Authors: Linda Hirshman
THE GRANDMOTHER OF ALL BRIEFS
When they didn't hear back from Mel Wulf, the Ginsburgs rattled their network a little harder. When Norman Dorsen found a copy of the Ginsburgs' brief for Charles Moritz in his mail, he didn't just write to Ruth, he copied Wulf. Within days, Ruth's phone rang. It was Wulf. Would his old camp buddy like to help him on the
Reed v. Reed
Ginsburg hung up and called her girls: Janice Goodman and Mary F. Kelly, the NYU students who had carried the word about the Women and the Law class across the river to Rutgers; Ann Freedman, one of the three student authors of the authoritative
Yale Law Journal
article on the merits of the Equal Rights Amendment, who was just finishing up at Yale; and Ginsburg's own student Diana Rigelman, who had just graduated.
Okay, hotshots, now's your chance. This could be our
. Rigelman, Freedman, Goodman, and Kelly had all been in college in the hottest years of the '60s, yet, as the era drew to a close, these women had chosen law school rather than joining the SDS and mobilizing against the Vietnam War. Although Freedman, for example, was deeply involved with the New Haven Women's Liberation Union, defending Black Panthers and protesting the Vietnam War, she was still attending Yale Law School. In their
dreams they were Thurgood Marshall, circa 1954. The racial civil rights movement had given birth to the women's movement. Now the racial legal rights movement would give rise to the women's legal rights movement.
To the twenty-something law students, Ruth Bader Ginsburg, at thirty-eight, was an emissary from another generation. “She was not somebody who wanted to dismantle capitalism, the master's house,” says Ann Freedman. “But she also wasn't an apologist for the existing order. She saw the harm that sexist rules did in ordinary people's lives. But in her generation, what attracted people to the law was the process. She was always a lawyer's lawyer.” The movement lawyers were going to a Supreme Court that still had no women clerks. A lawyer's lawyer was just what the movement needed.
The highest goal was obvious: get the court to see sex like race. Ginsburg's team of young legal activists turned to the research that feminist law students had been gathering about Women and the Law for the courses they were creating out of whole cloth and to support the movement for an Equal Rights Amendment in Congress. James Madison's wife, Dolley, they found, had written letters in the eighteenth century comparing women's status to that of slaves. The man widely credited with doing the spadework to support the civil rights movement, the great sociologist of race Gunnar Myrdal, had compared slaves to women. In law school, they had all learned the heroic narrative of how progressive lawyers such as Louis Brandeis, later the first Jew on the Supreme Court, had broken the ban on protective labor legislation by drowning the court with social science data on the terrible conditions in factories. In
, Marshall used scientific studies about black children in segregated schools choosing white dolls over black toys when offered a selection to convince the Court that separate could never be equal. So it was no surprise that the students gave Ginsburg a draft brimming over with data about the changing place of women in societyâtheir workforce participation, their rising levels of education, their long march to suffrage.
From her office at Rutgers Law School, Professor Ginsburg
added the legal argument. The Court should treat sex distinctions like race, she arguedâsomething people are born with and which should not determine their fates. If she won that argument, the entire structure of discriminatory American law would buckle. Like the society at large and the
Harvard Law Review
, much of the American legal system was built on the assumption that women were different from men, and usually not in a good way. When the Supreme Court reporter Nina Totenberg saw Ginsburg's brief in
, she was stunned to see the comparison between sex and race. She'd always thought the Fourteenth Amendment was for African Americans. So she shut herself in the little phone booth the Court provided for reporters and called the professor at Rutgers. Only after she got an hour-long lecture on Professor Ginsburg's view of the deep similarities between the two examples of exclusion did she understand completely what the feminist intellectual was after. Ginsburg, Totenberg says, may not like the press, but she has always known how to use it.
Ginsburg had another arrow in her quiver. The rising tide of opposition to the Equal Rights Amendment pending in the Senate reflected the culture's ambivalence about equating sex equality with racial equality. Strictly speaking, Ginsburg did not need the Court to go that far. She could win just by getting the Supreme Court to say the law was so unjustified as to be irrational, the lowest standard that any legal distinction must meet. Any application of the Fourteenth Amendment to sex would be a move forward. She could try for the larger victory later.
