For the Balkinization symposium on Robert Post, The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).
Jill Lepore
In May 1923, weeks after the U.S. Supreme Court handed down
its decision in Adkins v. Children’s
Hospital, the nation’s leading labor reformer, the lawyer Florence Kelley, called
for an overhaul of the federal judiciary. She wanted to put women on the bench.[1]
In Adkins, the
Court struck down DC’s minimum wage law for women. Justice George Sutherland,
writing for the majority, argued that labor laws aimed at women amounted to an
unconstitutional interference in the liberty of contract and that, in any case,
such laws were no longer necessary because the “ancient inequality of the
sexes” had become, by the dizzying, Model Ts-and-frozen-food age of the flapper,
a thing of the past. Given “the great — not to say
revolutionary — changes … in the contractual, political and civil status of
women, culminating in the Nineteenth Amendment,” Sutherland wrote, “it is not
unreasonable to say that these differences have now come almost, if not quite,
to the vanishing point.”