Sisters in Law (11 page)

Ginsburg's soon-to-be project director Kathleen Peratis disagreed with her future boss. “[I] reject the idea of not doing something because it would get us a bad name in society,” she contended; “there's a value in the lunatic fringe.”

The ACLU board member Pauli Murray, who had been through the glory days of the NAACP Legal Defense Fund, reminded the group that picking and choosing cases was central to Thurgood Marshall's effectiveness. Why, she told the group, Marshall even turned her down when she was rejected for college in 1938 because he thought her case would not be a good-enough precedent. “One bad decision of the Supreme Court has a terrible impact,” she reiterated. The participants were having none of it. Why should lawyers be deciding what issues get priority, one lawyer asked. We don't control what cases we get anyway, another asserted. Faction was the name of the game in '70s social movements.

As the '70s feminists went about their anarchic ritual, someone suggested that they simply turn to the next proposal on the agenda, a well-funded national center patterned on the model of the NAACP. Ginsburg was already a year into running the center, midwifed by Pauli Murray, and setting most of the priorities for legal feminism. With Ford Foundation support, her students at Columbia were gathering litigation through the ACLU in an effort to realize her equality agenda. Yet she said almost nothing about her role, confining her remarks throughout the conference to bland inquiries about timing and reporting on factual matters such as recent decisions.

Since Ginsburg was not leading a conventional social movement,
she did not need to have many such meetings to sustain the momentum and keep the troops in line. Her razor-sharp professional skills and self-possession had already earned her a powerful position in the feminist legal movement. She just had to avoid giving offense.

“If someone else had been in that position,” the ACLU's Neier believes, “I doubt they would be able to secure that degree of cooperation from other litigators in the field. . . . [S]he tended to inspire collaboration and respect rather than competition. She was not a person who was vain in any way. She did not try to capture the limelight. This was a self-effacing person who was on the one hand very disciplined in her thinking and on the other hand very kind to the people she worked with.” “She has this soft little tiny voice,” the NPR Court expert Nina Totenberg notes, “and she can say really devastating things in that quiet voice.”

Her newfound status in the power elite did not silence the quiet voice. No sooner had she arrived at Columbia and the ACLU than she was urging her colleagues to stop their sexist antics. Right out of the box she wrote to the president of Columbia, forwarding him the wonderful Rutgers affirmative action plan for getting more women on the faculty. In classic Ginsburg fashion, she starts the letter by reminding President McGill that they had already met at a parents' night at the Dalton School. Just us natural elites here, President McGill. She wrote to the New York County Bar Association objecting to the use of the word “brethren” in light of the large participation by women in bar functions. She fussed privately and publicly about the professors and activists holding professional meetings at all-male clubs, as the Century Club was in the '70s. She comes down hard on the ACLU. Why didn't they pay more attention to my huge Supreme Court victories in their annual reports? she asks. The American Bar Association didn't give the progressive section on rights and responsibilities a big-enough room at its meeting. “Ruth got away with a lot,” Janice Goodman recollects. “If I could figure out how she did it, I'd have done it myself.”

Collection of the Supreme Court of the United States

Ruth Bader Ginsburg during the summer of
1977,
when she was a scholar in residence at the Rockefeller Foundation in Bellagio, Italy.

Mozart had, by many accounts, five operatic masterpieces. Jane Austen's reputation rests on five novels. As the chief litigator for the Women's Rights Project from 1971 to 1980, Ruth Bader Ginsburg argued in five great Supreme Court victories (and one loss). In five landmark cases over less than a decade, she largely transformed the constitutional status of women in America.
Reed v. Reed
, the 1971 women as administrators of estates case, might make it six, but she did not argue that one. She merely wrote the brief the Court adopted as its opinion.

