In We the Men, legal historian Jill Elaine Hasday shows how lawyers, judges, and lawmakers have created a legal, political, and cultural discourse that forgets women’s struggles for equality and feminist achievements. Erasing women’s contributions, she argues, harms women and perpetuates their disadvantages in American law and society. Even court decisions and major legislation establishing sex equality, according to Hasday, are limited because the dominant legal narrative gives such short shrift to women’s contributions to those landmarks. Other court decisions and American popular culture, in turn, exaggerate the triumphs of legal feminism and thereby mask the inequalities that have endured despite these victories. And antifeminists capitalize on these false narratives about the past to hamper ongoing feminist efforts. It is a vicious cycle, which Hasday attempts to disrupt by revisiting well-known cases about women’s status and foregrounding episodes of feminist struggle and backlash.

There is much to admire in We the Men. Hasday is an engaging writer, deftly weaving a range of legal and historical sources to show persuasively that men in power misapprehended and marginalized women’s contributions, even as they made laws and issued landmark rulings that took steps toward women’s emancipation. The book sits at the intersection of women’s history and legal history. It builds on legal scholarship on the evolution of legal doctrines affecting women’s place in American society, such as sex equality and reproductive rights under the constitution. It draws on historians’ narratives about women’s movements and their advocacy for major changes in American law and public policy. The source material includes Supreme Court decisions (including some of the Justices’ internal memoranda, briefs, and arguments as well as the reported opinions), legislative history (as revealed in congressional debates and hearings), and some contemporaneous narrative accounts of the relevant political struggles (including books and news articles). This historical archive provides evidence that relevant information has been erased, forgotten, or perhaps never known to those (men, as the book’s title indicates) who are making and applying the laws today.

Hasday’s argument emerges through her interpretations of Supreme Court decisions and of political episodes that are the subject of voluminous legal scholarship and competing interpretations. It would have been strengthened had the book taken up the debates engendered by feminist legal and historical scholarship about the contested legacies and meanings of those cases and histories. For instance, Hasday casts Muller v. Oregon as the case that embodies antifeminism, one which should be condemned—along with Lochner v. New York and Plessy v. Ferguson—as one of the worst cases decided (and later overruled) by the Supreme Court. Muller was the case that upheld maximum-hours laws for women working in laundries in 1908, even though such laws were held unconstitutional for male workers in Lochner. In Muller, the Supreme Court acknowledged that “woman’s physical structure and the performance of maternal functions place her at a disadvantage in the struggle for subsistence,” especially “when the burdens of motherhood are upon her.” Therefore, the Supreme Court concluded, special labor legislation to protect women was “necessary to secure a real equality of right.” For Hasday, “Mullerism” is the “premise that women, rather than men, should prioritize domestic roles and responsibilities” (p. 18). Courts’ repeated failure to denounce “Mullerism” is a recurring theme throughout We the Men, demonstrating for Hasday the U.S. courts’ erasure of women’s struggles for equality.

Yet, the actual history of the Muller case and its progeny, as detailed by feminist labor historians, points to a more ambivalent understanding of its legacy. As Nancy Woloch has detailed in A Class by Herself (Princeton UP, 2015), social feminists Florence Kelley and Josephine Goldmark advocated on behalf of working-class women in factories and laundries, along with organizations like the National Consumers’ League, in favor of the result reached by the Supreme Court in Muller. They gathered the sociological data that shaped the Brandeis Brief and helped to craft the brief’s arguments that persuaded the Court to uphold labor regulation to prevent the harmful effects of overwork in industrial settings on women’s bodies. Even Ruth Bader Ginsburg, the iconic hero of American legal feminism, acknowledged Muller’s legacy as mixed and ambivalent in a lecture she gave in 2008, because the legislation upheld to protect women’s reproductive capacity in Muller led eventually to legislation protecting all workers from overwork. When Muller is understood as an important but imperfect step in that historical evolution, vilifying “Mullerism” and the Brandeis Brief would be unhelpful to feminists who continue to struggle today to improve the law and working conditions for pregnant workers. Hasday’s discussion of her most significant example of erasure, woven throughout the book, itself obscures some important strands of feminist thinking about law and women’s’ reproductive lives.

Hasday also revisits the Supreme Court’s sex equality cases of the 1970s and 1980s, which established that sex discrimination under the law violated the constitutional right to equal protection. Such decisions, while they appeared promising for feminists, also allowed many gender inequalities to persist. One explanation for this dynamic is that the courts and popular culture more broadly perpetuated the false belief that feminists won and that women were fully emancipated. Hasday criticizes the Supreme Court for upholding the unequal prosecution of males age 17 and older for statutory rape in Michael M, while declining to hold females equally liable. Hasday casts this approach to statutory rape law as yet another version of “Mullerism,” as the Justices justified the law’s exemption of teenage girls from statutory rape liability on the grounds that they faced greater burdens than males from the risk of pregnancy and thus should not be criminally punished for having sex. Hasday concludes that the Court assumed “women’s disproportionate responsibility for nonmarital children and helped maintain that disparity” (p. 125) by refusing to treat males and females the same for statutory rape liability purposes. Her reading of Michael M and other cases suggests that the law perpetuates inequality whenever it acknowledges women’s disparate burdens in biological and social reproduction to justify the different treatment of males and females—even when that includes more favorable treatment for the sex that gets pregnant.

Yet, this is precisely the logic that Hasday criticizes in the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health, which abandoned the Court’s longstanding recognition of a constitutional right to abortion. Hasday criticizes the Court’s neglect of the “burdens and dangers of pregnancy and childbirth” and the “persistence of employment discrimination against pregnant women and mothers” (p. 143) in that case. The Dobbs majority insisted that women had the political power to change the laws affecting their own reproductive lives. Imagine, in the alternative, the Court acknowledging the social reality of pregnancy significantly burdening women’s health and life prospects—as other constitutional courts around the world have done—to justify an unenumerated right to abortion to enable women to achieve a real equality of right. Such an opinion would be susceptible to assumptions about women’s disproportionate role in reproduction and could reinforce the gender stereotypes criticized as “Mullerism” in earlier chapters of We the Men.

Finally, Hasday’s chapter on Phyllis Schlafly’s defeat of the Equal Rights Amendment (ERA) tells a familiar story of antifeminist women’s effectiveness in America. Schlafly and her heirs capitalize on the narrative of feminist success—namely, that equal rights have already been achieved, thereby rendering the ERA unnecessary and potentially harmful to women who choose traditional roles within the family. We the Men recounts efforts to revive ERA ratification in recent years largely by focusing the story on this opposition (pp.168–170), with no account of the innovative procedural arguments made by feminist politicians and legal scholars in their efforts to keep the ERA alive.

We the Men is a reminder of how easy it is to forget women’s contributions to the struggle for equality, with the result of narrowing the possible paths of future emancipation.