Reed v. Reed
, challenging the Idaho law that automatically chose men over women to administer dead people's estates, should be easy to win under this low standard, Ginsburg hoped. It was a weird moment in Court history. By the time of the argument in
Reed v. Reed
, the Court was down from nine to seven. Chief Justice Earl Warren, who gave his name to the Court that made the legal civil rights revolution, and the liberal Abe Fortas both left the Court in 1969, and were replaced by Warren Burger and Harry Blackmun. Right before
Reed v. Reed
, Hugo Black and John Marshall Harlan left. President Nixon was considering their replacements.
Of the remaining seven, William O. Douglas, once the young Turk of the New Deal, could still be counted on to vote for an equality claim, as could William Brennan, the old Democratic pol and the premier theorist of the Warren Court, and Thurgood Marshall, the iconic leader of the racial civil rights movement. Since the Court was down to seven, technically, Sally Reed needed only one more vote. Chief Justice Warren Burger and Associate Justice Harry Blackmun, the leading edge of the Republican backlash against the Warren Court, were not invariably conservative. Eisenhower's Potter Stewart and JFK's appointee Byron White were considered centrist. Somewhere in those four, the ACLU thought it could harvest at least one vote. By 1971, it was unlikely that four members of the Court would rule that women, by virtue of their sex, were presumptively unfit to do the simple task of administering their dead sons' estates.
Looking at the Court to come, however, Ginsburg knew the justices and their likely successors would not find many other laws discriminating against women too silly and irrational to pass constitutional muster. Assumptions about the fundamental differences between the sexes were deep and broad. Nixon had taken office vowing to put an end to social experimentation under the guise of constitutional fiat. He was about to make two more appointments, for a record four appointments in one term. All the Women and the Law seminars in the world could not change the fact that given the Court's presentâand futureâmind-set, most laws based on assumptions of sex differences would probably meet the low standard of mere rationality. Ginsburg had to find a way to jazz up the process of thinking about women's equality far enough to produce real results for future cases but not so far as to scare Stewart and White, the crucial two centrist old horses on the Supreme Court at the time. She needed a middle road between mere rationality and equating sex with race.
If you look hard enough in the American legal system you can find precedent for almost anything. No one was a harder looker than Ruth Bader Ginsburg. As Ann Freedman, a coworker on the
brief, put it, she had an amazing “ability to zero in on the task at hand.”
Working on the original
appeal, the Ginsburgs had found
F.S. Royster Guano v. Virginia
, the fifty-year-old unfortunately titled “bird shit” case. In
, the Court struck down a state law that taxed different kinds of corporations differently, saying the distinction in the law did not advance the state's purpose enough to justify discriminating between mostly in-state and mostly out-of-state companies. Even in light of the states' broad discretion in local tax matters, the Court said, a discriminatory law must at least fairly and substantially advance the legislature's purpose in passing it. To a normal person, the difference between “rationally related to a legitimate state interest,” the conventional low standard for reviewing discrimination, and “fairly and substantially” advancing the interest, the
standard, does not seem world-altering. And in the half century since the Court decided this obscure equal-protection case in 1920, it had played no role in the Court's evolving equal protection jurisprudence. No one actually cared whether it was unconstitutional in 1920 for Virginia to favor Virginia corporations with entirely out-of-state business over corporations with only some out-of-state business.
But in interpreting the Fourteenth Amendment of the United States Constitution, the difference between a law that is merely “rational” and one that must be “fair and substantial” creates an opening big enough to drive a legal revolution through. The ACLU brief in
offered the Court bird shit, aka an opportunity to look a little harder at lines between the sexes.
With exquisitely careful legal analysis for the court and a working relationship with the Supreme Court press, Ginsburg was on her way. She did not argue
Reed v. Reed
; that honor went to the Idaho lawyer who started it (the argument was, by all reports, a complete disaster). She merely spearheaded the ACLU's brief, detailing the history of women's suffering and invoking
The Court did not equate sex with race when it decided
Reed v. Reed
. But when the Supreme Court issued its unanimous opinion striking down the Idaho law that preferred men to women in November 1971, it carried the loaded language Ruth had excavated
from the avian fertilizer case. The days of assuming automatically that women were different from the standard citizen were over. From then on, the hundreds of remaining laws the movement had identified as preferring menâor women, as it turned outâwould have to show a “fair and substantial” reason for distinguishing between them. The government could no longer assume for its convenience that women, the little darlings, would be too ditsy to administer estatesâor anything else. Even the conservative Warren Burger signed on to that.
