Sisters in Law (32 page)

Ginsburg would not take the risk. She feared losing Kennedy and O'Connor, the weak links among her six votes. At oral
argument, O'Connor had snapped at the Justice Department lawyer for claiming the standard in sex-discrimination cases was still an open question (as Blackmun had said it was just a year before in the jury case,
J.E.B.
). Was the standard still on the table? “Not exactly,” O'Connor said. “The Court has decided a number of cases applying a sort of intermediate scrutiny.” A plurality opinion of four for strict scrutiny would be no better than Justice Brennan had achieved two decades before in
Frontiero
. Ginsburg wanted the broadest majority for women's equality she could get, and O'Connor's agreement on this landmark sex case was disproportionately important to her. And so she invoked the well-established standard that O'Connor described in her opinion in
Hogan
. The state lost because it failed to provide an “exceedingly persuasive justification” for the distinction between the sexes at VMI.

But Ginsburg was never one to waste an opportunity. She would use her big majority in the VMI case to “blur” the difference between the lower standard of review for sex discrimination she had had to accept all these years and the high standard the Court accorded to race. Cherry-picking the decades of decisions inching toward women's legal equality since she started her work a generation before, she wove together the most favorable language from O'Connor's
Hogan
opinion and Kennedy's concurrence in
J.E.B
. and concluded that the Court was now engaged in “skeptical scrutiny of official actions denying rights or opportunities based on sex.”

And so it should be skeptical of VMI's position, too, she affirms, given the sorry history of sex discrimination woven throughout the nation's history. And in Virginia. Wielding Virginia's long and public record of resistance to educational equality for women, the opinion dismisses out of hand VMI's newfound interest in the virtues of single-sex education for all, as manifest in its litigation-driven support for the program at Mary Baldwin College. Although Ginsburg sweetens the demanding sound of skeptical scrutiny with a coquettish reference to “celebrate” the “inherent differences between the sexes,” the concession is just that—an empty, flirtatious smile. Almost no discriminatory scheme can
escape the burden of history she lays upon it. Here, in the midst of the scary cultural revival of arguments for the natural moral uniqueness of women—for good or ill—the Supreme Court justice comes full circle to the work of the liberal philosopher John Stuart Mill, her earliest inspiration and the father of women's equality. Maybe someday women should be treated differently from men as opposed to being treated the same, Mill said in his landmark essay “The Subjection of Women” a century before Ginsburg set out on her quest, but first we must try equality. “Experience cannot possibly have decided between two courses, so long as there has only been experience of one.”

Skeptical scrutiny raised the standard. Had it been scrupulously followed, Ginsburg's refusal to allow women to be lumped together and then treated as a group should have doomed essentially all gender-based discrimination. VMI had defended itself with the argument that most women did not want anything remotely resembling what VMI offered. The Court rejected the argument out of hand: “the question is whether the commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” If even one woman was ready, willing, and able to attend VMI, the policy of exclusion must fall. Ginsburg's antistereotyping dogma was written into law.

Dissenting, Justice Scalia asserted that scrutiny of sex-based classifications now required a perfect fit. If even one woman was suited for the all-male undertaking, the line between the sexes would not hold. He accused his good friend and former D.C. Circuit colleague of enacting strict scrutiny for women without admitting it. Despite the traditional back and forth of opinion and dissent, Ginsburg's opinion never challenges the accusation. And despite her comment at oral argument, O'Connor did not file a separate opinion and said not a word about preserving “a sort of intermediate scrutiny.”

The next year a handful of young women appeared on the VMI campus, hair cropped and sporting hilariously ill-fitting uniform skirts. When the time came, they scrambled up the muddy hill
and made it to the top. Although there were real challenges at the beginning, there are females at VMI to this day.

BY VIRTUE OF THE POWER VESTED IN ME

Ginsburg liked being on the Supreme Court (she called it “the good job”).

Although she held her predecessor there in high esteem, she did not adopt her routine. Ginsburg had the temerity to eschew the morning aerobics classes. In typical Ginsburg fashion, she didn't
criticize
O'Connor's female ritual of early aerobics, she just said the class met too early. And she did not spend anything like the time and energy O'Connor did giving speeches in often obscure places, cheerleading for the American rule of law. It wasn't easy being second to the lively westerner. Ginsburg constantly received requests for appearances or publications from places announcing that O'Connor had already been there or done that. Her secretaries speculated O'Connor had a secret twin sister covering some of the gigs.

