Constituting Works, Protecting Women

Front matter

Novkoy, Julie. Constituting Workers, Protecting Women: Gender, Law and Labor In the Progressive Era and New Deal Years.

E-book, Ann Arbor, MI: University of Michigan Press, 2001, https://doi.org/10.3998/mpub.17391. mn E7 on behalf of University of Michigan, Ann Arbor ~~

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Contents

List of Tables Acknowledgments Chapter

1. Rethinking the Constitutional Crisis of the 1930s: The Forgotten Doctrinal Roots of the Modern Welfare State

2. Generalized Balancing: The Early Struggles over Protective Labor Legislation

Chapter 1

Rethinking the Constitutional Crisis of the 1930s: The Forgotten Doctrinal Roots of the Modern Welfare State

In many scholars’ views, the modern American welfare state, with its myriad protections for workers and citizens, was born on March 29, 1937. On that date, the U.S. Supreme Court announced its ruling in West Coast Hotel v. Parrish, a case that later courts would interpret to eliminate the constitutional barriers to the states’ efforts to establish minimum wages for workers, the Fair Labor Standards Act, and a host of other measures taken by the states and the federal government to improve the working and living conditions of citizens. In most constitutional historians’ interpretations, the government had a new ability to regulate the workplace arising from a fundamental shift in constitutional principles brought about by the political turmoil of conflicts between the New Deal’s supporters and detractors.

The rulings of the federal and state courts in the post-1937 period stand in marked contrast to the courts’ activities in the earlier years. The regulatory impulse giving rise to major federal intervention in the labor market was not simply an artifact of the New Deal or the Great Depression. Rather, reformers had been pushing for more regulation for decades, most notably during the Progressive Era. Political activism promoting an interventionist state emerged in the immediate wake of the rise of large industry in the latter half of the nineteenth century, and this activism was initially successful in achieving legislative victories in the states. The problem, crystallized in the Supreme Court’s 1905 ruling in Lochner v. New York, was that the U.S. courts on both state and federal levels were largely unwilling to sanction the expansion of the state’s

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI Downloaded on behalf of University of M n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor power that would support such efforts. Instead, many judges actively worked against such reforms, striking down measure after measure that sought to regulate the hours, wages, and working conditions of American laborers.

The New Deal, in most scholarly interpretations, brought this conflict to a head. Congress and the president found themselves at loggerheads with the Supreme Court as Congress attempted to put into effect legislation that would ameliorate the effects of the Great Depression and usher in a host of new federal regulations of labor and the economy. In the early 1930s, the Court rebuffed these attempts, leading to a bitter dispute over questions of constitutional interpretation and in particular over the scope of national and state regulatory authority. This battle reached its climax in 1937, when in the view of most commentators the Supreme Court capitulated to the will of Congress and President Roosevelt. At this time, the Court finally agreed to uphold the kinds of regulatory statutes that it had previously invalidated. This moment is significant, claim scholars, because it foretold the establishment of the modern welfare state on the national level. The case in which this shift took place was West Coast Hotel Co. v. Parrish.

Most scholars studying the constitutional roots of the modern welfare state see the ruling in West Coast Hotel as a new beginning in constitutional history and as a rejection of a vision of the Constitution that could not function adequately in the modern state. They thus often read the case as having both feet firmly in the future, looking forward to the rise of modern national authority over, and intervention in, the lives of citizens.

This book reinterprets the doctrinal foundations of the modern welfare state by reading West Coast Hotel against this familiar grain, understanding it instead as a case with deep roots in the past. Its roots lie in the relationship among gender, political development, and law. By centering the gender of regulated workers in the analysis of the legal battles, we see that the “constitutional revolution” of 1937 consisted of the extension and general application of a standard for judgment that had been meticulously constructed during the second and third decades of the century to apply principally to female workers. Rereading Lochner and the doctrinal path to West Coast Hotel in light of gender enables a new understanding of the ways that courts constructed labor and laborers in the early twentieth century. Considering gender and

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor political development in light of the doctrinal path to West Coast Hotel promotes a rethinking of the debates between and among feminists in the early twentieth century, in particular suggesting that maternalism was both helpful and problematic within and outside of feminism. This analysis will show that the doctrinal pathways established gender-based divisions between laborers that enabled some members of the working class to have statutory protection while others were left unprotected, further contributing to the dilution of class-based interests in politics and law.

