also sought to set judicial truths. In United States v. E.C. Knight Company (1895), the Supreme Court ruled that American Sugar’s manufacturing monopoly did not extend to commerce and therefore did not violate the Sherman Antitrust Act. 42 Setting the absolute distinction between commerce and manufacturing allowed American Sugar to operate even while producing over 98 percent of the country’s refined sugar.43 The court would make a similar distinction in Muller, challenging the difference between the strain of general factory labor and that specifically of laundry women. Progressivism directly challenged the morals of formalism, arguing that laissez-faire capitalism perpetuated poverty, rewarding corporations while oppressing the working class. These reformers in the early twentieth century embraced dynamism, shunning absolute truths for constant progress. Pound argued that modern law students should understand “not only what the courts decide and the principles by which they decide, but quite as much the circumstances and conditions, social and economic, to which these principles are to be applied; he should know the state of popular thought and feeling which makes the environment in which the principles must operate in practice.” 44 Strict constructionism

41

White, 1002.

42

United States v. E.C. Knight Company, No. 675, slip op. at 156 U.S. 9 (Oct. 24, 1895). Accessed February 21, 2022.

43

44

United States v. E.C. Knight Company, No. 675, slip op. at 156.

Roscoe Pound, "The Need of a Sociological Jurisprudence," The Green Bag 19 (August 1907): 14, accessed January 2, 2022.

Tian 14 grew obsolete as judges applied the words of the Constitution generously as seen broached in the Slaughterhouse Cases. Activist groups viewed law as a means to an end of balancing the needs of various groups, and adapting to external pressures defined the early-twentieth-century judicial evolution.45 Yet the question of how law would incorporate real world experiences was left unanswered, as judges such as Oliver Wendell Holmes Jr., who accepted the concept of sociological jurisprudence, still resisted incorporating empirical evidence while making decisions. Sociological jurisprudence differed in application from Pound’s theory. Whereas Justice Holmes accepted that the law should evolve to match societal purposes, he rejected taking into account empirical data such as that seen in the Brandeis Brief. 46 Although judging mindsets shifted to allow reasons beyond preceding cases to factor into jurisprudence, the acceptance of empirical data in lawsuits depended on the subjectivity of individual judges. Due to the debate over accepting externalities into legal thought, Muller marked the success of reform and validated sociological data as legal proof.47 Muller’s success largely depended on the shift from legal formalism to sociological jurisprudence. In Ritchie v. People just thirteen years prior, the Illinois Supreme Court ruled that a protective law Kelley coauthored that restricted women to eight hours of work per day broke the Fourteenth Amendment by employing gendered class discrimination and denying women the freedom of contract.48 This ruling created a blowback to Kelley’s work in pushing forth pressure-

45

John W. Johnson, "Adaptive Jurisprudence: Some Dimensions of Early Twentieth-Century American Legal Culture," The Historian 40, no. 1 (1977): 19.

46

Verna C. Corgan, Controversy, Courts, and Community: The Rhetoric of Judge Miles Welton Lord (Greenwood Press, 1995), 12, accessed January 2, 2022.

47

Josephine Clara Goldmark, Fatigue and Efficiency: A Study in Industry (New York: Russell Sage Foundation, 1912), 242, accessed January 2, 2022.

48

Woloch, Muller v. Oregon, 15.

Tian 15 group policies as a gateway to universal worker protection, but also provided a valuable lesson in tactics of proving the necessity of public health. The majority opinion delivered by Justice Benjamin Magruder stated that “there is nothing in the title of the Act of 1893 to indicate that it is a sanitary measure . . . it is not the nature of the things done, but the sex of the persons doing them, which is made the basis of the claim that the Act is a measure for the promotion of the public health.”49 Magruder’s opinion revealed that class discrimination and freedom of contract provided valid refutations to protective laws and like Muller’s defense, argued for gender equality in law. Yet despite the de jure acknowledgement of women’s employment equality, de facto opportunities for women to advance economically remained lacking. Kelley would seek to resolve Magruder’s objections in Muller by proving that restricting freedom of contract could be justified as a sanitary measure instead of an unlawful exercise of police power. If successful, Muller’s federal precedent would override Ritchie in state courts.

Three years after Ritchie, the Supreme Court affirmed an eight-hour workday for men in Holden v. Hardy (1898) that further weakened the validity of Kelley’s pressure-group approach.

Utah petitioner Holden requested miner John Anderson to work for ten hours in an underground mine, arguing in his defense that the Utah protective law was a case of class legislation denying him his liberties as an American citizen. 50 Arguing that the environment of mining work was “deprived of fresh air and sunlight” along with “the influence of noxious gases,” the Supreme Court seemed to affirm a commitment to public health, indicating that the ruling in Ritchie came about due to a concern of unequal contract liberties rather than using the tagline of women’s

49

William E. Ritchie v. The People of the State of Illinois, No. 39870, slip op. at 155 Ill. 111 (7th Cir. Mar. 14, 1895). Accessed January 3, 2022 50

Holden v. Hardy, No. 261, 264, slip op. at 169 U.S. 367 (Feb. 28, 1898). Accessed February 21, 2022.