Professor Ginsburg was about to start taking down those laws. There have been many female lawyers in America, a few before and many after Ruth Bader Ginsburg. And many of them have devoted themselves to the feminist legal movement or served, as Sandra Day O'Connor would, as incomparable role models, with stunning results. But the constitutional scholar Geoffrey Stone, who was clerking for Justice William Brennan when Ginsburg made her own first oral argument in the Supreme Court, calls her “simply the most important woman lawyer in the history of the Republic.”
DEMOCRACY AND DISTRUST
Professor Ginsburg wasn't the only young woman lawyer cataloguing laws that made unwarranted distinctions between men and women. So, as it happened, was newly elected State Senator Sandra O'Connor.
O'Connor's files from the early 1970s, like Ginsburg's, might be titled “The Unexpectedly Radical Feminist Clippings File of an Apparently Unthreatening Professional Woman.” In 1971, O'Connor was reading about the edgy new feminists of Los Angeles and single-by-choice New York radicals in filthy Greenwich Village walk-ups.
Most strikingly, State Senator O'Connor obtainedâand keptâthe 1970 special issue on women from the distinctly cosmopolitan
. Why, the introduction to the special issue asked, were “American women, while enjoying more material, political, and social advantages than any other women in history . . . nonetheless so discontent with their lot?” And the editors got an earful. The writer Catherine Drinker Bowen speculated that the Revolution was imminent, in light of the falling birthrate, since, surely, “no woman can devote a life to the raising of [only] two [kids].” Paula Stern, fresh out of graduate school at Harvard, described marriage as a refuge from a hostile world and an agency in making sure it stayed bad in the future: “Once married she can stop fighting cultural stereotypes and start teaching them to her children.”
Sociologist and women's rights activist Alice Rossi told the magazine the insulting stories she had been gathering from working women, stories that must have been resonant and reassuring to the Stanford law grad who was offered only a secretarial berth when she applied. “I never wanted to teach grade school children,” one woman had told Rossi. “But I found so much prejudice and resentment against me in my first job in an architectural firm . . . that I couldn't take it. I left and switched to teaching art. At least I feel welcome in a school.” Another reported that she “had the experience last year of seeing a job I had filled for two years upgraded when it was filled by a man, at double the salary I was paid for the same work. College-trained women are lumped with the secretarial and clerical staff, while college-trained men are seen as potential executives. A few years of this and everybody is behaving according to what is expected of them, not what they are capable of.”
Rossi's article included this now-commonplace but then-revolutionary insight: “If [women] are vital and assertive, they are rejected as âaggressive bitches out to castrate men.' If they are quiet and unassuming, they are rejected as âunlikely to amount to much.'” O'Connor struggled visibly to thread that same needle. She ran for office, but she ran home to make dinner every night for her husband and three sons. In an early speech to women students at the local university, she extolled the virtues of dependence on a male spouse: “Those women who are fortunate enough to have husbands or other means to support them can truly enjoy the freedom of choice to select that work which is most satisfying to them, and to select work of a part time or occasional nature.” She repeated without irony John O'Connor's joke about her career in speeches about how to combine love and work. “I think it is a tribute to American democracy,” O'Connor's lawyer husband said, “when a cook, who moonlights as a janitor, can be elected to high public office.”
When O'Connor wrote to President Nixon in 1971 on the subject of the two Supreme Court nominations he had before him, it was merely “to encourage [him] to consider” for appointment “one of the well-qualified women lawyers in our country today.” But
she hastened to reassure him that she was “confident that [his] selections will be well-considered and wise.” After all, “Chief Justice Warren Burger has already proven himself to the American people to have been a splendid choice.” (Unknown to O'Connor, Burger had made his opposition to a female nomination clear to the president, threatening to resign if the president polluted the Court with a woman.)
O'Connor may have read the
articles on What Women Want, but she turned down the page corner at the piece that catalogued the laws at every level of American government that treated women differently. The Equal Rights Amendmentâfueled attack on the web of legal discrimination against women suited her perfectly. Exactly like Ginsburg at her feminist awakening, O'Connor began creating a hit list of such laws in her case in the state she was helping to govern and set about having them changed.
