Bruce W. Dearstyne: Revisiting the “Brandeis Brief”

Bruce W. Dearstyne

Bruce W. Dearstyne is a historian in Albany, New York. SUNY Press published the second edition of his book The Spirit of New York: Defining Events in the Empire State’s History and his newest book, The Crucible of Public Policy: New York Courts in the Progressive Era, in 2022.

The “Brandeis Brief”  was the first brief in U.S. legal history to present detailed information about actual working conditions rather than just legal and constitutional references. Attorney Louis D. Brandeis, labor reform advocate and later Supreme Court Associate Justice, prepared and submitted the brief in the 1908 U.S. Supreme Court case of Muller v. Oregon.  That case tested the constitutionality of an Oregon law restricting the number of hours women were allowed to work.  Brandeis developed the brief at the request of the National Consumers League, an advocate for improved working conditions for women. Josephine Goldmark, a League officer and  Brandeis’ sister-in-law, did much of the research for the document and aided in its preparation. 

The 113-page brief had only two pages of legal arguments and citations. The rest quoted reports and testimony by doctors, social scientists, and labor experts about the negative effects of long hours on women’s health, safety, morals and general welfare.  The court was impressed. It held the law was constitutional.[1]

Muller v. Oregon became a landmark decision. The “Brandeis Brief” changed how lawyers defended state labor legislation. This was the progressive era (ca. 1900-1920) and the brief aligned well with reformers’ faith in scientific investigation and assembly of evidence in support of social and economic legislation. 

New York’s Law Challenged

Brandeis submitted later briefs in Illinois, Ohio, Oregon, and in New York. That  brief was filed in the  case of People v. Charles Schweinler Press. (295 NY 402, 1915). This New York brief has not been studied by scholars but there is a copy in the file for the case in the Court of Appeals records in the New York State Archives.[2]  

The Schweinler case tested the constitutionality of  a law forbidding women from working at night, between 10:00 PM and 6:00 AM, in factories. That law, enacted in 1913, was a replacement for a similar statute, passed in 1903, that  the Court of Appeals had invalidated in 1907 (People v. Williams). Women are not “wards of the state” said the court in that case. The 1903  law constituted unwarranted state interference with liberty of contract and violated the constitution’s prohibition of taking property without due process of law.[3]

The 1913 law was crafted by the New York State Factory Investigating Commission (FIC), established after the tragic Triangle Shirtwaist Factory fire in  New York City in 1911 that killed many employees. It was part of a battery of reform laws to protect workers. The coalition that got it passed included the legislative leaders who headed the FIC, the FIC’s staff, the National Consumers League, and women’s rights advocates.  The law was similar to the law that the court had invalidated in 1907 but it added the phrase “in order to protect the health and morals of females employed in factories by providing an adequate period of rest at night” as justification.[4] The reference to “morals” apparently meant the possible temptations and risks that reformers believed women faced in working closely with men at night.

The case was launched when a state factory inspector found women at work in the Schweinler printing factory in New York City at 10:30 PM on Feb. 8, 1914. The inspector decided it would make prosecution easer to cite the company for a single identifiable violation. She picked a woman employee named May Cashal who was working as a “fly girl.” Her job was to pick up loose printed sheets emerging from the printing presses and lay them on a cart to be carried away for binding. It was the sort of work carried out by hundreds of women in the city’s many printing facilities.  Cashal was married, with three children, and the inspector selected her in part because on the of rationales for the law was that night work stressed and exhausted mothers and led them to neglect their families.

Schweinler Press contended that the law was a violation of the constitution’s prohibition against taking property without due process of law. The trial court disagreed and found Schweinler guilty. The company appealed and the Appellate Division affirmed the verdict in July 1914.  The company appealed again, to the state’s highest court, the Court of Appeals.

Defending the Law

When the case came up before the Court of Appeals in 1915, the  New York County District Attorney and the State Attorney General argued that the state has an obligation to protect the “health and morals” of women working in factories, the mission stated in the law. The FIC submitted a brief that  summarized what it had found about the harmful effects of night work on women. 