But Ginsburg certainly enjoyed the travel that her job enabled her to do. She participated fully in the grand opportunities the justices had to teach and confer abroad, especially during the summers. Wherever they go they are treated like American royalty. Ginsburg's files are full of references to trips to places with good opera companies. In 1998, for instance, she went to the Salzburg seminar on a trip that started with a Mercedes waiting at the airport to take her and Marty to the Imperial Hotel in Vienna and then shuttle them to a private opera performance at the Schonbrun Palace. Good job indeed.

It wasn't all palaces and Imperial Hotels. In 1998, she flew to Coral Gables, Florida, and used the authority vested in her to perform the wedding ceremony for Jason Wiesenfeld, her favorite client's son, who had started the litigation so long ago. Unlike most royalty, when she noticed a $78 error in the tiny hotel bill, she immediately wrote to the bride's father to alert him to the discrepancy. Three months later she was comforting the family as Jason
came down with cancer in his twenties. Ginsburg reassured them that it would eventually pass and shared how she and Marty had gotten through the dark days of his disease themselves. Stephen has a beautiful handwritten card from Ginsburg's chambers with her mother-in-law's advice: “This too shall pass. And butterflies will follow.”

It was a happy time. Jason Wiesenfeld did recover. And Marty began cooking for the Court's spouses' dinners.

In the years after
VMI
, the sisters in law heard almost twenty cases about women. Most involved relatively uncontroversial fine-tuning of the big decisions of sexual harassment and discrimination that had characterized the prior decade. The cases rarely divided the Court closely; most decisions claimed six or more votes for the majority position. It was clear that the Court was moving in the direction of increasing the protection for female plaintiffs in these two important areas of civil rights law.

SWINGING IN THE SCHOOL YARD

A short-lived and rare split appeared between the two female justices in 1998 when, in
Gebser v. Lago Vista Independent School District
, the Court confronted a new issue. Did the civil rights laws prohibit sexual harassment of
students
?

Students were sort of the stepchildren of legal feminism, a movement that began with Betty Friedan's 1963 clarion call to women to get to work. The 1964 Civil Rights Act, which included the revolutionary word “sex” in its protections, was mostly about employment. Early in the game, however, Bernice (“Bunny”) Sandler, a humble lecturer at the University of Maryland, figured out that President Lyndon Johnson's 1968 executive order prohibiting race—and sex—discrimination should apply to schools receiving federal money. The government started investigating Harvard for
its almost entirely male faculty. Columbia Law School noticed that it had no women on board and hired the young Ruth Bader Ginsburg. One of the few female members of Congress, Rep. Edith Green, put Sandler on the staff of the committee updating the Civil Rights Act. Four years later, the protections from the executive order were written into federal law, in a provision called Title IX. Sandler became, as
The New York Times
had it, “the godmother of Title IX.” When Congress was considering Title IX, education lobbyists were so busy worrying about whether schools would have to use female football players they didn't notice there was a sexual revolution in the making. Okay, maybe Harvard Law School would eventually have to hire a Ruth Bader Ginsburg type. But in 1972, when President Nixon signed Title IX, sexual harassment didn't even have a name. Who ever dreamed that dreamy teachers couldn't hit on their worshipful female students? A million academic novels would have to be rewritten.

But as Tocqueville says, sooner or later every social issue in American life winds up in the courts. In this case, it arose in a plot straight out of one of those academic novels. The teenage plaintiff, Alida Star Gebser, had been engaged in a long sexual relationship with her high school social studies teacher. Although other students had complained about the teacher's inappropriate remarks and the like, Gebser and her teacher went to great lengths to conceal their behavior. When they were caught having sex in a parked car, the school threw the teacher out and the state pulled his license. Then Gebser's family sued the school. O'Connor sided with the four conservatives to deny that a school district was responsible when a teacher harassed a student. Unlike in the employment arena, the protections for students under the federal education law, Title IX, were not nearly as clear and robust as the prohibition against workplace harassment in the Civil Rights Act, she said. So the only way the Court would tag the school was if the school actually knew what was going on and ignored it. Stevens, Souter, Breyer, and Ginsburg dissented.