The first task was a no-brainer: repeal the state law limiting women to an eight-hour workday. Here, the Republican legislator's conservative free-market principles and her commitment to women's equality overlapped perfectly. (She did not know that Ginsburg always saw protections such as the eight-hour-day law as an excuse to keep women out of better jobs.) As at the ACLU, the forces of liberalism were divided on whether it was more important to make women equalâby letting them work the same hours as menâor to protect them. The liberals for protectionâunions, liberal Democratsâwere against O'Connor in the Arizona legislature. Even though these forces of liberalism were receding in Arizona by then, she prevailed by only a single vote.
The Equal Rights Amendment, then being heard by the U.S. Senate Judiciary Committee, would have struck down all state laws that discriminated on the basis of sex. But despite her later claims to support the equality measure, she initially told students at ASU, “I'm not sure the equal rights amendment is necessary. I am inclined to believe that a few well-chosen cases brought before the federal courts would establish the equality of women under the equal protection clause of the Fourteenth Amendment, and the civil rights act, in a meaningful way.”
Thousands of miles away, of course, Ruth Bader Ginsburg was pounding on Mel Wulf to let her in on the first well-chosen case. In any event, O'Connor had another idea about how to make the world a better place for women. If women wanted the world to change, she advised the students, they would have to use their electoral power more wisely and run for public office. She thought social change should come from the bottom up. And she thought the presence of women in public lifeâworking hard and asking no favorsâwould change the society like nothing else.
Two years after her remarks, O'Connor, by then majority leader of the state senate, got her chance to do as she had advised the ASU students and help women through her electoral power. On March 22, 1972, the Equal Rights Amendment passed the U.S. Senate. Accompanied by a halo of bipartisan goodwill, it arrived at Majority Leader O'Connor's Senate Committee for hearings on ratification by the state. State legislatures were falling all over themselves in a race to ratify. When the women's activist Irene Rasmussen, then the wife of one of John O'Connor's associates, went to Senator O'Connor to urge her to get it passed, O'Connor assured her it was a done deal. She had already been thoroughly lobbied to heat up her lukewarm support for the ERA by a pal from her Phoenix social circle, the chair of the White House Women's Commission, Jacqueline Gutwillig.
Wanting to see it happen, Rasmussen took herself down to the meeting of the Senate committee that had the ERA in its power. As Rasmussen remembers, “The Equal Rights Amendment came up on the agenda in the Judiciary Committee. And John Conlan [Republican committee chairman] said something very mild like, âYou know, this is a big national deal, I don't think we should rush into this, I think we should study it, and hold some hearings, and talk about it, what do you think Majority Leader O'Connor?' And, without batting an eye,” Rasmussen remembers, “she gave in.”
The delay was a death knell for the ERA in Arizona. In the early years of ERA revival, the measure had bipartisan support. President Nixon's own Citizens Advisory Council on the Status of Women, led by O'Connor's pal Gutwillig, had generated the legal
theory that most supporters used to defend the amendment. But O'Connor's mentor and inspiration, Barry Goldwater, had already signaled the position of the party's conservative wing by voting against it in the U.S. Senate. On April 10, right after O'Connor introduced the measure in Arizona, he wrote her a letter to share his concern that the amendment would try to “change the design of the Lord by making men and women identical.” Led on the ground in Arizona by State Senator Conlan, O'Connor's Republican Party followed Goldwater to the right. Across the country in St. Louis, Missouri, Phyllis Schlafly, an old-fashioned red-baiting woman lawyer with a beehive hairdo, weighed in to STOP, as her signs brilliantly stated, the ERA. Schlafly, who had self-published a book in support of Goldwater in 1964, had become a force to be reckoned with in the increasingly conservative Republican Party. Despite herself being a female lawyer and an activist, when she got wind of the ERA, she saw red.