The gender of the workers that reformers wished to protect significantly shaped the scope of the ideological alternatives facing the courts and ultimately the nation. Contemporary feminist historians have rightfully focused attention on the ways that Progressive women influenced substantive debates about the meaning of citizenship and other core values. This book will show how a largely middle-class, feminine effort to regulate the labor of working-class women during the early twentieth century shaped the development of the jurisprudence of due process, casting a lengthy historical shadow that still influences constitutional considerations of liberty today.

The Case That Launched a Thousand Law Review Articles

Between the lean years of 1933 and 1935, a woman named Elsie Lee was fortunate enough to find a job working irregularly as a chambermaid at the Cascadian Hotel in Wenatchee, Washington. She started at an hourly wage of twenty-two cents, which later went up to a quarter (Leuchtenberg 1995, 164). In 1935, the hotel discharged her. She filed a lawsuit against the West Coast Hotel Company, which owned the Cascadian, asking for back pay under a Washington state statute mandating a minimum wage for women. In her suit, she sought the extra money that she would have gotten if the hotel had complied with the twenty-five-year-old Washington law, which set a $14.50 weekly minimum wage for hotel employees (Leuchtenberg 1995, 163-64). At the trial, Elsie, who had married in the meantime and changed her last name to Parrish, testified that the West Coast Hotel Company owed her $216.19 for the years that she had worked for substandard wages. She explained, “I had in mind that I should be paid—should have been

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M paid—the state wage and that it would be paid. I took what they gave me because I needed the work so bad and I figured they would pay what was right” (St. John 1974, 187).

The hotel company defended itself confidently by claiming that this statute violated workers’ liberties to make contracts freely with their employers (Roberts and Skeel 1937). The constitutional basis for this argument was the due process clause of the Fourteenth Amendment, which specifically provided that the state could not take away life, liberty, or property without due process of law. First the trial court and then the Washington State Supreme Court ruled in Elsie Parrish’s favor, apparently unimpressed by the hotel company’s argument. However, the company’s attorneys had reason to be optimistic despite losing the case on the state level. After all, the Supreme Court had declared a minimum wage for women unconstitutional in 1923 and had reaffirmed this ruling in 1936 in a case involving female laundry employees’ challenge to a statutory minimum wage in New York. Ms. Parrish’s case, however, was destined go differently, producing one of the most significant rulings issued by the Supreme Court in the twentieth century.

Politics as Usual: The Post-New Deal Consensus on the Lochner Era

Most observers would agree that early years of the twentieth century saw political and legal negotiation over the relationship between large-scale industrial capitalism and the state. This negotiation took place in every governmental forum, encompassing all three branches of government and involving local, state, and national actors. The wide recognition of the importance of this negotiation has provoked intense scholarly interest in the Progressive and New Deal eras both to enhance understanding of how this negotiation took place and to explain the nature and scope of institutions today. Legal scholars have focused on the judiciary, in particular on the Supreme Court, because the Court was a visible and influential institutional actor. Further, its invalidations of favored progressive measures provoked and continue to provoke controversy about its proper role in a democratic system. The crystallized metaphor for all of these concerns was Lochner, which West Coast Hotel repudiated.

The Supreme Court changed the legal and political terrain irrevon: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M cably by ruling in West Coast Hotel v. Parrish that state legislatures’ actions would no longer be stringently questioned for their infringements of individuals’ rights to make labor contracts freely (300 U.S. 379 (1937)). After the ruling in West Coast Hotel, the Supreme Court (and therefore all federal courts) suddenly began upholding rather than striking down New Deal legislation, clearing the path for the development and administration of the modern welfare state. This decision thus ushered in a new role for the federal courts and redistributed the balance of power between the courts and legislatures. The courts would no longer use the due process clause as a ground to strike down economic regulations. Scholars have therefore sought to explain the case’s meaning in these terms. The Court also set the stage for the Washington state courts to find on remand that plaintiff Elsie Parrish, nearly forgotten in the shadow of these monumental implications, was entitled to her back pay.

