History holds a lesson for the Supreme Court, the brief warns: Be skeptical of laws protecting women that are written by men.
The nation’s past is littered with such statutes, say the historians who filed the friend-of-the-court brief, and the motives were suspect.
Some protected women from “the embarrassment of hearing filthy evidence” as members of a jury, a sheltering instinct that resulted in female defendants being judged by panels composed only of men.
Some shielded women from having to work nights as pharmacists in hospitals — but not as low-wage custodians.
Some barred women from working as bartenders — jobs coveted by men — but not as cocktail waitresses.
The brief is filed by professors from across the country in the court’s upcoming abortion case, Whole Women’s Health v. Hellerstedt. The brief urges the justices to examine the intent of Texas legislators who say they approved new restrictions on abortion providers as health safeguards for the women undergoing the procedure.
“Any new law that claims to protect women’s health and safety should be scrutinized carefully to assess whether its ostensibly protective function actually serves to deny liberty and equal citizenship to women,” said the brief filed by 16 historians, 13 of whom are women.
It is part of an avalanche of amicus briefs filed by both sides in the case, which will be the court’s most important look at abortion rights in decades.
And the attempt at persuasion, like many of the others, is representative of a specialized brand of legal brief that aims to school the court not about law but about life.
“Brandeis briefs” are long on history and science and short on detailed legal citations. The first of its kind was filed in 1908 by lawyer Louis D. Brandeis, who eight years later became famous as the first Jewish Supreme Court justice.
Last month, Justice Ruth Bader Ginsburg discussed the importance of the revolutionary brief at — where else? — Brandeis University, in Waltham, Mass., at a ceremony marking the centennial of his Supreme Court appointment.
Brandeis’s submission “was unlike any the court had yet seen. It was to be loaded with facts and spare on formal legal argument,” Ginsburg said. The facts consumed 98 of the brief’s 113 pages.
“The aim of the Brandeis brief was to educate the judiciary about the real world in which the laws under inspection operated,” Ginsburg said.
Some have criticized such briefs as a way to bring before the justices arguments and unverified conclusions that are outside the record.
The one that has gotten the most attention is a brief filed by 113 lawyers who recount their own abortions and say they “would not have been able to achieve the personal or professional successes they have achieved” without access to the right.
It is answered by a “Brandeis-style brief” in which the group Priests for Life “presents to this court the compelling testimonies of individuals who have been harmed by the adverse effects of abortion.”
There are similar competing visions on both sides from physicians to social scientists and legal scholars.
What makes the feminist historian offering stand out is that it is, in effect, a Brandeis brief that seeks to refute the original Brandeis brief.
“You noticed,” said San Francisco lawyer Kevin M. Fong, who wrote the brief with colleague Christine A. Scheuneman.
Brandeis’s 1908 brief was filed in Muller v. Oregon , defending that state’s law limiting the daily hours of women working in factories and laundries (but not those of males). Brandeis argued that it was constitutional for the state to recognize the differences between the sexes.
According to one source quoted in his brief, for women, “free time is no resting time, as it is for a man.” A “working girl” should be “learning to keep house if her future household is not to be a disorderly failure.”
He added: “The overwork of future mothers directly attacks the welfare of the nation.”
The court upheld the law unanimously, and Ginsburg said “New Deal-oriented professors” in her late-1950s law classes taught the case as a triumph for the efforts to improve conditions and the lives of workers. The Oregon law was meant as a first step in limiting hours for all workers.
If she disagreed with the substance of Brandeis’s arguments, Ginsburg liked the tactic. In her speech at the university, she said that “copying Brandeis’s method” was useful in her efforts as a lawyer challenging laws that treated men and women differently.
“Laws once thought to operate benignly in women’s favor — keeping them off juries and relegating them to ‘women’s work’ in the military, for example — in time came to be seen as measures impeding women’s opportunity to participate in and contribute to society,” Ginsburg said.
The Brandeis brief had come full circle, and not surprisingly, the historians’ effort notes Ginsburg’s victories at the Supreme Court, and echoes her arguments from decades ago.
“Even when protection is a genuine goal, not a pretext, and even where an apparently protective regulation in theory might serve to safeguard health, such laws may function in practice to limit women’s freedom and autonomy,” it says.