Sisters in Law

To my sister, Judith R. Collen, who, in
1948
, taught me how to read, and has been here for me ever since. And to my daughter Sarah Shapiro, Philadelphia lawyer, and her daughters, Sylvie and Sydney, who will live, thank fully, in a new world.

Women's names and titles matter. They are so hard won. The convention in journalism is to add the title Justice when introducing a Justice or when the role is particularly meaningful to the content of the text. Otherwise, Justices are referred to by their last names—Rehnquist, Burger—like any other public figures being discussed. Obama. Biden. I have followed this custom except where another speaker refers to them in some other way.

Unlike the male figures who shape the norm, my subjects had different names when they were young—Day and Bader, rather than O'Connor and Ginsburg. When discussing the youthful Sandra Day and Ruth Bader, I usually use their first names. Even Supreme Court justices were kids once.

By the time the nation celebrates the birth of its democracy each Fourth of July, the nine justices of the Supreme Court have mostly left town. But before departing the capital for their summer recess, they must first decide all the cases they have heard since their current term began the previous October. The hardest, most controversial cases, where the unelected Court orders the society to change in a big way, are often left to the end. As the days for decision tick away in late June, the tension in the courtroom is as hot and heavy as the Washington summer air.

On the morning of June 26, 1996, Justice Ruth Bader Ginsburg, the second woman appointed to the high court since its founding, slipped through the red velvet curtain behind the bench and took her seat at the end. Five places along the majestic curve sat Justice Sandra Day O'Connor, since 1981 the first woman on the Supreme Court, or the FWOTSC as she slyly called herself. Each woman justice sported an ornamental white collar on her somber black robe, but otherwise there was no obvious link between the First and Second, any more than between any of the other justices. On that day, however, the public got a rare glimpse at the ties that bound the two most powerful women in the land.

Speaking from the depths of the high-backed chair that towered over her tiny frame, Justice Ginsburg delivered the decision of the Court in
United States v. Virginia
. From that morning in June 1996, Virginia's state-run Virginia Military Institute, which had trained young men since before the Civil War, would have to take females into its ranks. The Constitution of the United States, which required the equal protection of the laws for all persons, including women, demanded it.

Women in the barracks at VMI. Women rolling in the mud during the traditional hazing, women with cropped heads and stiff gray uniforms looking uncannily like the Confederate soldiers VMI had sent to the Civil War a century before. Six of Ginsburg's “brethren” on the Court agreed with her that VMI had to admit women, but the case was much more contentious—and momentous—than that robust majority of seven reflects. Until that day, VMI had been the shining symbol of a world divided between men's and women's proper roles. Before the case got to the Supremes, the lower federal courts had supported VMI's sex-segregated ways. For years, opponents of feminism used the prospect of women in military settings as the prime example of how ridiculous the world would become if women were truly treated as equal to men. VMI was one of the last redoubts. And now
Justice
Ginsburg, who, years ago as Lawyer Ginsburg, had been the premier advocate for women's equality—the “Thurgood Marshall of the women's movement”—was going to order the nation to live in that brave new sex-equal world.

Few people listening knew that Ginsburg got to speak for the Court that morning, because her sister in law, O'Connor, had decided she should. After the justices voted to admit women to VMI at their regular conference, the most senior member of the majority had the right to assign the opinion to any justice who agreed. He assigned it to the senior woman, Sandra Day O'Connor, but she would not take it. She knew who had labored as a Supreme Court lawyer at the American Civil Liberties Union from 1970 to 1980 to get the Court to call women equal. And now the job was done. “This should be Ruth's,” she said.

On decision day, justices do not read their whole opinions, which can often run to scores of pages. That morning, Ginsburg chose to include in her summary reading a reference to Justice O'Connor's 1982 opinion in
Hogan v. Mississippi
, which had prohibited Mississippi from segregating the sexes in the state's public nursing schools. O'Connor's opinion for the closely divided court in
Hogan
, Ginsburg reminded the listeners, had laid down the rule that states may not “close entrance gates based on fixed notions concerning the roles and abilities of males and females.” And then Ginsburg, the legendarily undemonstrative justice, paused and, lifting her eyes from her text, met the glance of her predecessor across the bench. She thought of the legacy the two were building together, and nodded. Justice Ginsburg resumed reading the opinion.