The leading interpretations, while quite different from each other, all see West Coast Hotel as a watershed moment of change in the history of the Supreme Court and consequently in the history of the nation. Two lines of interpretation are particularly significant: the post-New Deal consensus about the meaning of the Lochner era and its demise, and recent historically rooted critiques of this consensus.

The most familiar interpretation of West Coast Hotel is a political reading of the case and its significance (Rowe 1999, 231). Prominent New Dealers saw Lochner as demonstrating the dangers of excessive judicial power and commitment to a historically superseded formalist conception of contracts (Rowe 1999, 223-31). Their narrative goes as follows: in the early 1930s, the Court had struck down much of the New Deal program endorsed by President Roosevelt and the Democratically controlled Congress. Infuriated by the Court’s perceived ability to thwart the popular will, Roosevelt and his advisors devised a plan to nullify the influence of the most conservative justices by adding seats to the Court, effectively bringing its membership up to fifteen. The Court, recognizing the institutional threat that this movement presented, used West Coast Hotel as an opportunity to back off from its hard line against New Deal innovations. In a five-to-four decision, the justices accepted a minimum wage statute, in effect ignoring their ruling of only one year earlier in which they had struck down a similar statute based on the 1923 precedent of Adkins v. Children’s Hospital (261 U.S. 525 (1923)). This “switch in time that saved nine” took the wind out of the sails of the n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M movement to rein in the Court but left the Court a weaker institution for the next several years.

This reading presents the case as the Court’s capitulation to the other branches of the federal government, with the justice’s acknowledgment that state legislatures and Congress should be permitted to protect workers against greedy or unscrupulous employers. In this understanding, West Coast Hotel ushered in a new constitutional era, one in which the courts would be far more accommodating to legislative solutions to social and economic problems. In this interpretation, the case authorized a new understanding of the relationship between the state and its citizens, allowing for a much higher degree of protection for individuals than had ever existed before and thus for the establishment of the national welfare state.

In this view, the change in the Court’s reasoning can be attributed to the justices’ fear that continued opposition to the Roosevelt administration would lead to crippling limits on the courts and the loss of judicial legitimacy.’ Lochner itself was steeped in political motives, and fears about the loss of institutional authority sparked its demise. Most of those holding this view see the reasoning in the opinions themselves as relatively unimportant; it is the outcome that matters. William Leuchtenberg, while not attributing the outcome in West Coast Hotel directly to the existence of the Court-packing plan, still reads the case as the culmination of a political struggle between the courts on the one hand and the president and Congress on the other (Leuchtenberg 1995). Most scholars agree, however, that the Court’s abrupt reversal in 1937 brought it back into line with the sentiments of political reformers and the nation at large and that the ruling was designed to accomplish this end (Kens 1995; Conkle 1987; Leuchtenberg 1995).

In this line of interpretation, the Lochner era is important as a cautionary tale to the courts about the dangers of thwarting democratic will and institutional authority. While concerns about countermajoritarianism have not always been the direct focus of these scholars, such concerns have maintained the pejorative emphasis on Lochner in the period after Brown v. Board of Education (Friedman 1998). Studying the Lochner era and its end is valuable for these scholars because through

1. The best-known version of this argument is probably McCloskey’s 1962 examination of economic substantive due process, but a number of other authors have embraced this interpretation from a variety of political standpoints (Conkle 1987; Sunstein 1987; Kens 1995).

n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M understanding the political process behind Lochner and its reversal, one can understand the political limits on constitutional jurisprudence.