Tian 16 rights to ignore protective laws.51 Holden simultaneously validated and invalidated Kelley’s pressure-group policies. It revealed that legal protection equally extended to men, lessening the need for women and children as a gateway group to advance labor measures. Curiously, while Ritchie ruled that a maximum-hours law for women counted as class discrimination, the Supreme Court approved of the same concept when applied to men’s labor. At the same time, Holden daringly proposed the notion that a whole is “the sum of all its parts,” and therefore “when the individual health, safety, and welfare are sacrificed or neglected, the state must suffer.” 52 By associating private interests with civic duty, justices elevated the cause of labor reform to lofty ideals of citizenship. State police power could bolster personal liberty.

A Brandeis-style brief was first attempted in Lochner v. New York (1905), in which the court ruled that the Bakeshop Act, which limited bakers to working ten hours a day or sixty hours a week, violated the freedom of contract embedded in the Due Process Clause of the Fourteenth Amendment.53 The majority opinion, authored by Justice Rufus W. Peckham, noted that the New York law “does not affect any other portion of the public . . . clean and wholesome bread does not depend upon whether the baker works but ten hours per day or only sixty hours a week. The limitation of the hours of labor does not come within the police power on that ground.”54 Although Lochner acknowledged the dangerous labor conditions of the baking profession, the ruling set a precedent that the law should not interfere with labor reform on a

51

Holden v. Hardy, No. 261, 264, slip op. at 169 U.S. 396.

52

Holden, 397.

53

"Lochner v. New York." Oyez. Accessed January 11, 2022.

54

Joseph Lochner v. People of the State of New York, No. 292, slip op. at 198 U.S. 57 (Apr. 17, 1905).

Accessed January 3, 2022.

Tian 17 federal level.55 In addition, New York failed to prove how the lack of a limit on working hours would result in a threat to public health drastic enough to merit legislation. To the justices, baking amounted to no more danger than other crafts. Justice Holmes pushed even further in his dissent, arguing that the Fourteenth Amendment’s protection of liberty inherently voided the power of legislation to intervene in the market.56 Despite Lochner’s failure in opening a gateway for further labor reform, the case validated the use of extra-legal evidence, warming Progressive activists to the idea of using judicial review to pass social legislation. 57 Lochner shifted the focus of judicial review from property rights, which would have protected the bakeshop owner’s rights to sell food products, to the question of what working conditions merit lawful protection.

Since Lochner failed to prove that bakers should be singled out as protected “wards of the state,” Brandeis and his sister-in-law and activist Josephine Goldmark set out to prove laundry women were a protected class. After meeting resistance from multiple previous lawyers who rejected the case as an invalid attempt at enacting social policy, the NCL requested Brandeis to take on the case.58 On November 14, 1907, Kelley and Goldmark found their candidate.

Describing the meeting with Brandeis as one that “gave a revolutionary new direction to judicial thinking, indeed to the judicial process itself,” Goldmark and Brandeis chose the option of trying to prove the validity of sociological evidence as a means to justify legal ends. In a later reflection on the turning point of Muller, she noted that “the point at issue had in fact wholly shifted from

55

Joseph Lochner v. People of the State of New York, No. 292, slip op. at 198 U.S. 66.

56

Joseph Lochner, 76.

57

Noga Morag-Levine, "Facts, Formalism, and the Brandeis Brief: The Origins of a Myth," abstract, University of Illinois Law Review 2013, no. 1: 6.

58

Woloch, Muller v. Oregon, 25.

Tian 18 relation between the fourteenth amendment and the police the state's abstract right to restrict individual rights, to the practical necessity for every such restriction.” 59 Goldmark assumed that sociological jurisprudence must be taken into account while considering the effects of law, therefore providing the “facts” to the judge and jury in Muller, claiming that the Supreme Court decision in favor of the Oregon protective laws opened the door to protection of women across different employment fields. Up until Muller, the court had yet to concede a protective law on the basis of sex, a pathway that Goldmark dignified by questioning: “These restrictions upon men’s working hours have never interfered with their value or dignity as citizens. Why then, should similar restrictions—wider and more inclusive for women—operate against their dignity as citizens?”60 Muller’s legal argument posited that the state may restrict the right to liberty in negotiating labor contracts, and “the validity of the Oregon statute must therefore be sustained unless the court can find that there is no fair ground, reasonable in and of itself, to say that there is material danger to the public health (or safety), or to the health (or safety) of the employees (or to the general welfare), if the hours of labor are not curtailed.” 61 Kelley documented the damaging health effects of industrial work on young women and girls as not only physically depriving but also economically taxing, writing that “the loss of time involved in recovery from tuberculosis is accompanied by expenses to the patient, her family, and the community which might well all be spared, were the young worker permitted to escape this enforced idleness by

59

Goldmark, Fatigue and Efficiency, 242.

