Sisters in Law (14 page)

And it worked. Criminal defendants being so much more important to the Supreme Court than women citizens, Clark could get Powell to move the law toward eliminating sex discrimination in jury selection without confronting what he was doing in the sex-role arena. Once the Court said discouraging women from jury service was questionable, the society would stop doing it. The social belief that women did not belong on juries would no longer be buttressed by the law. Thus this canny female law clerk accomplished with a flank attack what Ginsburg's direct litigation strategy might have failed to do on its own.

Powell represented the slice of Supreme Court opinion that
Ginsburg had to win. Justices Rehnquist and Burger mainly opposed the women's legal revolution, and Justices Brennan and Marshall were mainly in favor. Justice Douglas was sick. The critical swing voters—increasingly conservative old-school members of the court—tended to go where Powell went. Only one of Ginsburg's five cases was close. The four central members of the Court either sniffed out social revolution and opposed her or they felt safe enough to go along. Powell seemed to be the bellweather, and Penny Clark had given him every reason this crucial term to take a narrow but not entirely hostile stance. It's not like Powell was naturally progressive on women. “This was not the first or the only time in our chambers that one of us persuaded him away from his first inclination,” she recalls with satisfaction decades later. “He told his clerks I'll discuss anything until I vote.”

Unknown to her then, when Ruth Bader Ginsburg donned a bright red suit and put a matching ribbon around her ponytail two weeks into the term to present the oral argument in the case against Louisiana's stereotyping of women jurors, in
Edwards v. Healy
, the Court was already primed to duck the case as moot. Too bad. She had been waiting to overturn the Court's 1961 decision in
Hoyt v. Florida
since she read it the first time. The all-male jury in
Hoyt
had convicted the defendant, Gwendolyn Hoyt, of killing her unfaithful husband. They rejected her plea of temporary insanity, which was the only defense available to a beleaguered and abused woman at the time. The unspoken assumption was that a woman on the jury might have recognized the legitimacy of that defense. Dismissing Hoyt's challenge to the all-male jury, the Supreme Court had announced unanimously that women were “the center of home and family life,” which was reason enough for the state to keep them from the jury pool.

Ginsburg hated
Hoyt v. Florida
. When she was testifying at the hearings for her own confirmation to the highest court in 1993, she reached back to
Hoyt
to explain to the Senate why it was so important to change the way the Courts treated women:

“The Court said,” Ginsburg told the members of the Senate Judiciary Committee, “Florida's scheme was pure favor to women.
They had the best of both worlds. They could serve if they wanted to. They had only to sign up in the clerk's office. They didn't have to serve if they didn't want to, so what was the complaint about? Women were treated better than men. Apparently, little thought was given to Gwendolyn Hoyt and the murder charge affirmed in her case.”

Maybe Ginsburg hated
Hoyt
because the 1961 decision coincided with her experience of not standing a chance in the world of all-male faculties and Supreme Court clerkships even as valedictorian of her law school class. What could have been a charming anachronism like
Bradwell v. Illinois
, the nineteenth-century case allowing states to exclude women from practicing law, was instead about women of her own time. In describing the case to the Senate, she uncharacteristically dripped resentment that such a decision would come from “the liberal Warren Court.” From the awakening of her feminist consciousness in 1970 on, almost all her speeches referred to the astonishing survival into modernity of a decision that assumes women had no civic duty to judge—or right to be judged by—their peers.

The Court held Ginsburg's case for months until the new Louisiana law repealing the special treatment of women jurors came into effect and then dismissed it as moot. Thus Ginsburg did not get the ringing condemnation of the sex-segregated society she sought. However, as Clark's memo anticipated, the Court could not avoid the issue entirely, because it had also agreed to review the criminal defendant Billy Taylor's challenge to his conviction by an all-male jury—the product of Louisiana's not calling women unless they volunteer.

The Court reversed Taylor's conviction. We don't have to decide, Justice White wrote for the near-unanimous Court in
Taylor
, whether protecting women is a good idea or not. Protecting women against having to serve on juries is just not a good-enough idea to justify nearly sending someone to death with a jury that does not remotely resemble the community he comes from. In deciding the jury rights case, Justice White did say that the hated precedent,
Hoyt v. Florida
, was no longer good law: “If it was ever
the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed. . . . What is a fair cross section at one time or place is not necessarily a fair cross section at another time or a different place.”