But it was  the 529-page “Brandeis Brief” that carried most of the defense of the law.  That brief was prepared by Brandeis with the assistance of Josephine Goldmark, who was then Publication Secretary of the National Consumers League. She had assisted with the Oregon and other state briefs but this time she much was more centrally involved, as one of the leaders in getting the bill passed and organizing the strategy for its court defense. 

The brief quoted from dozens of studies and reports from New York itself, other states, the federal government Britain, France, Germany, and other nations. Its major points:

* Two pages at the beginning summarized legislation prohibiting employment of women at night in five other states. That showed that New York was not alone, but certainly was not on the leading edge.

* The document next summarized legislation in Britain, Germany, France, Italy and a number of other European nations. The takeaway was that the U.S. – and in particular New York – was lagging behind enlightened nations. 

*A long section on “The Dangers of Nightwork for Women” explained that night work harmed women because they were less physically strong than men and they suffered more on-the-job accidents and injuries. Sleeping during the day was less restful than sleeping at night. Night work  deprived them of time with their husbands and families. Women also faced dangers on the streets when walking home alone at night.

*A discussion of economic factors contended that employing women at night benefitted companies because they could pay women less than men and that they often speeded up night work to get more production

*A section on “the new strain in manufacture” explained how the speed of machinery and the monotony of the work resulted in stress-induced “nervous diseases.”

*The final section quoted extensively from Mary Van Kleek’s 1913 book Women in the Bookbinding Trade. That book documented work done by women in print shops like Schweinler’s.  While the work in printing plants seemed light and easy, in reality it was exacting, tedious, and dangerous because it exposed workers to ungarded machinery. Women were sometimes exploited by being paid low wages and required to work long hours.

Attacking the Law 

Alfred Ommen, counsel for the Schweinler company, filed two briefs.

In the first one, he pointed out that the law was discriminatory; men could work at night but women could not. Working women themselves were not consulted by the FIC, the bill’s sponsors, or its advocates about their own preferences and needs, so the law was passed in disregard of “the practical knowledge of the people who will be most affected by them.” The Brandeis brief selected and organized evidence to buttress a pre-conceived position. Many of its references were outdated and “it concerns itself in the main with old conditions.” Ommen quoted New York’s highly respected U.S. Senator, Elihu Root, and author Ida Tarbell, a well-known critic of past factory conditions, both of whom attested that conditions had improved. 

Some light work “is naturally women’s work and they are best fitted for it.” If the law stands, employers will replace women with men and “hundreds of women will be driven on the streets.” Women workers, placed by the law “in a class by themselves,” will become “economically useless.” Women can take care of themselves. They should be able to choose when and where to work. [5]

Ommen later submitted a second brief to refute the FIC and Brandeis briefs. Night work was not inherently unhealthy. “There is no public sentiment in favor of this law.” The whole thing was the product of “outsiders who look upon it as a personal conquest” and really do not care about “its sad effects” on working women. If men can work in factories at night but women cannot, “you are restricting her right of contract and making her a ward of the State.”[6]

Women could not vote in those days (that came in 1917 in New York), there were no women legislators and no women judges. There were many women advocates for the law, but they were mostly middle-class reformers. Women actually working in factories were not consulted. Ommen arranged for May Cashel to appear as a court witness for the company and invited the press to cover her testimony. The work was light and easy, Cashel explained. She needed to work to supplement her husband’s modest salary as a stevedore. Her husband had breakfast waiting for her when she returned home in the morning after work. He took care of the household work. The older children went to school, and she was able to sleep during the day. The four-year-old played around the house or snuggled beside her mother in bed. The children were well cared for and “you see I look sturdy and well,” she told the court.[7]

The Court, Convinced by the Evidence, Approves the Law

The Court of Appeals’ decision in Schweinler  in March 1915 went with the FIC and the Brandeis brief. It held the law was valid and constitutional. The evidence that the legislature had before it from the FIC and other sources when the law passed, and the even greater abundance of evidence presented by the Brandeis brief that the court itself now had before it, proved that “the interest of public health and welfare” justified the law.[8]

A Good Law, a Good Legal Brief and a Good Decision?