Every woman in America was in the courtroom that June day in 1996. Whether you were a Supreme Court lawyer or a stay-at-home mom, pro-choice or pro-life, single or married, having sex in the city or getting ready for a purity ball, in their journey to that day, and on that day, these women changed your life. And so of course changed the lives of men as well. Justices O'Connor and Ginsburg have a stunning history of achievement in a wide range of legal decisions. But
Sisters in Law
tells the story of how together at the pinnacle of legal power they made women equal before the law. They argued for equality, they were the living manifestations of equality, and, because they took power before the revolution was over, they were in the unprecedented position of ordering equality. When women are treated as equals, as Gail Collins memorably said in her bestselling book, “everything changes.”

When I graduated from law school in 1969, one of seven women in a class of 150, to start my career as the only female associate in my firm of sixty, the world of the law was the last place where I expected to see change. Interviewers had felt free to tell me their firms did not hire women and did not care if I had made law review. When I stood up to argue my first case in the Supreme Court seven years later, there were just the Nine Old Men. But starting with the admission of serious numbers of women to law school in 1967 and certainly by the time of the Supreme Court decision in
Reed v. Reed
in 1971, which was decided thanks in part to Ginsburg's work at the ACLU, the world had begun to change. Laws saying that women were not equal to men (or that men were not as worthy as women) were struck from the statute books, and part of the stereotyped thinking about women's lives went down the drain with them. In 1981, ten years after Ginsburg began her crusade at the ACLU, President Ronald Reagan appointed an obscure Arizona appellate judge, Sandra Day O'Connor, to the Court, and the campaign for women's equality picked up a doughty and determined role model. It was okay to be first, said O'Connor when the word of her appointment came. But you don't want to be the last.

As they litigated for and modeled the possibility for women to succeed—at the law and in the larger world—my world changed exponentially. I went from being an exotic token to a pretty normal player in the world of law. Of course, they were not personally responsible for the explosion of women entering the legal profession in the 1970s. But they probably mattered more than anyone else. The next time I stood before the Supreme Court, in 1982, Justice O'Connor looked back at me. She did not rule my way, but I was still glad she was there. When I began to write about the women's movement, as a law professor and a philosopher, I had Ruth Bader Ginsburg's stirring invocations to women's equality as the raw material of my analysis.

All movements have heroes. Who gets to the pantheon is often in dispute. But not in this case. Neither of them is perfect, of course, but Justices Ginsburg and O'Connor are unambiguous heroines of the modern feminist movement. And everyone needs heroes. My journey to the Supreme Court began when I found my models in the little public library behind my elementary school in Cleveland, Ohio. To my eternal good fortune, the library carried a whole bunch of biographies for girls. Florence Nightingale; Jane Addams; Julia Ward Howe, who wrote “The Battle Hymn of the Republic”; Anne Carroll, who helped devise military strategy for U.S. Grant; Lucy Stone and then all the suffragettes. By the time I finished the story of Susan B. Anthony, my life course was set. Sandra Day O'Connor and Ruth Bader Ginsburg are the Jane Addamses and the Susan B. Anthonys of the succeeding generations.

Each had a long, hard journey to the place where their stories peaked. Forty-plus years before the announcement of the decision in the VMI case, Justice O'Connor, then a new law school graduate, had been offered a position as a legal secretary. When Justice Ginsburg arrived at Harvard in 1956, the Law School's dean asked all nine women students in her class to explain how they justified taking up a place that would otherwise have gone to a man. In the intervening forty years, O'Connor and Ginsburg traversed that hostile world to the highest point in the profession. To learn what they did, and how they did it, is to view two very different—and surprisingly similar—journeys to a flourishing life.

O'Connor was appointed in 1981 by a Republican president swept in by a landslide; Ginsburg was put on the Court by a centrist Democrat who had not even won a majority of the popular vote. They came from completely different backgrounds: Republican/Democrat, Goldwater Girl/liberal, Arizona/Brooklyn. Ginsburg, the brunette, opera-loving New Yorker, used to call her blond colleague the Girl of the Golden West. When O'Connor was appointed, Ginsburg, after ten years in feminist activism, did not even know who she was.