Recent Reassessments of the Lochner Era and the New Deal Court

Recently, a group of scholars has initiated the process of rethinking Lochner and its meaning with the hope of presenting a more nuanced and historicized analysis of the era and its relationship to the present in light of West Coast Hotel’s volte face. Constitutional theorists Bruce Ackerman, Cass Sunstein, and Robert Post, and political historians Howard Gillman, Barry Cushman, and others, have questioned the simple political explanation that the Lochner era was about judges’ reaching illegitimate outcomes on the basis of reliance on their outmoded conservative conceptions of the proper relationship between capital and labor. In its place these authors have substituted deeper inquiries about the shape of the doctrinal path between Lochner and West Coast Hotel and the relationship between this path and mutable jurisprudential concepts such as police power, liberty, and contract. These revisionists have moved beyond the question of what Lochner meant, focusing instead on the historical and jurisprudential developments that Lochner and its antecedents set into motion and the political implications of these developments (Rowe 1999, 223-24).

Bruce Ackerman reads West Coast Hotel as a deep shift in constitutional philosophy. While he argues that the case was not a definitive turning point but rather “an uncertain herald of revolutionary reform,” he nonetheless claims that it marked a profound shift in the constitutional baseline (Ackerman 1998, 366). In Ackerman’s view, this shift in constitutional reasoning was part of a larger political process initiated outside of the judiciary by the New Deal (312-33). He finds the roots of the modern welfare state in the New Deal’s vision of an activist national government and the confrontation that the New Deal provoked between the president and the Court (359). In Ackerman’s view, rather than seeking to protect its institutional authority against a hostile presidential administration and Congress, the Court was acknowledging a deep shift in the political structure of the republic (Ackerman 1991). At this point, the Court recognized that the American people, in a moment of deep political involvement and higher lawmaking activity, had authorized a structural change in the nature of constitutional n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkov, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M governance. Ackerman argues that the decision in West Coast Hotel marked the Court’s acknowledgment of the establishment of a Third Republic. The founding established the first set of constitutional principles, the Reconstruction Amendments initiated of a second set of principles, and the crisis over the New Deal forged a new agreement about the role of the national government in the daily lives of citizens. He thus seeks to show that West Coast Hotel’s significance was its new synthesis of values and its rejection of the reasoning established and embraced by courts in the Middle Republic (Ackerman 1991). His reading sees the case and subsequent New Deal rulings as a synthesis of the principles of the First and Third Republics, the goal of which was to articulate a new meaning for the Fourteenth Amendment in which property was no longer the central focus (Ackerman 1991, 103-4). Thus, even more than other authors, Ackerman reads the case as the start of a new era and as a repudiation of earlier trends.

Like Ackerman, Cass Sunstein identifies a deep change in constitutional structure in the ruling in West Coast Hotel. Sunstein argues that the decision emphasized the Court’s embrace of a new baseline in which workers were entitled to some protection from the state, but like the authors mentioned above, he also reads the ruling as a political choice by the Court (Sunstein 1987). He does not embrace Ackerman’s interpretation of the struggles over the New Deal as heralding a fundamental change in the governing structure, though he does find these struggles to be historically significant. While Lochner had political elements, the Court was attempting to distinguish in a principled way between illegitimate naked preferences on the one hand and neutral legislation for the public good on the other, an effort that the justices abandoned in West Coast Hotel (Sunstein 1993, 41).

For Robert Post, the Lochner era signified the Court’s efforts to maintain the concept of economic autonomy as having a fundamental connection to selfhood, a connection that began to collapse during World War I’s massive disruptions of economy and society (Post 1998). The Taft Court struggled to separate ordinary economic activity from activity subject to managerial supervision, but ultimately failed to do so in a way that had internal coherence (Post 1998, 1528-29). For him, the significance of the Lochner era is its demonstration that constitutional meaning must always overlay national social and economic experience, and when the mismatch between meaning and experience grows too great, constitutional meaning must give way (Post 1998, 1545).

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Novkoy, Julie. Constituting Work E-book, Ann Arbor, MI: Uni of Downloaded on behalf of University of M

As Lochner revisionism has recently become a significant strand in constitutional theory, the comfortable consensus about the Supreme Court’s motivations and actions has collapsed. In revising the post- New Deal consensus, these constitutional theorists have suggested that the Lochner era was transitional, a necessary period of adjustment between the upheavals of the Civil War and the national crisis of the Great Depression. While these views all differ, they reject the idea that the justices were simply imposing a dead economic vision on the nation, suggesting instead that the Lochner era marked the Supreme Court’s efforts to harmonize an existing analytical framework with swiftly changing economic and social realities.