A year later, in
Davis v. Monroe County Board of Education
, O'Connor switched sides. Unlike Gebser
,
Davis was an “attractive”
plaintiff, as O'Connor often used the term. The youngster had been the blameless victim of relentless unwanted sexual harassment by a fifth-grade schoolmate; while her teachers and principal ignored her countless complaints, her grades tanked, and she contemplated suicide. Granting her fifth vote to the liberals to hold a school district responsible when it ignored complaints of student-on-student abuse, O'Connor authored the second opinion with Ginsburg firmly in agreement.

Although most of the employment and harassment cases were not close, the
Gebser/Davis
sequence was a reminder of how crucial O'Connor's vote was to any novel or contestable issue of women's rights.

WOMEN MAY BE EQUAL BUT MOTHERS ARE SPECIAL

While women workers and students were faring pretty well in the Court, the cause of women's equality ran into trouble, predictably, where the cases challenged women's traditional role as child bearers. Abortion having been pretty quiet since
Casey
, in 1998, the issue of how the law tied women to childbirth came up in a novel way: immigration. During the Vietnam War from 1964 to 1974, the United States sent hundreds of thousands of people, mostly men, to Asia. A lot of them fathered children with foreign women. American citizenship law gave the fathers eighteen years to claim their offspring, in order to confer citizenship on them. American mothers of children born abroad to foreign fathers had no such duty. Their children's citizenship was assumed. The law discriminated. While the offspring of the Vietnam War were growing up, the Supreme Court had told the country it was skeptical of arbitrary distinctions between men and women. By the 1990s the door was closing on these children. And so the issue of parenthood arrived again at the Supreme Court.

Like many American soldiers stationed in Asia, Charles Miller fathered a child out of wedlock with a foreigner, in this case a Filipino woman, and did not claim her within the statutory time allowed. Twenty years later the daughter tried to become an American citizen.

The case,
Miller v. Albright
, is muddied, and Justice O'Connor concurred on the outcome for procedural reasons unrelated to the sex discrimination in the law. However, the rhetoric of the opinions made it clear that as of 1998 a majority of the Court was still not ready to demand equal treatment of men and women when the issue turned on their different roles in childbearing. Women, Justice Stevens suggested in his majority opinion, must be rewarded for the work of childbirth: “If the citizen is the unmarried female, she must first choose to carry the pregnancy to term and reject the alternative of abortion—an alternative that is available by law to many, and in reality to most, women around the world. She must then actually give birth to the child. [The citizenship law] rewards that choice and that labor by conferring citizenship on her child.” And not just bearing children. The law also favors women because it expects them to do the rearing: “their initial custody will at least give them the opportunity to develop a caring relationship with the child.” The law that a child born out of wedlock to an alien mother and American father must be legitimated before age eighteen “is therefore supported by the undisputed assumption that fathers are less likely than mothers to have the
opportunity
to develop relationships.”

In her dissent, Ginsburg first tries to put her standard smiley face on the decision. Maybe it's just a run-of-the-mill case about whether the daughter can raise the father's discrimination claim.

But she's worried:

“Even if one accepts at face value the Government's current rationale, it is surely based on generalizations (stereotypes) about the way women (or men) are. These generalizations pervade the opinion of Justice Stevens, which constantly relates and relies on what ‘typically,' or ‘normally,' or ‘probably' happens ‘often.'

“We have repeatedly cautioned, however, that when the Government controls ‘gates to opportunity,' it may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.'”

Ginsburg's opinion draws on just a small sample of the decades of rhetoric from the Court, disclaiming any intent to close the gates
of opportunity based on fixed notions. But even with the sturdy foundation she had built, as advocate and jurist, childbearing is never far from the scene in any discussion about women.
Miller
, the immigration case, seemed to approve the government's policy of rewarding women by giving them automatic citizenship for their children.

As the Supreme Court approved rewarding women for childbearing, a raft of state laws were passed to drive them to it, by outlawing a common form of late-term abortion, dilation and extraction (“D&X”). A self-described “feminist,” the mental health advocate Jenny Westberg, says she started the new anti-abortion initiative in 1992 by getting hold of a copy of a medical paper describing the procedure for abortion providers. Westberg was a pretty good cartoonist, and she created a series of illustrations for the anti-abortion
Life Advocate
magazine. Aides to a Republican Florida congressman renamed D&X with the catchy phrase “partial birth abortion.” And the abortion wars flared up again. By the mid-'90s, the Republicans in Congress and states across the country began passing laws to prohibit D&X. (President Clinton vetoed the federal laws.)