DEBUT

On a cold Wednesday afternoon in January 1973, Ruth Bader Ginsburg rose to make her first argument in the United States Supreme Court. Although she was on for only ten minutes, she had not eaten lunch; in her anxiety she was afraid she would throw it up. The case,
Frontiero v. Richardson
, had come from the federal court in Alabama, where it was handled by the founders of the brand-new Southern Poverty Law Center, Morris Dees and Joseph Levin. Levin first offered to let Ginsburg argue at the Supreme Court. But, as the case progressed, Levin decided he was too attached to the matter—and his first opportunity to appear before the Court—to let it go. So Levin argued first, graciously ceding ten minutes to “Professor Ginsburg.”

Frontiero v. Richardson
arose because Sharron Frontiero
,
an air force medic, challenged the military presumption that servicemen's
wives were dependent on their husbands for support, but servicewomen's husbands were not. With a husband as a spouse, she had to prove that he needed her to survive in order to get the housing and medical benefits that married male servicemen got for their families as a matter of course. The dependent spouse rule was just one of myriad rules assuming female dependency and male independence that the women's legal movement had turned up since its awakening.

GINSBURG THE SNEAKY LITIGATOR

But
Frontiero
was a great vehicle to use in asking for a more demanding standard of review of such discriminatory laws (to move sex discrimination into the category of those things, such as race discrimination or restraints on speech, that the Court had long ago said it would look at very hard). When the Court decided
Reed v. Reed
, Ruth's first effort, it barely moved the standard of review for sex discrimination above the standard that applies to all legal distinctions: Was the law rational? After
Reed v. Reed
, a sex-discriminatory law must fairly and substantially advance the legislature's purpose in passing it.
Reed
was huge because it was the first case where the Court refused to accept legal distinctions between the sexes as self-evident. The
Reed
standard is better than the low standard of mere rationality, but not close to Ginsburg's aspiration to have the Court treat distinctions based on sex the same as race. In race cases, the government must prove that the discrimination is necessary to achieve a compelling governmental interest. Since the decision striking down segregated schools in 1954, almost no distinction has met that heavy burden.

Ginsburg was consciously following a well-established strategy. Even though aroused women all over the country were deluging the ACLU with complaints, a legal social change movement always wants to start changing big issues in the law like the standard for sex discrimination with cases that cause minimal disruption in the real world. The facts in the case revealed that making the few servicewomen prove that their husbands were dependent on
them while letting servicemen claim benefits for their wives without proof served no purpose of substance for the air force. It just made the military's administrative lives a little easier, by relying on an unattractive social presumption that women were always dependent on their spouses—and men were not.

Since there were so few women soldiers, the Court could help women out a lot by undercutting that destructive presumption at very little cost to the government. But once the Court changes the law enough to accommodate the small social change, it turns on the big engine of change in the legal precedent. The laws of the land were shot through with presumptions that women were dependent and men were not; indeed, shot through with all kinds of presumptions about women. Legal systems make presumptions all the time. It's the presumptions about women that Ginsburg was after. Change the standard for reviewing presumptions about women and you change the entire body of law.

Ginsburg and her colleagues fought valiantly to control the
Frontiero
case. They did not want to see another inept provincial lawyer screw it up like the awful oral advocate from Idaho had done in
Reed v. Reed
. When Frontiero's lawyers from the Southern Poverty Law Center asked the ACLU for help with their Supreme Court filings, General Counsel Mel Wulf believed they had an understanding to give it to Ruth to argue. She began framing the brief by asking for stricter scrutiny. Levin reneged on his offer to let her argue in October, three months before argument. Worse, as the briefing proceeded, it became clear that the Southern Poverty Law Center had decided to present the case as a modest application of the low standard of review Ginsburg had won in
Reed v. Reed
. The discrimination was simply arbitrary, they would argue, done for the air force's convenience, which is just what the Court had forbidden in
Reed
.