Flogged by Schlafly, who formed a prescient alliance of fundamentalist religious groups, the Republican Party rescinded its commitment to the women's amendment. Republican state legislators started to oppose its ratification. For the next year, O'Connor was caught between her ambitions in a conservative Republican Party and her professed concern for women's rights. When asked, she sent a mealymouthed “on the other hand” letter about how reasonable people could differ on the merits of the ERA. While she did not believe it threatened family life or women's freedom, “many sincere and genuine questions have been raised,” she wrote. She tried to get rid of the politically inconvenient amendment by sending it to the people to vote on directly in a referendum. When that did not work, she voted to send it to the Senate floor. But it was too late. The motion to report the ERA out of committee to the whole Senate lost 5â4. The easy days of feminist principles and conservative politics were over.
O'Connor was not working in a private study on the Upper East Side of Manhattan or out of an academic office. She was in the trenches of the Arizona state legislature. And when it came to the ERA, the Arizona soil was as hostile a landscape for women as
the desert O'Connor's family tried to ranch. Comparing her inability to get traction on women's equality with the comparative ease of Ginsburg's litigation initiative in the same years illustrates the appeal of a top-down strategy rather than state-by-state legislative battles. The ACLU litigator Ginsburg was addressing life-tenured federal judges. And life-tenured federal judges don't have to worry about being reelected.
Rasmussen and other feminist activists blamed O'Connor squarely for advancing her political ambition instead of using her power to push the ERA. “Justice Sandra Day O'Connor,” Rasmussen says, “had a lot of mileage ever since then as being an Equal Rights Amendment supporter, and so forth, and in fact, she was not and she had the power and she didn't exercise it, and she allowed an ambitious man to overwhelm her . . . she was pointless from that time on.”
From that point on, O'Connor got the reputation of being someone who didn't pick losing battles, not necessarily a bad thing in someone seeking to make a political career in an entirely male world increasingly beholden to the revived conservative movement. Ginsburg was famous for picking her battles, too. But she was picking among various claims for litigation within an overall commitment to the movement for women's equality, not weighing women's equality against unrelated ends.
As it turned out, despite Rasmussen's disillusionment, O'Connor's self-advancement advanced the movement. Years later, when Irene Rasmussen brought her young daughter Rachel to Washington, she went to visit her old friend at the Supreme Court. Justice O'Connor gave them a grand tour and took them to lunch in the justices' dining room. It was good, Rasmussen admits, for Rachel to see a successful woman making it at that elevated level. Perhaps O'Connor had put her career first, but, had she not been so strategic, would she have been there to show Rachel it could be done at all?
WITH LIBERAL FRIENDS, WHO NEEDS ENEMIES?
While O'Connor was struggling with her competing loyalties in Arizona, Ginsburg was working her constituency: the lawyers.
Although they were not as conservative as the Arizona Republicans with whom O'Connor was contending, the organized bar wasn't exactly falling all over itself for sex equality either. In April 1971, as Congress was considering the Equal Rights Amendment, the
American Bar Association Journal
published an article by a lawyer's wife: “Don't try to have the last word in an argument,” the distaff side of the profession advised. “Be prepared to serve scrambled eggs with a smile at 10 p.m. Women's lib notwithstanding, be sure his sox match.”
At its annual meeting in 1971 the American Bar Association held a mock arbitration, which they titled, to their own immense amusement, “Will London Bridge? or Women's Lib?” The convention theatricals apparently centered on an imaginary dispute over whether the women's movement in New York created such a state of social unrest that a project to build a transatlantic bridge from London would have to be scrapped. When the good fun was reported in the bar association's magazine, it elicited the predictable response from the handful of female members. According to a furious letter to the editor, the ABA presented as witnesses for women a hussy who had abandoned her husband and children and was a
, of all things. One could not imagine, the letter writer suggested, that the ABA would amuse itself with such a treatment of, say, the racial civil rights movement.
Ginsburg responded to the deployment of mockery in typical fashion with a dry, scholarly article in the same publication, arguing that the ERA was necessary because of the gender-biased federal and state laws that might take forever to undo, one at a time. (In protected environments, Ginsburg was a lot more forthright and a lot funnier. Speaking of the ABA article to a gathering of women activists, she noted that the Bridges and Libs matter had been argued exclusively by men, none of whom “claimed any expertise regarding women or bridges.”) Early on, Ginsburg suggested that decisions about women might have better outcomes if women were involved in making them. Not only would the experience of women doing demanding jobs well change men's minds about their inclusion, they would also make better decisions.