Ginsburg should have been cheering the decision. The problem, of course, was that the Court ignored Ginsburg's ambitious equal-protection argument for respect for women's citizenship and the end to sex-role stereotypes. Instead the Court issued a narrow decision about a criminal defendant's highly protected right to a representative jury. While White's opinion was not a perfect outcome, every time a Supreme Court opinion recognized the altered social landscape for women, Ginsburg moved closer to her goal of an outright prohibition of all gender distinctions. In a system that runs on guidance from the past, such as the American legal system, every favorable word in an opinion is a potential building block.

WOMEN ARE WORKERS, MEN ARE PARENTS, BABIES ARE BABIES

Talk about appealing plaintiffs: in 1972, Stephen Wiesenfeld's wife died in childbirth, leaving him the sole parent of an orphan son, Jason. Wiesenfeld made up his mind. He would be both mother and father to Jason. With government survivor benefits, he could stay home and raise the child. But Social Security said no. The United States government gave such support only to female people, like Justice Douglas's mother.

Had Stephen Wiesenfeld not existed, Ruth Bader Ginsburg might have had to invent him. He was the perfect plaintiff. As one of Ruth's student assistants put it, “a man whose wife died in childbirth, something that doesn't happen a lot in the latter part of the twentieth century, with a BABY . . . WIDOWS AND ORPHANS—you can't get any better than that!” With an MBA in business, Wiesenfeld ran a little business, but mostly he had stayed home and run the household while his schoolteacher wife, Paula, earned the income subject to Social Security. Now Social Security was depriving him of the benefit of Paula's labors. Wiesenfeld was no Melvin Kahn, an unpleasant representative of what seemed to be men's lib, looking for a tax break on the back of Justice Douglas's mother. Stephen Wiesenfeld was her favorite client.

When Social Security turned him down, Wiesenfeld knew exactly what it meant. After all, he grew up in a “liberal, free thinking home and was part of equality for all.” He wrote a letter to the
editor of his local paper in New Jersey, asking if Gloria Steinem knew about what was happening to him! He was not trying to be facetious; he was actually hoping to attract some help. Wiesenfeld hit the jackpot. A colleague of Ginsburg's from Rutgers saw the letter and sent it on to her. “Meeting [her] was exactly what I had in mind when I wrote the letter,” he crowed.

After months of correspondence and telephone calls, Stephen actually did meet Ginsburg, laden with document cases, on the train to the lowest-level federal court in Trenton for the first argument in his case. Can I help you with all those papers? he asked. “I learned a little lesson,” he recalls from that first encounter, “and I never asked her again!” He should have known. From their first telephone call, “She was always very much in control and knew exactly what she wanted to say. Very bright, very alert person, very sharp. You could talk to her and . . . and she knew exactly what she wanted to ask and she was able to describe to me exactly what the procedures would be.” Very precise female, as Justice Blackmun had noted. Ginsburg of the ACLU won the case in the Trenton court. Indeed, the court held that such sex discrimination was like race, and only a compelling governmental interest could justify it, giving Ginsburg the decision she had missed by one vote in
Frontiero
. The judges struck down the Social Security law as unconstitutional. But nothing, as she told Wiesenfeld, mattered except what the Supreme Court would do when the government appealed its loss.

A NOTE ON GATEKEEPERS

As she predicted, the federal government appealed the Wiesenfeld decision to the Supreme Court. The Court sets up a lot of barricades against the tide of appeals that washes over them every term. Since the Court has a lot of power to refuse to hear cases, it winds up turning down most of the initial requests. In 1973, in an effort to cut back on the amount of work they did, Justice Burger set up a pool of clerks to look at the requests for Supreme Court review. All the justices but Stevens, who was unwilling to rely on the opinions
of others, assigned one of their law clerks to the pool. Under the pool procedure, which continues to this day (Justice Alito is currently the only holdout), each of the petitions for Supreme Court review goes randomly to one of the eight law clerks, who writes a preliminary memo about the case, rather than each of the nine justices having a clerk look at every request separately. The preliminary memos advise whether the Court should consider addressing the case in full, or whether it should refuse to hear the appeal at all or deal with it summarily, without briefs and argument.