The ACLUers were apoplectic. It was one thing to have a lawyer botch an oral argument as Sally Reed's attorney had done. But Levin now proposed to change the legal strategy! As Ginsburg envisioned it, each case was supposed to build on the prior case, just like the NAACP had done, not simply repeat what they
had already achieved. It was particularly maddening that the new unambitious Levin strategy came from a colleague, one Charles Abernathy, then a lowly 3L, albeit at Harvard, who thought he understood how to manage the Nixon Court. Apparently Feigen Fasteau imperfectly concealed her impatience with the upstart's new strategy, because he wrote her a huffy letter about how his team was more “sophisticated” than she perceived. Her lack of respect made them, he threatened, disinclined to attend to any of her suggestions on anything.

Jockeying for position in presenting Supreme Court cases is standard operating procedure in the elite section of the bar that regularly appears there. Cases can begin with local disputes in almost any town in the nation, where people like Sally Reed or Sharron Frontiero are grateful for a lawyer like Joseph Levin to pay attention to their grievances at all. At the other end of the food chain, there is a well-established group of lawyers centered in New York and D.C. who specialize in the prestigious work of presenting cases to the Supreme Court. Unlike the original client's dedicated representatives, these high-powered law firms and organizations, such as the NAACP Legal Defense Fund or Ginsburg's ACLU, are often most interested in seeing the constitutional law that governs the entire nation develop in a certain way. They frequently employ people who clerked for the justices and know the inside scoop at the Court. They are sometimes seriously obnoxious to the rubes they perceive to be in the way. The local lawyers, often with warm relationships with the actual parties, don't want to turn their cases over to the fancy pants at the big shops. A case like
Frontiero v. Richardson
looks to a lawyer just starting out like his first—and perhaps only—shot at glory.

Ginsburg's people tried everything to get Levin to back off. As would often be her practice, after lesser voices like Feigen Fasteau's failed to work, Ginsburg wrote to Levin directly. Having a woman argue was important, she asserted. “I am not very good at self-advertisement,” she continued, “but believe you have some understanding of the knowledge of the women's rights area I have developed over the past two years.” Levin responded almost by
return mail. He didn't think sex mattered for oral argument purposes. “I am normally the easiest guy in the world to get along with and find it very uncomfortable to engage in squabbling of any sort, petty or otherwise.”

The exchange of letters looms large in Ginsburg lore, because she is so rarely caught on the record boasting about her abilities. But her second letter to Levin a week later reveals the steel-trap mind behind the velvet modesty. “I suppose it is hard for either of us, at this stage, to see each other as we describe ourselves,” she opens disarmingly. Then Ginsburg puts in the shiv. “The ‘easiest guy in the world to get along with,' in my book, would not
renege on an understanding
. On the other hand,
my attempt to bring you back to where we stood on the oral argument from May-October
probably does not seem to you to have been penned by someone who is, by nature, rather modest [emphasis added].” In two lines she tags him as doing something wrong regardless of how nice he is, while she describes herself as just trying to enforce a contract, however immodest that makes her. And all in a tone of sweet reason: “I suppose it is hard for either of us . . .”

Ginsburg's mysterious appeal to fractious lefty lawyers normally worked in part because she took the position that “we all want to do the right thing here.” In this case, it didn't work, and the two groups canceled their meeting to work on the brief. At the oral argument in January, Levin took the lion's share of the argument time, arguing only that the air force scheme was so irrational it failed the modest standard of
Reed v. Reed
. Even if they won the battle, then, the larger war would not be advanced. Ginsburg was reduced to making her argument for the Court to scrutinize sex discrimination strictly, as they did to race discrimination, in a brief as a friend of the Court and to speak briefly after Levin finished.

Although the Court has unyieldingly resisted any possibility of video coverage for decades, oral arguments, including Ruth Bader Ginsburg's debut in
Frontiero v. Richardson
, are recorded. For anyone who has heard her flat, halting presentations in interviews, the recording is a revelation. The familiar, Brooklyn-inflected voice was the same. But the Pinteresque pauses that once caused
a job candidate to leave her office in the middle of his interview, thinking it had concluded, were nowhere to be heard. For ten solid minutes, she articulated the argument for comparing sex with race and imposing strict scrutiny on any distinctions between male and female. All the hesitation, as Nina Totenberg has observed, disappears “when Ruth starts to perform.”

