The opinion of the Supreme Court in muller v. oregon (1908) began with an unusual acknowledgment: the Court had found useful a brief by louis d. brandeis, supporting Oregon's law regulating women's working hours. The brief had presented the views of doctors and social workers, the conclusions of various public committees that had investigated the conditions of women's labor, and an outline of similar legislation in the United States and overseas. The Court said that although these materials "may not be, technically speaking, authorities," they were "significant of a widespread belief that woman's physical structure, and the functions she performs in consequence thereof, justify special legislation." Its intimations of female dependency aside, this comment marked an important event: the Court's recognition of the utility of briefing and argument addressed to the factual basis for legislation.
Underlying the Muller opinion's comment lay a deeper change in the judiciary's conception of its proper role. Since around the time of the Civil War, lawyers and judges had commonly believed that the development of legal (including constitutional) doctrine was a pursuit of truth. In this view, there were answers to be found in authoritative documents such as laws and constitutions. The Muller opinion signaled a recognition that judges had a creative, legislative role, that they were properly concerned with the evaluation of the factual basis for legislation. This development, which sometimes bore the name of sociological jurisprudence and which culminated in the legal realism of the 1920s and 1930s, represented a major shift in judicial attitudes. Judges came to see themselves as active participants in adapting the law to the needs of society. The technique of the Brandeis brief came to serve not only in cases involving economic regulation but also in other constitutional contexts far removed. A famous modern example is brown v. board of education (1954), in which an amicus curiae brief detailed the views of social scientists on the educational harm of racial segregation in schools.
It is possible to present such factual material as evidence in the trial of a constitutional case, and today it is not unusual for counsel to do so. However, the Brandeis brief has become a common technique in the Supreme Court and other appellate courts. In the Muller case, the Brandeis brief aimed at demonstrating that the Oregon legislature reasonably could have believed that certain evils existed and that a limit on women's working hours would mitigate them. Brandeis himself argued no more than that. The assumption was that the law was valid if there was a rational basis for the legislature's assumptions. Evidence on the other side of the factual questions would, in theory, be irrelevant. When the presumption of constitutionality is weaker—that is, when the state must justify its legislation by reference to a compelling state interest or some other heightened standard of review—the Brandeis brief technique may recommend itself to either side of the argument.
Kenneth L. Karst
(see also: Legislative Facts.)
Freund, Paul A. 1951 On Understanding the Supreme Court. Chap. 3. Boston: Little, Brown.