208 U.S. 412 (1908), argued 15 Jan. 1908, decided 24 Feb. 1908 by vote of 9 to 0; Brewer for the Court. In February 1903, Oregon set a maximum of ten hours of work a day for women employed in factories and laundries. The law differed little from other state statutes passed during the Progressive Era and constituted part of the reform drive to ameliorate the harsher aspects of industrialization. The Supreme Court had upheld a similar Utah law for miners in Holden v. Hardy (1898), but then by a 5‐to‐4 vote had struck down a New York ten‐hour limit for bakery workers as a violation of freedom of contract in Lochner v. New York (1905).
Shortly after that decision, Joe Haselbock, the foreman of Curt Muller's Grand Laundry in Portland, Oregon, required Mrs. Elmer Gotcher to work more than ten hours on 4 September 1905. Two weeks later a local court found Muller guilty of violating the state ten‐hour law and fined him ten dollars. Aware of Lochner, Muller appealed the misdemeanor conviction. The Oregon Supreme Court upheld the statute's constitutionality in 1906, and the following year the Supreme Court agreed to hear the case.
With the permission of the state's attorney general, the National Consumers' League secured Louis D. Brandeis to defend the law before the Supreme Court. Brandeis decided on a highly innovative strategy yet one firmly grounded in previous decisions of the high court.
In various cases testing protective legislation, the Court had repeatedly upheld the state's police power to guard the health, safety, and welfare of its citizens. The majority opinion by Justice Rufus W. Peckham in Lochner had asserted that no connection existed between the legitimate goals of the police power and the ten‐hour bakery law; in his dissent in that case, Justice John Marshall Harlan had suggested that if a valid reason could be found to justify the regulation of hours, such laws could withstand judicial scrutiny.
Brandeis, with the aid of Florence Kelley and Josephine Goldmark of the Consumers' League, set about amassing the evidence to demonstrate the connection between women's health and long hours worked in factories. The two women gathered every medical and government report remotely connected to this issue, and Brandeis assembled the material in a highly unusual brief.
He covered the legal precedents in only two pages, and instead of trying to overturn Lochner, used its assertion that concerns directly related to health, safety, and welfare could justify a state in abridging freedom of contract through limitation of hours. In the next fifteen pages he included excerpts of other state and foreign statutes to show that Oregon was not alone in its belief that long hours endangered women's health. Part two of the brief consisted of ninety‐five pages of quotations from American and European factory and medical reports, representing the best data available at the time, supporting the assertion that long hours had a detrimental effect on women's health.
In what observers described as a masterful argument before the Court, Brandeis followed the same strategy, assuming that the law would be upheld if the justices recognized the relationship between the statute and the state's legitimate interest in women's health.
The technique worked, and Justice David J. Brewer, speaking for the Court, not only upheld the law, but in an unusual aside, mentioned Brandeis and the “very copious collection” of data he had filed. The Court acknowledged that “woman's physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence.” Long hours of work took a toll on a woman, “and as healthy mothers are essential to vigorous offspring, the physical well‐being of women becomes an object of public interest and care” (p. 421).
Brewer took care to note that the decision in Muller did not “in any respect” undermine the earlier opinion in Lochner, although many people at the time assumed that the Court had sub silentio overruled Lochner. In the 1920s, however, the conservative majority resurrected Lochner and its doctrine of freedom of contract.
Muller became the paradigm for efforts to make courts aware of social and economic conditions underlying reform legislation. Brandeis created an entry into legal argument for social facts; the “Brandeis brief” would now be the norm for advocates defending reform legislation as well as those attacking particular social conditions, such as racial segregation in Brown v. Board of Education (1954).
See also Due Process, Substantive; Gender; State Regulation of Commerce.
Bibliography
- Alpheus T. Mason,
The Case of the Overworked Laundress , in Quarrels that Have Shaped the Constitution, edited by John Garraty (1975), pp. 176–190. - Nancy Woloch, Muller v. Oregon: A Brief History with Documents (1996)
— Melvin I. Urofsky