Recent historical work has also challenged the post-New Deal consensus. As with recent constitutional theory, the constitutional historians do not agree about the fundamental meaning of the Lochner era and its demise, but they do agree that the doctrinal pathways that the Supreme Court created were meaningful primarily in their grappling with problems of political and economic development. They also reject a purely political interpretation of both the Lochner era and West Coast Hotel’s repudiation of it.

Howard Gillman is probably the most significant exemplar of the historical school. For Gillman, the problem of Lochner rested upon the courts’ well-established reliance on the principle of state neutrality and their aversion for class legislation, doctrinal conceptions with deep roots in nineteenth-century jurisprudence. In the nineteenth century, courts determined that so-called class legislation was an anathema because it benefited only a segment of society rather than the whole, the courts making no distinctions among the classes that might be benefited. The power of this overarching doctrinal framework was strong enough to enable the courts to maintain it through the early twentieth century with only marginal adjustments until the collapse of the distinction between “partial” and “public purpose” laws in the crucible of the New Deal. With ideological roots going back to the framing, the commitment to neutrality on the part of the state locked the courts into an increasingly problematic stance with respect to the emergence of large-scale capitalism. Denial of the legitimacy of class legislation left no room for protection of groups rendered newly vulnerable in a large-capital economy and thus allowed for little amelioration of capitalism’s worst effects.

In Barry Cushman’s analysis, the key moment in constitutional development was the Court’s ruling in Nebbia v. New York in 1934, n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor

Novkoy, Julie. Constituting Work E-book, Ann Arbor, MI: Uni Downloaded on behalf of University of M which upheld New York’s regulation of prices for milk. He claims that this ruling marked the abandonment of laissez-faire constitutionalism and the loss of the older divisions between public and private, undermining the courts’ theoretical bases for invalidating protective measures (Cushman 1994, 84-105). For him, the failure of early New Deal legislation in the courts was a result of two factors. First was poor drafting on the part of the members of Congress and their aides who wrote the early statutes of the New Deal, and second was the inept defense that the Justice Department mounted when these laws faced constitutional challenge (Cushman 1994). In supporting his interpretation, Cushman shows that the Court had reached its decision in West Coast Hotel before the announcement of the Court-packing plan and that the Court had no reason to perceive President Roosevelt as a serious threat to its institutional role. Nonetheless, Cushman sees the case as a watershed moment in constitutional history, largely because it marked the moment at which more carefully drafted statutes that received more strategic presentations in the courtroom began to succeed.

Historians who view West Coast Hotel as a significant break with past jurisprudence often identify Lochner and its progeny as the source of the problem. The most useful understandings of Lochner for my purposes are those that see the case as a response to industrialization and the growing battles between capital and labor, since, as I shall demonstrate, the problematic place of women in the new industrial order significantly affected the development of the doctrine. For historians such as John Semonche, the Supreme Court’s decision in Lochner marked the difficulty American law had in dealing with emerging large corporations, and the era of economic substantive due process marked the courts’ struggles to assimilate large corporations into an existing legal framework (Semonche 1978). Morton Horwitz sees Lochner as the Court’s way to use abstract values such as freedom of contract to impose concrete burdens on disempowered workers (Horwitz 1993). William Forbath argues that the ruling played an important role in blocking the rise of a radical labor movement in the United States (Forbath 1991). Likewise, Charles McCurdy interprets the case as providing a disingenuous separation between employment contracts and other types of contracts (McCurdy 1984). Other authors? have studied the

2. Muhammed Kenyatta interprets it as establishing a new separation between private and public law (Kenyatta 1987). Balkin reads Lochner as a conceptualist adventure; he argues that the courts in this period maintained allegiance to abstract concepts in the face of contrary empirical data (Balkin 1986).