60

Goldmark, 255.

61

Louis D. Brandeis, Curt Muller, Plaintiff in Error v. State of Oregon. Brief for Defendant in Error, 10, October 1907, accessed January 11, 2022.

Tian 19 enjoying in due time a rational measure of daily rest and freedom.”62 Arguing that workers deserve a right to leisure, Kelley formulated another reason to exercise police power upon freedom of contract. The lack of safe working conditions in urban work environments, like that which Kelley witnessed firsthand at Hull House, perpetuated economic struggles in the surrounding neighborhoods. Kelley relates private and public health to leisure and work time, arguing that cutting back hours improves individual well-being and increases public health as a result. Goldmark used the innovative legal method of incorporating evidence from Lochner in the Brandeis Brief to appeal to a maternalistic framework of public health.

In part one of the Brandeis Brief, titled “Specific Evil Effects on Childbirth and Female Functions,” Oregon related prolonged hours to detrimental effects on women’s health, citing instances of female laborers unable to have children and linking those results to factory work. 63 An assortment of government reports and testimonies from physicians attested to the same patterns and perhaps provided some insight into the lives of working mothers. A report of the British Chief Inspector of Factories and Workshops by a certified surgeon noted that the twelvehour work days took their toll on whether a mother was available to care for her children, claiming that extensive work hours resulted in the malnourishment and even death of infants. 64 Cases rely on a curious mix of fact and fiction, with one certified testimony commenting on the weakness of women’s knees, reducing them to a sexual object, and another claiming that women’s blood contains more water compared to men, causing poorer health. 65 The debatable

62

Florence Kelley, Some Ethical Gains through Legislation (London: Forgotten Books, 2012), 110-11.

63

Brandeis, Curt Muller, 36.

64

Brandeis, 36.

65

Brandeis, 21.

Tian 20 truth in these statements provides validity to Holmes’ earlier rejection of empirical evidence at play in legal cases. In practice, sociological jurisprudence reflected not only the consequences of industrialization but also the gender norms of the time, a warning to future cases that judicial opinion could vary based on popular imagination. As the law reflected the developments in social institutions, there still lacked a safeguard against prejudice that resided in gender norms.

Sociological jurisprudence reflected the times but did not innovate ideas of womanhood with fewer economic restrictions.

Despite the novelty of the legal method, the Brandeis Brief remained rooted in centuries of maternalism and Republican motherhood, especially exemplified by the section “Bad Effect of Long Hours on Morals.” 66 With the same gravitas given to infant malnourishment, the Brandeis Brief made a commentary upon the susceptibility of overworked women to alcoholism.

In a testimony from the United States Senate Committee, a cotton mill spinner noted that “the hard, slavish work is driving those girls into the saloons…good, respectable girls, but they come out so tired and exhausted…Drinking is most prevalent among working people where the hours of labor are long.”67 The need to refer to these workers as “good, respectable girls” emphasized women’s inherent moral righteousness and the villainy of industry. Associating overwork with alcoholism, jadedness, and general “low standard of regularity, sobriety, and morality,” Muller warned against the erosion of women as pillars of piety. 68 As early as the reform movements in the 1840s, women helmed the temperance movement. In The Drunkard’s Progress illustrated by Nathaniel Currier, a bridge of male figures slowly deteriorates from “Step 1. Glass with a

66

Brandeis, 109.

67

Brandeis, 45.

68

Brandeis, 46.

Tian 21 Friend” to “Step 9. Death by Suicide” (see Fig. 1). His own immoral behavior overshadows the lives of his child and wife, who weep in the aftermath. The physical dangers of laundry work grow pale against the moral welfare of the nation and raises the question: If women, known to be at the head of the temperance movement, could fall into a pattern of alcoholism, who could offer salvation for the American imagination?

Figure 1. Nathaniel Currier’s “The Drunkard’s Progress: From the First Glass to the Grave (1845)” Muller’s decision recognized women and mothers as fully overlapping Venn diagrams, thus driving the argument that regulating their hours of labor falls under state police power. 69 Contrary to Lochner’s decision, which lacks the mention of the filed evidence brief, Justice David J. Brewer’s majority opinion alluded to the Brandeis Brief and conceded that cases of social legislation require examining “expressions of opinion from other than judicial sources.” 70

69

Curt Muller v. State of Oregon, No. 107, slip op. at 208.

70

Curt Muller v. State of Oregon, No. 107, slip op. at 208.

