November 14, 2006
Louis Brandeis Posted by Joshua Zeitz at 04:05 PM EST In a signed column on the New York Times editorial page today, Adam Cohen notes that this is Louis Brandeis’s 150th birthday. It was Brandeis who revolutionized American jurisprudence when, in 1908, he presented the Supreme Court with a brief in favor of an Oregon state law mandating a maximum 10-hour work day for women. Most observers at the time expected the court to strike down the law on grounds that it violated workers’ “freedom of contract,” a principle located somewhere in the shadow of the Fourteenth Amendment. Instead of wrangling over constitutional law, Brandeis devoted 100 pages of his brief to social science literature that established the deleterious effects of physical labor on women and only 2 pages to the constitutional questions at hand. The court unanimously upheld the law. Eight years later, Woodrow Wilson appointed Brandeis an associate justice.
As Cohen points out, not everyone approved of the use of scientific evidence in court cases. Brandeis’s prickly colleague on the Court, Justice Oliver Wendell Holmes, Jr., complained that Brandeis “drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact—suggesting the textile industry.”
“I hate facts,” Holmes concluded.
But Brandeis was on the side of history. In the matter of Brown v. Board of Education, the Court ruled in 1954 that segregated public schools were inherently unconstitutional. Relying on psychological studies conducted by Kenneth Clark, which purported to show that black children who were raised and educated in segregated environments developed a crippling sense of inferiority, the Court determined that there could be no “separate but equal” schools in America. Even if all-black schools and all-white schools were granted equal funds and resources, segregation would psychologically damage black children and make it impossible for them to avail themselves of equal education resources.
Critics then and since have faulted the court for basing a large part of the Brown ruling on social science. For one, the Court’s logic inadvertently assumes that black children cannot learn outside the presence of white children, a patronizing and suspect conclusion to say the least. Moreover, Clark’s doll tests weren’t particularly well-designed. Social science literature is always in flux. How can the Court maintain a precedent if the foundations of its rulings are subject to decay?
Despite all these problems, Brandeis’s contribution to American jurisprudence remains very much intact. Today liberals and conservatives selectively draw on and criticize the use of expository evidence, slamming activist judges for stepping outside the law—except when it suits their purpose.
|
