Balkinization  

Thursday, July 03, 2025

The Mystery of Birch Bayh's Amicus Brief in Reed v. Reed

Gerard N. Magliocca

I am in the Birch Bayh Archive at Indiana University mining gold for my next book, which will be on the Senator's Subcommittee on Constitutional Amendments. And I've come across a puzzle.

Senator Bayh filed an amicus brief in Reed v. Reed on behalf of the National Federation of Business and Professional Women's Clubs. This is the only time that Bayh filed a Supreme Court brief as a Senator. The brief is very interesting and advocated heightened scrutiny for sex discrimination.

If you look on Westlaw, though, there is no record of this brief. Indeed, a comparison of the Westlaw report of Reed v. Reed and the U.S. Report of the case shows that the Court's reference to Bayh's brief is missing from the Westlaw version. More perplexing is that I see no law review references to Bayh's brief. I only came across the brief because there are allusions to it in the Bayh files.

Here is where you can get the brief if you're interested. My initial impression is that Bayh, who of course authored Title IX and the ERA, should receive even more credit than he does as a constitutional thinker. 


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