Tian 22 The phrasing indicated a break from the pattern of reliance on precedent as seen in legal formalism and marked the first time a Supreme Court decision detailed the role of statistical evidence in swaying decision. As future Supreme Court Justice Felix Frankfurter noted, “For the first time the arguments and briefs breathed the air of reality.” 71 The loftiness of judicial processes transitioned to a careful examination of the impacts of the law, triggering a following stream of cases that modeled their litigation methods after Brandeis’ example. 72 Protective Laws and Sociological Evidence The Brandeis Brief influenced a rising generation of lawyers to consider including extralegal evidence in their own arguments on behalf of protective legislation. At the time the court announced Muller’s decision, Felix Frankfurter was a twenty-six-year-old Harvard law student. Later as a Harvard law professor, he would remark that during the nineteenth century, “the courts decided these issues on a priori theories, on abstract assumptions, because scientific data were not available or at least had not been made available for the use of courts...it became increasingly demonstrable what the effect of modern industry on human beings was.” 73 Muller sparked in him a recognition of the power of combining law and science to lend authority to judgement. In the following years after Muller, a slew of other cases pushed forth protective

71

Felix Frankfurter, "Hours of Labor and Realism in Constitutional Law," Harvard Law Review 29, no. 4 (1916): 364.

72

WC Ritchie and Co v. Wayman (Apr. 21, 1910); Hawley v. Walker, No. 217, slip op. at 232 U.S. 718 (Feb. 24, 1914). Accessed April 12, 2022.; Stettler v. O'Hara (Oregon Supreme Court Mar. 17, 1914).

Accessed April 12, 2022; People v. Schweiner Press (New York Court of Appeals Mar. 26, 1915).

Accessed April 12, 2022..

73

Frankfurter, "Hours of Labor," 364.

Tian 23 legislation on the basis of gender.74 Yet the first attempts to expand favorable judicial review of protective laws to all workers would indicate the frailty of selective freedom of contract. Bunting v. Oregon (1917), one of Frankfurter’s initial cases regarding social legislation, traced back to Oregon with the signing of a 1913 law that expanded the maximum-hours statute in Muller to men as well as women.75 With Brandeis’ recent nomination to the Supreme Court, Frankfurter assumed the vocation with all the Good Samaritan praise of the former.

Franklin Bunting, a mill operator from Lake County, Oregon, appealed to the Supreme Court that the ten-hour law violated both the Oregon and United States constitutions. The case concerned the Progressive framework which established the Fourteenth Amendment as a guarantee of freedom of contract. Backed by Attorney General George M. Brown, Bunting now argued that the protective law violated this liberty.76 Deeply influenced by Brandeis’ legal tactics, Frankfurter partnered with Goldmark to produce an exhaustive Brandeis-style brief comprising over 1000 pages. He argued that the “question, therefore, is no longer can the state regulate the hours of labor in modern industry, but what evils are manifest, what tendencies are disclosed, that present a reasonable field for legislative repression; what remedies are available that present a reasonable field for legislative encouragement.”77 Bunting concerned itself with expanding protection for maximum-working laws. Past cases debated over whether the court had

74

Ruth Bader Ginsburg, "From Muller v. Oregon to the Family Medical Leave Act: Protective Legislation Then and Now," speech presented at Rutgers-Newark Law School, Newark, February 13, 2009, Supreme Court of the United States, accessed February 21, 2022.

75

Bunting v. Oregon, No. 38, slip op. at 243 U.S. 426 (Apr. 9, 1917). Accessed February 21, 2022.

76

"Ten-Hour Law Brief Finished," The Oregon Daily Journal (Portland), March 28, 1916, 16, accessed February 16, 2022.

77

Felix Frankfurter and Josephine Goldmark, The Case for the Shorter Work Day, xi, October 1915, accessed January 11, 2022.

Tian 24 the right to regulate labor, and the gateway decision in Muller answered in affirmation. As a result, courts were granted the power to interfere with the workplace and shifted to a focus on how labor could be regulated.

The evidence used in Frankfurter and Goldmark’s “The Case for the Shorter Work Day,” used in defense of Oregon’s maximum hours law, lacked the maternalistic cherry picking used in Muller. Instead, the Bunting brief adapts the Brandeis style for objective purposes. Whereas the Brandeis Brief categorized evidence based on section such as “Physical Differences Between Men and Women,” “Specific Evil Effects on Women and Childbirth,” and “The Effect of Women’s Overwork on Future Generations,” Frankfurter’s Bunting brief remarks on general welfare and industry health-hazards.78 It offers straight analysis of data instead of piecing together reports on women’s health and explores mortality rates from various diseases in United States cities. Consider an excerpt from the Bunting brief: From this compilation of figures, rather formal in nature, we are brought face to face with the fact that the mortality rate from these general causes in the City of New York is far higher during the thirty years of greatest industrial productivity than they are for the registration area as a whole . . . New York City is suffering a disproportionate loss of human life from these causes during the ages thirty to sixty years79 In contrast, the Brandeis Brief compiles information from written reports instead of statistical figures: In hand work and house work there is a certain freedom of doing or of leaving undone.

Mill (1:. e. machine) work must be done as if by clockwork…The people are tied as it

78

Brandeis, Curt Muller, 18, 36, 51; Frankfurter et al., State Minimum, 193, 428.