Since the creation of the pool, complaints have surfaced periodically that a case's fate—whether it even gets heard at all—depends too heavily on the luck of the draw. The single clerk of a liberal judge, the research reflects, will treat a liberal claim very differently than a single clerk from a conservative judge. All the justices may, of course, review any appeal themselves, but their natural reluctance to invest the time means the pool plays a substantial gatekeeping function in determining what the Court hears.

The Court's deliberations in Stephen Wiesenfeld's case, preserved in Justice Powell's papers, give an inadvertent look into the politics of the pool and the gender politics at the Court at this crucial moment. Because a three-judge federal court had struck down a federal law as unconstitutional, the United States government was the defendant, and the government had a right to appeal to the Supreme Court. Unlike most requests for review, where there is an appeal of right, the Court could not refuse to address the merits of what the three judges did. However, it could still summarily affirm (good for Ginsburg's case) or reverse (bad) the lower court without full briefing and argument. Or, of course, hear it in full.

Ginsburg had the bad luck to have the government's appeal drawn by John E. O'Neill, the pool clerk from the chambers of the most conservative justice sitting on the Court in 1974, William Rehnquist. Rehnquist had cast the sole negative vote in her near-unanimous victory in
Frontiero
, the air force spouse case. O'Neill's pool memo suggested the Court do the worst possible thing for Wiesenfeld—reverse the favorable opinion summarily, on the authority of the Court's hostile decision in
Kahn v. Shevin.
Since
any judge or clerk reading the memo would have to ask about the Court's recent favorable decision in
Frontiero
, O'Neill innocently adds a line: “Cf.
Frontiero v. Richardson
.” The letters “Cf.” in Court talk mean, “of course, you might want to take a look at your other sex-discrimination decision before you toss Ginsburg out.”

O'Neill's recommendation is a little startling, in light of the Supreme Court's two essentially inconsistent decisions on sex discrimination in two years. In
Frontiero
, the Court saw the woman as the soldier, getting benefits for her husband that were not as good as those that male soldiers got for their wives. That looked like sex discrimination. In
Kahn
, the Court saw the woman as a widow, getting a little more than a much more fortunate man. That just looked like good sense. The name of the game in a legal movement such as the women's movement is to get the Court to lay down as much law as possible in your favor rejecting distinctions before a distinction the Court likes—such as widows needing a property tax break versus greedy widowers like Melvin Kahn—comes up in a case. Ginsburg was the world champion at hooking the Court into voiding laws that distinguished between men and women before they realized the unpleasant social consequences of the unisex world they were setting up. She got the hook into the Court when she got it to say that wives could not be presumed to be the dependents in
Frontiero
. But she could not stop the Court from saying that widows could be presumed to be needy old folks in
Kahn
.

Unless the Court is prepared to reverse one of the inconsistent cases, it usually ignores one as it goes about making the ensuing decisions. O'Neill's memo assumes the Court had chosen to follow the discriminatory decision in
Kahn
, and that Ginsburg's victory in
Frontiero
was a dead end. The Court, he advised, did not even have to hear Stephen Wiesenfeld's case. Had the Court followed his advice, that decision would have seriously threatened Ginsburg's careful campaign to apply the equality amendments to women.

O'Neill failed to stop the Court from taking a good look at
Weinberger v. Wiesenfeld
. At their conference, a majority of the justices, including O'Neill's boss, Rehnquist, voted to move the case to full briefing and argument. This was not necessarily good news for
Ginsburg, as the Court may well have been thinking of hearing it to undo her victory in the court below, but it was better than what O'Neill had suggested. Justice Powell noted in his papers that he wanted to hear the case in part because he doubted the correctness of the trial court decision “in view of
Kahn
.” He was okay with Social Security preferring widowed mothers to widowed fathers. He was not even about to say it was irrational for the government to make it harder for Stephen Wiesenfeld to care for Jason than if he'd been a widow.

In his notes for the case, Justice Powell speculated that a stay-at-home dad must be “indolent.” Justice Blackmun, too, thought at first that
Kahn
should carry the day. After all, if it's constitutional for Florida to favor widows a little, why isn't it constitutional for Social Security to favor female survivors a little? Despite the victory in the lower court, Ginsburg knew her days of asking the Court to treat sex like race were over. So she walked away. Just give us a little more of a hard look, she suggests in her brief. Not as seriously as if the law confined benefits to white people, say, but a harder look than just asking if the law is crazy.

