September 29, 2023

by Dennis Crouch

Louis D. Brandeis was a well-known lawyer lengthy earlier than changing into a Supreme Court docket Justice. Within the 1908 case of Muller v. Oregon, Brandeis represented the State of Oregon defending the state’s rule limiting the variety of hours that ladies may work in sure industries.  In protection of the legislation, Brandeis filed a quick that offered social science analysis and empirical proof to help the argument that lengthy working hours had unfavorable results on ladies’s well being and household life.  That proof helped sway the court docket and likewise spawned the “Brandeis transient” — an strategy that proceed to be a well-liked mechanism for making an attempt to affect the Supreme Court docket. Brandeis briefs usually embrace numerous information and claims about how the world works and ask the court docket to make use of these information in its interpretation of the legislation.  One key drawback with this strategy is that it doesn’t comply with the standard guidelines of proof required for factual findings.  And, when the Supreme Court docket adopts the findings, then the information all of the sudden develop into the legislation and binding precedent.  Thus, Muller v. Oregon, the Supreme Court docket precedentially concluded that it was uniquely dangerous for ladies to work lengthy hours and that their pure caregiver function could be improperly disrupted.  At this time, we’d acknowledge that these conclusions included inherent cultural biases somewhat than stemming from the character of girls.

A significant drawback with this type of evidentiary submission on to the Supreme Court docket is that it’s unchecked and admittedly biased — these are despatched to the court docket in briefs advocating a selected viewpoint and with out the bizarre judicial evidentiary course of.  However, proponents of Brandeis briefs argue that the foundations don’t apply to those “legislative information” as a result of the proof is getting used to interpret the legislation somewhat than make case-specific factual conclusions.  That is a lot the identical strategy because the Court docket makes use of to find out historic information for originalist choices.  However, many historians would agree that historical past as outlined in Supreme Court docket circumstances seems to be cherry-picked with a view to obtain a selected outcomes.

In patent circumstances, we regularly have Brandeis briefs on the coverage impression of sure decisions.  As well as, we additionally recurrently see makes an attempt to clarify the science to the justices in ways in which assist make them a selected conclusion.  In Amgen, as an example, Nobel Prize winner Gregory Winter submitted a quick explaining that antibody design is extraordinarily unpredictable and, due to that, broad purposeful claims shouldn’t be allowed.   Amgen contended that a number of the proof Winter relied upon had been excluded by the trial court docket, and thus shouldn’t be reintroduced to the Court docket. However, the apply is more likely to persist.