Despite Justice O'Connor's profound desire to put the abortion matter behind her, some of the new anti-abortion laws could be read to apply even before the fetus was viable outside the womb and expressly refused to make an exception for women's health, even if the forbidden procedure were better for the woman's health. Accordingly, a lower federal court found the Nebraska “partial birth abortion” law unconstitutional under the Supreme Court ruling in
Casey
, reaffirming the right to abortion and seeming to preserve the basic protection for abortions. In 2000, the Court agreed to review the case. Would the
Casey
troika—O'Connor, Souter, Kennedy—hold?

When the conference met, there were five votes to overturn the Nebraska law, but Kennedy had jumped ship. In
Casey
, Kennedy was widely credited with holding that abortion rights were the manifestation of a fundamental American concept of liberty: “At the heart of liberty is the right to define one's own concept of
existence, of meaning, of the universe, and of the mystery of human life.”

His dissent in the new case revealed how little protection he thought
Casey
afforded women. In his view, states should be able to regulate abortion, even just to protect the moral health of the society: “States . . . have an interest in forbidding medical procedures which, in the State's reasonable determination, might cause the medical profession or society as a whole to become insensitive, even disdainful, to life, including life in the human fetus. Abortion,
Casey
held, has consequences beyond the woman and her fetus.
Casey
recognized,” he continued, “that abortion is fraught with consequences for . . . the persons who perform and assist in the procedure [and for] society which must confront the knowledge that these procedures exist, procedures some deem nothing short of an act of violence against innocent human life. A State may take measures to ensure the medical profession and its members are viewed as healers, sustained by a compassionate and rigorous ethic and cognizant of the dignity and value of human life, even life which cannot survive without the assistance of others.”

O'Connor, although voting in the liberal majority, concurred to speculate that some prohibition might survive if it were drafted to avoid procedures used before viability and contained an exception for the health of the mother. O'Connor's opinion thus reduces the liberal majority to a plurality of four. More important, her endless dalliance with allowing ever more intrusive restrictions helped give moral legitimacy to the anti-choice campaign. O'Connor's opinion is of a piece with her abortion jurisprudence since 1983. She would never provide the crucial fifth vote to send women back to 1972. But she would not let them move beyond the backlash that erupted after 1973 either. With the tantalizing possibility that some intrusion might hit the sweet spot of O'Connor's burden test, the abortion battles would continue unabated. Two years after the decision in
Stenberg v. Carhart
, Congress passed a bill banning the procedure used in late abortions.

The lawyer for the Thomas More Center had worked closely with the senators to craft a bill that would meet O'Connor's
undue-burden test. President George W. Bush signed the bill, and the law slowly began to make its way to the Court. It contained no exception for the mother's health.

Miller
, the citizenship case, was muddy, and
Stenberg
, the partial birth abortion case, was a victory for women. But for anyone watching carefully, the warning signs for women's equality were manifest. In the crude, vote-counting sense, any retirement among the pro-woman five—Stevens, O'Connor, Souter, Ginsburg, Breyer—would split the court 4–4. Stevens's defection in
Miller
was an oddity. He was not going to be a swing vote in most women's cases. A liberal retirement under a Republican president would put Anthony Kennedy in the swing seat. WWKD? What Would Kennedy Do?

Kennedy's vote in
Miller
and his dissenting opinion in
Stenberg
were ominous. When Kennedy was being considered in 1987, movement conservatives in the Justice Department opposed his selection, because they believed he was in the O'Connor mold and open to a modern approach to the Constitution. After his decisions in
Casey
and in some environmental cases, conservatives had an orgy of I told you so, framing him as someone who cared more about pleasing the establishment than in conservative constitutionalism. Kennedy was “drifting left in response to elite opinion,” as one prominent critic put it. This should have suited Ginsburg perfectly, as one of Ginsburg's primary strategies was slowly to embed formal equality for women deeply in establishment thinking, using the law to categorize stereotyped treatment of women an “idea whose time has gone.” If Kennedy, the bellwether of elite opinion, felt free to rule or opine as he did on women's issues after
Casey
, her whole strategy of making women's equality the conventional wisdom was in trouble.