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Justice Ginsburg discusses univ.’s namesake

Justice Ginsburg discusses univ.’s namesake

By Emily Sorkin Smith and Hannah Schuster

Section: Featured, News

January 29, 2016

Supreme Court Justice Ruth Bader Ginsburg commented last night on her appreciation for Louis Brandeis’ pioneering legal practice that used facts and the social conditions of the day to ensure that laws helped the people, addressing students, faculty, alumni and guests in the Gosman Sports and Convocation Center.

Her remarks and the panel discussion which followed kicked off a semester-long celebration of the 100-year anniversary of Brandeis’ appointment to the Supreme Court.

Justice Brandeis is known as “the people’s lawyer” who took on many social justice issues throughout his career as a lawyer, judge and Justice.

In what has become know as the “Brandeis Brief” of 1908, he pioneered the use of facts to support legal arguments, as opposed to legal philosophy. The brief argued in favor of an Oregon law that restricted women’s work hours in factories.

“Let me explain why I applaud Brandeis’ methods but not the decision he sought and gained,” said Ginsburg.

“It was to be loaded with facts and spare on legal argument,” said Ginsburg, describing the research Brandeis’ team produced to argue that long work days were detrimental to women.

Brandeis used medical studies to argue his case, some of which would not hold up today, said Ginsburg, including a study which said women have more water in their blood and muscles than men.

“Women, Brandeis urged, were more susceptible than men to the maladies of industrialization and their unique vulnerabilities warranted the state’s sheltering arm,” said Ginsburg in a serious tone, eliciting laughter from the crowd.

Today, however, Ginsburg employs a similar method of fact-based legal arguments inspired by Brandeis’ methods. In the 1970s, a “turning point” in the women’s rights movement, “Brandeis-style briefs explained that as economies developed and society evolved, laws premised on women’s subordinate status” violated the Equal Protection Clause in the Constitution.

In 1975, Ginsburg argued a case of a man whose wage-earning wife died in childbirth and was not allowed to seek the benefits which would have been available to a woman in his situation.

In cases such as this, “Brandeis style briefs explained that as economies developed and societies evolved, laws premised on women’s subordinate status” violated the Equal Protection Clause. Brandeis himself adapted positions on women over the years. While in the 1880s Brandeis opposed suffrage for women, by 1910 he was an “ardent supporter,” said Ginsburg.

One of Brandeis’ gifts was his ability to adapt his positions to changing social conditions, according to all of the speakers. “Brandeis’ views could change when information and experience showed his initial judgement was not right,” she said.

The purpose of the celebration was, in part, to reflect on Justice Brandeis’ role in the world today.

There was disagreement on stage when panelist Jeffrey Toobin, who has written books and articles about the Supreme Court, took issue with Ginsberg’s claim that Brandeis would have opposed the Supreme Court’s 2010 decision in Citizens United, which struck down restrictions on campaign finance spending.

Brandeis was a supporter of free speech and the marketplace of ideas, allowing citizens to hear everyone’s views and make reasoned decisions, but Toobin was not certain Brandeis would have supported the government’s attempts to regulate “speech” through campaign spending.

“If you believe that the government should withdraw from the field of any sort of speech regulations, then you do let the Koch brothers spend whatever they want for the political goals that they share,” said Toobin.

Ginsburg and other panelists expressed belief that Brandeis would support campaign finance reform to allow all citizens the chance to participate in the democratic process.

“Democracy requires that everyone be able to effectively participate,” said Judge Mark Wolf, who believes Brandeis’ desire to keep the political process “fair” would have trumped his “unqualified…commitment to free speech.”

It is hard to conclude what Brandeis would have done, because one cannot know exactly how he would have reacted to society today, said Strum.

“I think we really can’t answer the question of what would Brandeis say. But I think we can answer the question of what principles guided Brandeis and how do we apply those to problems we’re looking at today,” said Strum.

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