79

Frankfurter and Goldmark, The Case, 21.

Tian 25 were to machinery moving at a great speed in certain operations; again it has been alleged that the state of the atmosphere is very unhealthy, and the temperature at a great height 80 Without the burden of overturning Lochner’s argument that the state failed to provide valid justifications for why certain workers should receive unique restrictions, Bunting indicated a monumental shift in the customs for protective laws. The final court decision, which Brandeis recused himself from, also leaves out any mention of Lochner, indicating an erosion of the restraints on police power over industrial regulation.81 In fact, the court noted in Bunting that “[in] view of the well-known fact that the custom in our industries does not sanction a longer service than ten hours per day, it cannot be held as a matter of law that the legislative requirement is unreasonable or arbitrary as to hours of labor.” 82 The acceptance of extralegal evidence in court cases indicated a thorough transition to sociological jurisprudence. Muller’s decision had displayed a more conservative approach to state police power, noting that “the right of a State to regulate the working hours of women rests on the police power and the right to preserve the health of the women of the State, and is not affected by other laws of the State granting or denying to women the same rights as to contract and the elective franchise as are enjoyed by men.”83 Without even a mention of Bunting’s property rights to the production of his mills, the court justified Oregon’s maximum hours laws for both men and women. Yet this establishment of protective laws for both genders would later act as poor defense in cases of

80

Brandeis, Curt Muller, 24.

81

Bunting v. Oregon, No. 38, slip op. at 243.

82

Page 243 U. S. 438

83

Curt Muller v. State of Oregon, No. 107, slip op. at 208.

Tian 26 minimum wage laws. Having already opened protective laws to both genders, the court would more closely scrutinize the wedge method in cases of establishing a minimum wage.

Although Bunting indicated an opportunity for the success of Kelley’s plan to use pressure-group policies as a wedge into greater labor regulation, Adkins v. Children’s Hospital indicated that freedom of contract should be restricted to hours and not wage regulation. The District of Columbia Children’s Hospital sought an injunction for a 1918 Congressional Minimum Wage Act that established a minimum wage for women. 84 Rather than setting a specific monetary value for minimum wage, the act simply required employers to provide enough to meet the cost of living in order to “maintain their morals and protect their morals.”85Adkins signaled a transition of freedom of contract from the Fourteenth to the Fifth Amendment.86 The question was no longer one of whether the Fourteenth Amendment Due Process Clause merited minimum wage laws but whether the Fifth Amendment provided sufficient evidence that minimum wage pertained to the core of a labor contract. The term due process appears twice in the Constitution in both the Fifth and Fourteenth amendments contained within the phrase no individual shall be “deprived of life, liberty or property without due process of law.”87 Originally established as a measure of protection for civilians against federal abuses of power, the Due Process Clause limited the extent to which an individual could be punished in criminal law. Field’s dissenting opinion in the Slaughterhouse Cases offered substantive

84

Adkins v. Children's Hospital, No. 795, 796, slip op. at 261 U.S. 525 (Apr. 9, 1923). Accessed January 3, 2022.

85

Adkins v. Children's Hospital, No. 795, 796, slip op. at 261.

86

Adkins, No. 795, 796, slip op. at 261.

87

U.S. Const. art. V. Accessed February 21, 2022.; U.S. Const. amend. XIV. Accessed February 21, 2022.

Tian 27 advancements toward justifying rights not specifically mentioned in the Constitution. 88 Adkins challenged the borders of what rights could be “deprived.” While Bunting and Muller pertained to hours laws, Adkins attempted to use the same legal method to justify that minimum wages also merited greater police power.

The shift from maximum-hours laws to minimum wage cut to the core of the Brandeis Brief method. Whereas longer hours could reasonably be linked to health detriments, critics of minimum wage laws questioned how a single wage standard could suffice across multiple professions.89 Sociological jurisprudence in the 1920s gave way to legal realism, creating an environment for social policy to guide judicial decisions.90 As leading legal realist scholar Herman Oliphant noted in his seminal 1928 essay “A Return to the Stare Decisis,” “Great cargoes of continental speculations were imported and thrown in to make the dikes of the old abstractions hold. A whole new breed of law books sprang up,— encyclopediæ and corpora juris hastily made by stringing together judicial generalities usually innocuous and frequently inconsistent and by peppering them with cast citations either to the number of recent minimum or with the abundance of an undiscriminated deluge.”91 Oliphant expressed the sentiment that the American legal system was returning to a previous era with emphasis on legal precedent, or “stare decisis,” leaving little room for analyzing cases on an individual basis. He argued that in order for legal precedent to be validated again, the courts

88

Peter Strauss, "Due Process," Legal Information Institute, accessed February 21, 2022.

89

Urofsky, "State Courts," 80.

90

"Legal realism," Legal Information Institute, accessed February 21, 2022.

91

Herman Oliphant, "A Return to Stare Decisis," American Bar Association Journal 14, no. 2 (1928): 75.