n: Gender, Law and Labor In the Progressive Era and New Deal Years. s, 2001, https://doi.org/10.3998/mpub.17391. n, Ann Arbor doctrinal elements of the Supreme Court’s ruling, as well as the parties and groups involved in the litigation.3

Recent interpreters of Lochner have done well in explaining the case’s roots in the labor politics of the early twentieth century rather than simply reading the opinion as an indefensible commitment to wooden doctrine. In these interpretations, the case reflects the struggles between newly organized labor, as labor interests sought to exercise their muscle legislatively, and corporate interests, which had a good deal of control over the courts. These readings, however, imply a complete discontinuity between Lochner and West Coast Hotel and do not acknowledge the extent to which the intersection of women’s history and labor history relevant to the outcome in Lochner still played a role in driving the reasoning in West Coast Hotel. This relationship only becomes clear when feminist investigations of women’s labor history are incorporated into the analysis. These interpretations thus recognize that the struggle of the 1930s was about the issues at stake in Lochner, but they do not fully acknowledge the extent to which the Supreme Court’s 1937 solution to the problem was likewise linked to jurisprudential trends that they would identify as Lochner’s progeny.

Centering Gender as a Means of Rethinking West Coast Hotel

Both the traditional and revisionist interpretations of West Coast Hotel and Lochner portray West Coast Hotel as a complete repudiation of the principles at stake in Lochner, focus on judges and on Supreme Court justices in particular, and fail to recognize the role of gender in both cases. The authors discussed above see the two cases as largely discontinuous and antithetical. All argue that in order to understand the tension between the cases, one must focus primarily on the dynamics of the Supreme Court and its relationship to the other branches of the national government. In these interpretations, the justices of the Supreme Court appear to be the primary shapers of doctrine, though they may at times respond to political pressures or to the existence of a constitutional moment in Ackerman’s sense.

3. Both Kens and Bewig focus on the facts of the case, developing deeper understandings of the parties and their backgrounds. Kens (1995) explores the beliefs and backgrounds of the principal actors in the case, demonstrating their lack of faith in the economic system. Bewig (1994) explains the role that the journeyman bakers’ association played in the case, developing his contention that the bakers used rhetoric that emphasized community values rather than individual freedoms.

Novkoy, Julie. Constituting Workers, Protecting Women: Gender, Law and Labor In the Progressive Era and New Deal Years. E-book, Ann Arbor, MI: Univer: Press, 2001, https://doi.org/10.3998/mpub.17391. Downloaded on behalf of University of Michigan, Ann Arbor

While the modern scholar can never know the motivation behind the Court’s change of heart, this book will show that the shift in reasoning was not simply a political, jurisprudential, or even an ethical choice, nor was it simply a response to better statutory drafting and maneuvering on the part of Roosevelt and the New Deal Congress. While these elements probably had an impact on the outcome in West Coast Hotel, they cannot come close to explaining the opinion’s historical context and reasoning. Contrary to the above explanations, the earthquake of 1937 was heralded by prior tectonic shifts.

The analysis to come will show that, rather than being an entirely new constitutional moment, West Coast Hotel represented the logical extension of a line of development that had started before the turn of the century. Investigating the case’s historical roots reveals that it was as much a backward-looking decision as it was a new beginning. The key element in West Coast Hotel was not the conflict between legislative and judicial authority. It was not the repudiation of challenges to progressive legislation by conservative judicial actors who were clinging to an outmoded philosophy of substantive due process, a term that was not even in widespread use until the 1950s.4 It was not even the tension between the Supreme Court and the other branches of the federal government.

Rather, the reasoning in the case reflected the Court’s complicated resolution of a debate over women’s roles as laborers. Read in this way, the case represented a general extension of standards that had evolved to analyze the place of women in the workplace. The innovation of the case was its extension of a female standard to all workers, but even this development had been foreshadowed by earlier rulings in the state high courts. Rather than asking about the political, social, or ethical incentives for the Court to reverse itself, we must inquire into the development of the framework that the Court articulated in West Coast Hotel and explore the process through which the Court was finally convinced to extend this framework beyond its initial application to female