They were not soul sisters. O'Connor, the uncomplaining, open-faced, cheerful, and energetic westerner, was easy for her brethren to accept in 1981. As Justice John Paul Stevens said four decades later, “she never complained or asked for special treatment. And she got her work in on time; she never held us up.” Ginsburg, the brilliant, solitary alumna of the feminist movement, brought an unwavering vision of the Constitution and a lifetime of experience in movement politics when she arrived. She chose chambers on a different floor than all the other justices, in order to get nicer digs. If she didn't get what she wanted from the Court, she openly pitched an appeal to Congress or, using the media, to public opinion.

But they were sisters in law. Ginsburg has said a thousand times how glad she was that O'Connor was there to greet her in 1993. And how lonely she was after her colleague retired twelve years later. This is the story of how such an unlikely pair came to nod at each other from the highest tribunal in America, as they finished the work of transforming the legal status of American women.

How did they do it? First, they were lawyers. They did not lead a social movement in the conventional sense, marching and sitting in. O'Connor's only formal “feminist” affiliation was with the exceedingly mainstream Associations of Women Judges. Ginsburg, the Thurgood Marshall of the women's movement, was not a conventional movement activist either. She was nowhere to be seen in the legendary Women's Strike for Equality in 1970 or, indeed, marching for anything. When she spoke or wrote, it was almost always in a professional context—women judges, women lawyers, the bar association, law school events, essays in law reviews. Ironically, toward the end of her life, she became an icon on that most populist of mediums, the Internet.

They chose to become lawyers when there was not even a whisper of a women's legal movement, but their choice of career placed them perfectly to make a social revolution through the law when the opportunity arose. Social revolution through law is a particularly American phenomenon. As the preeminent commentator on American democracy, Alexis de Tocqueville, put it two centuries ago, “Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” Since the Civil War, most American social movements have relied on the potent equality-enforcing constitutional amendments passed in the wake of that engagement. In the 1940s and '50s the lawyer (later Justice) Thurgood Marshall had led the most successful such initiative—using the Civil War amendments to enforce racial equality through the courts. When Congress passed the Civil Rights Act in 1964, the racial legal movement gained another arrow for its quiver. All succeeding legal movements to some extent emulated Marshall's strategy of social change through legal revolution.

Both O'Connor and Ginsburg were part of the American elite—they went to Stanford and Harvard and Columbia Law Schools. Unlike mass social movements, legal social change movements are heavily top-down. They invoke the most unrepresentative institutions, the courts, often the life-tenured federal courts, and they are carried out by people, like both the women justices, of a rarefied mind-set and privileged social class.

When O'Connor and Ginsburg emerged from their private worlds of practice and teaching onto the public stage in the early 1970s, the women's movement was actively moving to become the next legal social movement. The Civil Rights Act of 1964, passed in the wake of the racial social movement, also barred discrimination on the basis of sex, and women's movement lawyers were starting to bring cases under it. The resurgent women's movement even revived an old project from the 1920s. Right after women won the vote in 1920, the most radical of the suffrage leaders, Alice Paul, proposed an Equal Rights Amendment for women as the only way to attack the whole web of discriminatory laws at once. Despite Paul's half century of effort, the ERA had gone nowhere. Then, in the heady days of the 1970s, anything seemed possible.

The two rose to be leaders in the movement, at first Ginsburg directly and O'Connor by example. When a moment is ripe for legal social change, there are often many lawyers who would like to lead it. Only some ascend to positions of power, and only some who ascend lead the movement itself to success. These two did ascend and did succeed. Ginsburg was a self-conscious legal movement leader. From 1972 to 1980, she ran the preeminent women's legal group, the Women's Rights Project of the American Civil Liberties Union, and she taught courses in women's rights at Columbia. Even after she became a federal judge in 1980, she continued to speak and write on women's rights. During those years, Justice O'Connor advanced women's equality in politics, although without embracing the women's movement formally as Ginsburg had. After O'Connor was selected for the Supreme Court in 1981, however, she became the most famous symbol of a lived feminist existence on the planet. And she was the owner of a precious vote on every Supreme Court decision on women's rights, starting with the crucial fifth vote in
Hogan v. Mississippi
in 1982
.
In 1993, Ginsburg joined her at the pinnacle of power. In the years following O'Connor's retirement in 2006, when the conservative Court turned its back on women's rights, Ginsburg, the eighty-something feminist, became the icon of resistance to the backlash.