Tian 28 should take into account norms of the industries it made decisions upon.92 These theoretical norms became reality in Adkins v. Children’s Hospital, which raised the question of whether minimum wage regulation could be standardized across different industries.

The Children's Hospital of in the District of Columbia employed a large number of women across its facilities. 93 It provided nurses’ training, offering residential slots for its nursing school and added wings for private patient housing and increased patient capacity in the ten years before the case. Founded in 1871, the hospital sat at the intersection of the Twelfth to Thirteenth and V to W Streets, with patients treated in the newer additions to the original threestory building.94 The Children’s Hospital filed the first injunction against the new minimum wage standards, claiming that it violated previously negotiated contracts with its female employees. The second appellee worked as an elevator operator in the Congress Hall Hotel Company with a salary of $35 a month and two meals provided each day.95 The Adkins decision deviates from the Muller precedent decided just fifteen years prior, noting that the Oregon statute was validated under the acknowledgement that women’s physiques differ from men in maternal function and thus necessitate protection from long hours of labor. Justice George Sutherland delivered the majority opinion, claiming that the fifteen-year period since Muller merited “revolutionary” developments such that “the ancient inequality of the sexes, otherwise than physical…has continued ‘with diminishing intensity.’” In fact, the court argued that “these

92

Brian Leiter, "Legal Realism and Legal Doctrine," University of Pennsylvania Law Review 163, no. 7 (2015): 1977, http://www.jstor.org.puffin.harker.org/stable/24752811.

93

Adkins v. Children's Hospital, No. 795, 796, slip op. at 261.

94

The Bee (Danville, VA), July 13, 1922, 11, accessed April 10, 2022; "New Wing to Help in Child's Hospital," Evening Star (Washington, DC), May 10, 1925, 21, accessed April 10, 2022.

95

Adkins v. Children's Hospital, No. 261 U.S. 525, slip op. at 261.

Tian 29 differences have now come almost, if not quite, to the vanishing point…we cannot accept the doctrine that women of mature age, sui juris, require or may be subjected to restrictions upon their liberty of contract which could not lawfully be imposed in the case of men under similar circumstances.”96 Sutherland attempted to advance an admirable view of workplace equality, arguing that the protections afforded in Muller discriminate against women workers in Adkins.

Frankfurter’s work shifted entirely away from the NCL’s previous emphasis on the dependent mother after the ratification of the Nineteenth Amendment. The evidence used in following briefs aligned with social mores of the time that requested higher wages due to women’s own economic power. In the presented briefs, women assumed the roles of breadwinners and providers.97 These compilations of data of women’s wages from that time period suggest that establishing minimum wage standards catered to basic human needs. With the help of NCL Research Secretary Mary W. Dewson, Frankfurter oversaw two briefs, both of which used extralegal evidence to argue for minimum wage laws for women: an amici curiae brief for Adkins and another on behalf of various women’s societies and workers unions in Gainer v. Dohrman, a minimum wage case dismissed by the Supreme Court of California. 98 In California, Dewson realized that far more women were affected by the minimum wage law that had lasted ten years in California.99 Titled “State Minimum Wage Laws in Practice,” Frankfurter 96

Adkins, No. 261 U.S. 525, slip op. at 261.

97

Woloch, Muller v. Oregon, 53.

98

Felix Frankfurter et al., In the Supreme Court of the state of California, Helen Gainer, plaintiff and appellant, vs. A.B.C. Dohrman, Katherine Philips Edson, Walter G. Mathewson, Henry W. Louis and Paul A. Sinsheimer, as members of and constituting the Industrial Welfare Commission of the state of California, defendants and respondents : brief on behalf of amici curiae supporting respondents' contention., Making of Modern Law: Trials, 1600-1926 (New York, 1924).

99

Susan Ware, "'When Red Roses Are Green': The National Consumers' League," in Partner and I: Molly Dewson, Feminism, and New Deal Politics (New Haven, CT: Yale University Press, 1987), 102, https://www-jstor-org.puffin.harker.org/stable/j.ctt32bdqc.

Tian 30 hoped to prove that minimum wage laws fell under the rights granted by freedom of contract. 100 In its only citation to Muller, the brief explained that every case in which the Due Process Clause of the Fourteenth Amendment is called into question relies on a compilation of facts to support a law.

Aside from this reference to the Brandeis Brief, the California brief Dewson worked to compile moved away from content organized by specific ills to women despite the D.C. minimum wage law pertaining solely to female workers.101 In reports from the Oregon Industrial Welfare Commission conducted during World War I, an adult woman in Oregon living on a single wage spends $4.54 on food, $1.74 on rent, $3.02 on clothes, and $2.32 on other expenses, resulting in a total of $11.61 per week.102 The California Industrial Welfare Commission produced similar studies in order to determine the salary for a California minimum wage law, investigating basic weekly expenses to deduce a living wage of $10.00.103 A biennial report from the California Bureau of Labor Statistics found that out of 37,204 employed women, 14,811 earned under $9.00 each week.104 With data driven by objective reports on the economic situation instead of by general observations of health detriments, Frankfurter’s work pushed the court to reconsider the boundary of police power and the extent to which the state was willing to provide for workers’ livelihood.

