Revenge of the triple negative: a note on the Brandeis brief in Muller v. Oregon.

• Author: Spillenger, Clyde

The legal brief filed by Louis D. Brandeis and Josephine Goldmark in the case of Muller v. Oregon (1)--the original "Brandeis brief"--remains a landmark in American constitutional lawyering. Of course, the brief, like the U.S. Supreme Court's own opinion in Muller, has not worn well with everyone. The Muller case was once regarded in conventional legal and constitutional histories as a ray of progressive light amidst the darkness of such decisions as Lochner (2) and Adkins, (3) and a testament to Brandeis's brilliant legal strategy; today legal scholars (particularly feminists and libertarians) are as likely to stress the paternalism (or "maternalism"), indeed the unvarnished sexism, of Justice Brewer's language concerning woman's distinctive role of discharging the "burdens of motherhood," (4) so as to promote "the future well-being of the race," (5) in his opinion upholding Oregon's maximum-hours law for laundresses. (6) And the lengthy presentation of statistical studies, public health reports, and other "social facts" in the Brandeis and Goldmark brief, (7) while perhaps a bit more nuanced than Brewer's blunt opinion, largely prefigured Brewer's conclusions. (8) Moreover, the brief is now regarded by many scholars as relying on a highly selective presentation of "scientific" studies that by modern standards seem biased and amateurish. (9) Nevertheless, I suspect that, as a landmark in constitutional-political advocacy, the brief retains much of its luster, or at least importance, for historians and legal scholars. Certainly the "Brandeis brief" has been, in many major cases, an important weapon in the arsenal of appellate litigators, and its immediate impact on the movement for protective labor legislation was considerable.

Let's turn for a moment to the brief itself. I ask the reader to examine Brandeis's concluding paragraph:

CONCLUSION

We submit 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 in one day. See Holden v. Hardy, 169 U.S. 366, 395, 397.

LOUIS D. BRANDEIS,

Counsel for State of Oregon.

Unless I miss my guess, you probably have found it necessary to read this passage a second or perhaps even a third time.

I think most lawyers would agree that this was not the ideal way of concluding one of the most important briefs ever to be filed in the U.S. Supreme Court. It's a pretty long sentence, and residing within it is a formidable triple negative. It evokes the question H.L. Mencken asked after reciting a passage from Warren G. Harding's inaugural address: "What on earth does it mean?" (10) It is hard to believe that a reputable law firm today would allow such a brief in a major U.S. Supreme Court case to leave the office for the printer without first ensuring that that final paragraph...