In the run-up to oral argument, Powell got another memo from Penny Clark. She knew how hard her task would be: “His wife was in charge of his household, and his assumption was that almost no man would choose to stay home and take care of his children. [Jo Powell] lived the gracious life of the wife of a noted lawyer in Richmond, Virginia. His view was, okay, we men are in the office and this frees up our wives to do what they do and maybe if a man would do that it would seem indolent.” To Powell, stay-at-home parents were tennis-playing Virginia matrons, not harried single dads trying to keep a babysitter so they could supplement their income a little. So much for Stephen Wiesenfeld.

In her preterm memo on sex discrimination, Penny Clark had advised Powell that men should not be allowed to sue to invalidate legal schemes that benefit women. But this time, the Social Security scheme's beneficiary was not so clear. Widows gained over widowers under the scheme, it was true, but at the same time dead women workers lost out to dead male workers in terms of what
they left to care for their families. So, in some way, the dead Paula Wiesenfeld was the real plaintiff, just like the female soldier in
Frontiero
.

Justice Powell might be sympathetic, Clark thought, to the argument that the law was plain-and-simple discrimination against the women now venturing into the workplace. And so she wrote in her memorandum to the justice, this was not about widows and widowers. This law discriminated against female wage-earners, who paid Social Security but didn't leave as much to their families to use as male workers did. After all, her memo continued, among workers, there was a “widespread practice of taking Social Security benefits into account in calculating life insurance needs.” “True,” Justice Powell wrote in the margins, seeming to soften slightly from his initial response to the case. When he went to oral argument, he specifically recorded in his notes that Ginsburg did argue that the discrimination was against the working schoolteacher Paula Wiesenfeld.

Brennan's female law clerk took a different tack. Clued in by the extensive history of law of surviving parents' benefits set out in Ginsburg's brief, Marsha Berzon framed an argument for Brennan that the law was really intended to protect families. Hence, the damage to baby Jason Wiesenfeld by depriving him of the support of whichever parent survived was the key to the outcome.

Ruth Bader Ginsburg did not care which of the many Wiesenfelds the Court chose to protect; she just wanted to win the case. She took time out from contemplating the “blue skies and snowcapped mountains” while visiting “Wyoming, the Equality State” to answer a worried letter from Wiesenfeld. “The Florida widowers' case [Kahn] was mine,” she wrote, but “your situation is clearly distinguishable. . . . Perhaps if the Supreme Court had heard your case first, the Florida case would have gone in our favor,” the canny strategist fretted. She was even ready to settle for a tie for Wiesenfeld. Justice Douglas was at death's door and not sitting, leaving eight justices on the bench, and a 4–4 split would have left the favorable lower court opinion standing, allowing her to fight the terrible precedent in
Kahn
another day. When she sat down at the table
reserved for counsel on January 20, 1975, she had at her side Stephen Wiesenfeld. Baby Jason would be Ginsburg's pet for the rest of her life. In the ensuing years, she guided his steps to law school and flew to Florida to perform his wedding ceremony.

When the justices met to discuss Stephen Wiesenfeld's case, Brennan was ready with Berzon's family-centered history of the Social Security survivors' law. “Goal of statute is to provide for children,” he argued at the justices' conference. “This accords with statutory intent.” Brennan attracted the other three justices from before Nixon started appointing—Marshall, White, and Stewart—but it was Lewis Powell, Penny Clark's justice, who provided the crucial fifth vote at the conference. Social Security would no longer discriminate between widows and widowers based on their sex.

Brennan, being the senior justice in the majority, assigned the opinion to himself. Again, as in
Frontiero
, his draft opinion went further than the votes at conference would have suggested was allowed. Exactly as Ginsburg had envisioned five years before, he used the invalidation of a minor discrimination in law not just for Baby Jason Wiesenfeld, but to strike a blow at sex-role stereotypes across society. “It is no less important for a child to be cared for by its sole surviving parent when that parent is male, rather than female,” Brennan wrote. “And a father, no less than a mother, has a constitutionally protected right to the companionship, care, custody, and management of the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection.” Brennan's far-reaching opinion attracted the agreement of Justice Blackmun, who had initially voted against Wiesenfeld, so Brennan had his five votes and didn't care when Powell surfaced with a quibble, which ultimately became a concurring opinion.