100

Felix Frankfurter et al., State Minimum Wage Laws in Practice (New York, 1924), 18, accessed January 2, 2022.

101

Frankfurter et al., State Minimum, 2-3.

102

Industrial Welfare Commission of Oregon, Third Biennial Report of the Industrial Welfare Commission, report no. IWC-3 1917-18, 12, accessed February 26, 2022.

103

Frankfurter et al., State Minimum, 19.

104

Bureau of Labor Statistics, Fifteenth Biennial Report, 458.

Tian 31 The Adkins brief, also drafted by Dewson, reinvented the legal methods developed by Brandeis by compiling evidence to advance the concept of a modern woman that developed along with the suffrage movement and passage of the Nineteenth Amendment. As historian Nancy Woloch writes, the “woman worker of the Adkins brief was disadvantaged by social and economic circumstances, not by innate, sex-linked attributes.”105 In an investigation of the cost of living in the District of Columbia, the Federal Bureau of Labor Statistics found that the cost of living increased by 30 percent in just a year between 1916 and 1917. Wages inflated at a lower rate, and out of 600 women employed in various professions, 53 percent earned under $8 a week and 63 percent under $10 a week. Dewson brings in new evidence regarding financially independent womanhood, noting that over half of the surveyed women supported themselves, and 21 percent also supported other individuals.106 By focusing on the practical purposes of the minimum wage and investigating women struggling to stay above the poverty line, Dewson enumerated their agency as individual contributors to the American economy. Women whose identities once revolved around the conversation of motherhood were portrayed as the citizens of the republic they were tasked to raise sons for.

Distancing itself from the maternalism of Muller, the Adkins decision nevertheless remained bound by its complacency in failing to recognize the still-existent economic disadvantages of womanhood. The Supreme Court ruled minimum wage unconstitutional and an obstruction to freedom of contract, indicating that the class legislation which had singled-out women and opened gateways to labor reform in Muller led to downfall in Adkins. Protective

105

106

Woloch, Muller v. Oregon, 53.

Felix Frankfurter and Mary W. Dewson, comps., District of Columbia Minimum Wage Cases, 688, October 1922, accessed April 10, 2022.

Tian 32 hours legislation did not ensure equality in job market opportunities or livable wages, yet the court noted that the brief was only “mildly persuasive.”107 In addition, the court ruled minimum wage as independent of the purpose of a labor contract, a tentative yet weighty power requiring the judiciary to broach new grounds that lacked a clear approach. Muller temporarily protected women against the dangers of industrial labor requirements but also fashioned an illusion of equality that warned reformers against the “wedge method.” Adkins posited that women needed to prove relative weakness and struggle to merit minimum wage protection. Since the idea of a modern woman emphasized her self-sufficiency, the court refused to recognize still-existent economic differences between genders. Although Adkins escaped the burden of maternalism, which judged women based on their values as mothers, its advocacy on behalf of independent female workers divided protective laws into a black and white issue with complete equality on one side and dependency on the other.

The conservative approach of Adkins posed a blowback to sociological jurisprudence and legal realism. Whereas proponents of the legal realism movement warned against reliance on precedence, Adkins had seemingly jumped back to Lochner era justifications against worker protection, once again arguing that the D.C. minimum wage law failed to justify why women as a group deserved legal assurance of a livable wage.108 Like in Peckham’s majority opinion in Lochner, the Supreme Court once again ruled that women, like the bakers, did not require protection to perform their professions. As women gained power in the American imagination, the judiciary lost concern for the feminine susceptibility to immoral industrial influences argued

107

108

Adkins v. Children's Hospital, No. 795, 796, slip op. at 261.

Ruth Bader Ginsburg, "From Muller v. Oregon to the Family Medical Leave Act: Protective Legislation Then and Now," speech presented at Rutgers-Newark Law School, Newark, February 13, 2009, Supreme Court of the United States, accessed February 21, 2022.

Tian 33 in the Brandeis Brief. Justice Holmes was one of many who expressed doubt of Sutherland’s opinion of gender equality, writing in his dissent that “Muller v. Oregon, I take it, is as good law today as it was in 1908. It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account . . . [This statute] simply forbids employment at rates below those fixed as the minimum requirement of health and right living.” 109 Holmes argued from a framework of legal realism, noting that Adkins displays a reversal of the principles that established protective laws in Muller just fifteen years prior. He criticized the difference between de jure passing of the Nineteenth Amendment and the de facto changes toward gender differences, pushing back against Sutherland’s narrative of imagined equality. Justice William Howard Taft dissented regarding the state’s regulation of police power, observing that “legislatures, in limiting freedom of contract between employee and employer by a minimum wage, proceed on the assumption that employees, in the class receiving least pay, are not upon a full level of equality of choice with their employer, and, in their necessitous circumstances, are prone to accept pretty much anything that is offered.”110 Recognizing the power imbalance between employers and employees, Taft argued for a liberal approach to the freedom of contract, a freedom often existent only in theory.111 Reformers sympathized with Holmes’ viewpoint, chief among them NCL General Secretary Florence Kelley.112 Ten days after the announcement of the Adkins decision, she

109

Adkins v. Children's Hospital, No. 795, 796, slip op. at 261.