The argument she made is by now familiar. Women have a long history of oppression, could not even vote for most of the nation's history, and were, in 1972, almost unseen in corporate boardrooms or the halls of representative government. The justification for treating women differently—protecting them—excludes them from important arenas of civic and human life, such as from serving on juries and often from holding better jobs. Assuming they are dependent beings who belong in the home, as the air force scheme assumed, confines both sexes to stereotypes that limits their opportunities and imagination.

In a drumbeat of simple declarative sentences, she made raising the standard seem not just simple, but inevitable:

“Amicus [the ACLU],” she begins, “urges the Court to recognize in this case what it has in others, that it writes not only for this case and this day alone, but for this type of case. . . . To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion.

“This would not be quite the giant step appellee [the air force] suggests.”

Why not, she explains:

“Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual's potential to perform or to contribute to society.”

Her opponents say that race was the special concern of the Fourteenth Amendment. And it was. And again she asks the Court to consider not the what but the why:

“But why,” she then asks, “did the framers of the Fourteenth Amendment regard racial discrimination as odious? Because a person's skin color bears no necessary relationship to ability.”

And then she drives in her point: “similarly as appellees concede, a person's sex bears no necessary relationship to ability.”

The argument makes unavoidable a ruling that sex is as suspect as race. Had she succeeded, much of the rest of the drama of women and the Court would have been unnecessary. Uninterrupted by even a single question, her oral argument reveals graphically the woman who “treats everyone as if they were as smart as she is.” Although the argument has a simple structure, she does not dumb down her language. Women don't make less money, they receive less “remuneration.” Distinctions are not just illegal, they are “odious.” Perhaps imperfectly aware of the inner life of the nine men before her, she ended her maiden voyage with a ringing invocation of the suffragist Sarah Grimké: We do not ask men for special treatment, she intoned, “All we ask is that they take their feet off our necks.”

She was brilliant. At their conference, seven justices voted to strike down the air force scheme. And she converted Justice Brennan to strict scrutiny, treating sex like race. (Actually, her argument that sex was like race persuaded Brennan's clerk Geoffrey Stone, who left his justice with two drafts late one night, the narrow one applying
Reed v. Reed
and a broad opinion raising the standard for sex discrimination. When Stone got to work the next day he found Justice Brennan had come on board for the bold move.)

But Brennan had an uphill battle getting a majority. Although you wouldn't know it from the unanimous decision in
Reed v. Reed
, the Court changed foundationally when the nation elected a Republican president in 1968. Although the seven justices from
Reed v. Reed
remained, Nixon had filled the two remaining vacancies. He added William Rehnquist, O'Connor's old Stanford friend and the most conservative justice in decades, and a courtly Virginia lawyer from a corporate firm, the former ABA president Lewis Powell. The new justices were not what you would call feminists. Even the least conservative Nixon justice, Harry Blackmun, had already expressed disdain for the seriousness of legal feminism. “The ACLU,” he had written of Ginsburg's legendary brief in
Reed
, had filed a “very lengthy brief” in this “simple little case.”
“I hope we don't get into a long and emotional discussion about women's rights.” In fact, Ginsburg's brief was, at sixty pages, long, but not unusually long. In some of the back and forth between the justices during the consideration of the follow-up case,
Frontiero
, Burger asked Powell to be harsher on Brennan's liberal effort, describing himself as trying to “mute the outrage of Women's Lib.” As Aryeh Neier had figured out at the founding of the Women's Rights Project, men often thought women's rights were frivolous. Even his serious brainiac Ruth Bader Ginsburg failed to persuade Harry Blackmun or Warren Burger of the seriousness of her cause.