The law’s advocates celebrated. The court had supported what they regarded as an exemplary law to protect women workers.

Alfred Ommen, though, insisted that the decision was actually a setback for women. “A little group of serious thinkers” and “uplifters” had misled the judges into thinking that night work harmed women. Over the past few years, men had “found her a ward of the State and emancipated her so that she had industrial and economic liberty” to work as she wished.   The Schweinler  decision “turned the hands of the clock back fifty years” and relegated women to second-class citizenship.[9]

Some other states enacted laws banning women’s night work in factories, prescribing maximum hours and establishing minimum wages. Historians have mostly hailed these laws as appropriate and beneficial progressive reforms. 

But the decision conveyed a mixed message: the state could regulate women’s working hours, but this implied that women workers should be treated different from men. Some historians would agree with Alfred Ommen: the law and the decision that sustained it rested on the assumption that women were inferior to men and therefore needed special protection. After women gained the right to vote in New York State in 1917, and at the national level in 1920, there was a shift in emphases from protective legislation to laws that treated all workers, men and women, equally.

Ruth Bader Ginsburg, Associate Justice of the U.S. Supreme Court from 1993 to 2020, wrote that when she was in law school in the 1950’s, students studied the Oregon Brandeis Brief as a model of organized, persuasive evidence that progressive regulations were justified and beneficial. They learned that “Muller was a decision to applaud” because it marked the first time the court had upheld social and economic legislation that was attacked as invading constitutionally-protected liberty to contract.  

But Ginsburg later changed her mind. 

In court briefs she  filed as an attorney in the 1970’s,  she referred to  laws that limited women’s hours and the  Mullerdecision as “obstacles to the Supreme Court’s recognition of the equal citizenship stature of men and women as constitutional principle.” She still hailed the Brandeis Brief as a monumental achievement. But it had convinced the courts to support what Ginsburg now regarded as mistaken paternalistic policy.

In effect, Ginsburg was more or less endorsing the views of the New York Court of Appeals in its 1907 People v. Williams, and counsel Ommen’s perspective in People v. Schweinler Press

But  “the method Brandeis used to prevail is one I admired and copied,” she said. The aim of the Brandeis brief was to educate the court about “the real world in which the laws under inspection operated.” 

Ginsburg put Brandeis’ methodology to work. She complied Brandeis-style briefs citing lots of studies, reports, and other evidence to show that “as the economy developed and society evolved, laws premised on women’s subordinate status violated the Constitution’s guarantee of ‘the equal protection of the laws’ for all. [10]

New York’s Schweinler case demonstrates the strengths and persuasiveness of the Brandeis Briefs. It also demonstrates the limitations, and possibly the detrimental effects, of well-intentioned progressive regulations to protect women workers. It shows how reformers’ perspectives and judges’ perspectives can change over time. Finally, the case shows the benefits of carefully assembling documentary evidence in key court cases.

[1] Melvin I. Urofsky, Louis D. Brandeis: A Life (New York: Pantheon Books, 2009), 207-227

[2] “A Summary of ‘Facts of Knowledge. Submitted on Behalf of the People in Support of its Brief on the Case.” 1914. The title page says “This Brief Prepared by Louis D, Brandeis Assisted  by Josephine Goldmark, Publication Secretary, National Consumers League”

[3] People v Williams, 189 NY 131, 137 (1907)

[4] N.Y. Laws of 1913 Ch. 83

[5] “Appellant’s Points” (1914), 1-46. In Cases and Briefs on Appeal for People v. Charles Schweinler Press, Court of Appeals Records, New York State Archives

[6] “Appellant’s Reply Brief” (1915), 1-15. In Cases and Briefs on Appeal  for People v. Charles Schweinder Press, Court of Appeals Records, New York State Archives

[7] “Test Woman’s Right to Work at Night,” New York Times. Feb. 20, 1914

[8] People v. Charles Schweinler Press 295 NY 402 (1915)

[9] Alfred Ommen, “Women’s Work,” New York Times April 15, 1915

[10] Ruth Bader Ginsburg, “Lessons Learned from Louis D. Brandeis,” presentation at Brandeis University, January 28, 2016,