110

Adkins, No. 795, 796, slip op. at 261.

111

Woloch, Muller v. Oregon, 13.

112

Social Welfare Legislation," The Recorder (San Francisco), March 23, 1925, 5, accessed April 10, 2022.

Tian 34 organized a meeting to discuss methods to open up courtrooms to the prospects of minimum wage regulation. Yet the compounded efforts of individuals such as Felix Frankfurter, Roscoe Pound, and Kelley herself failed to produce results for the rest of the decade. 113 Adkins had defeated a crucial NCL strategy to push forth pressure-group politics, arguing that genderspecific laws were obsolete to the time period. (See Fig. 2)

Figure 2: National Consumers' League. "Report of a conference held in New York City on April 20th, in response to the Supreme Court case decided April 9, 1923."Cartoon. Harvard Library.

113

Goldmark, Impatient Crusader, 175-78.

Tian 35 As the NCL struggled to defend working conditions for girls and women, another challenge rose in the emergence of the National Women’s Party (NWP) arguing for equality feminism.114 Founded in 1912 by suffragists Lucy Burns and Alice Paul, the NWP involved themselves in more radical and militant forms of advocacy, indicating an approach to achieving social reform separate from the NCL’s relationship to the courts. 115 Nearing the end of the Progressive Era, women reformers split into two camps divided by perspectives on protective legislation. On one hand, Kelley pointed out that an equal rights amendment required consent from male labor organizations to ensure the passage of similar legislation, therefore reducing its feasibility. In response, Alice Paul argued that protective laws restricted women’s opportunities.

With the combination of men’s labor unions unwilling to back protective legislation and the NWP’s criticisms of inequality as a result of class legislation, the women’s movement fractured after Adkins.116 Adkins not only weakened the validity of minimum wage as part of freedom of contract but also invalidated gendered legislation.

The actual Equal Rights Amendment campaign would continue until it was passed by the Senate in 1972, by which time Adkins had been overturned decades after the heyday of the Progressive reformers in West Coast Hotel Co. v. Parrish (1937).117 Five years after Kelley’s passing, the Supreme Court recalled Taft’s earlier argument of employer abuses of power, acknowledging minimum wage fulfilling “liberty in a social organization which requires the

114

Goldmark, 180.

115

"Historical Overview of the National Womans Party," in Library of Congress.

116

Woloch, Muller v. Oregon, 59.

117

The Equal Rights Amendment was never ratified; West Coast Hotel Co. v. Parrish, No. 293, slip op. at 300 U.S. 379 (Mar. 29, 1937). Accessed February 25, 2022.

Tian 36 protection of law against the evils which menace the [people's] health, safety, morals and welfare.”118 Upon the relief of the decision, Goldmark thought of Kelley. 119 Patience had paid off for the impatient crusader. In her biography of the NCL General Secretary, Goldmark would write of her as the driving force among the various women at the settlement house: “Lillian Wald had a more radiant personal charm; Julia Lathrop had greater sagacity in the ways of human behavior . . . Jane Addams had greater wisdom. But Florence Kelley above them all possessed a constantly flowing, inexhaustible life force, from which all could gain renewed strength.” 120 Goldmark and Kelley’s sponsorship of the Brandeis Brief created a legal solution tailored to fit the needs of the time. Fighting for girls and women, the Brandeis Brief conveyed their industrial realities while also losing itself in maternalistic selectivity. Yet Goldmark and Kelley were constrained by the realities of their time period and a set of standards that portrayed women in accordance with their limited economic opportunities. As suffragists brought women into the public sphere, the modern woman rewrote the economically dependent woman of the early Progressive Era, and extralegal evidence evolved to match her independence. Adkins proved that popular imagination evolved faster than the realization of income insufficiencies, marking an end to the validity of pressure-group policies. In terms of establishing social legislation, legal realism stopped short of accepting minimum wage as a necessary component to freedom of contract.

Judicial review demanded women to either be wards of the state or economically equal without providing a pathway for them to achieve that ideal. Despite failing to establish minimum wage

118

West Coast Hotel Co. v. Parrish, No. 293, slip op. at 300.

119

Goldmark, Impatient Crusader, 179.

120

Goldmark, 210.

Tian 37 standards, the Progressive reformers chipped away at the objective marble exterior of the American judicial system, creating a corridor for the light of human reality to shine through.

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