Sisters in Law (21 page)

O'Connor disagreed and wrote a dissent. She admitted that the Court had said the Constitution applies to this so-called right:

“In Roe v. Wade . . . the Court held that the right of privacy . . . founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action . . . is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

As in her confirmation proceedings, she refused to say what she would have done if she'd been sitting on the Court in 1973. The parties did not ask for the nuclear option, overruling
Roe
, she notes, and so the Court would not reexamine the decision. But for the new justice even to recognize that possibility a mere decade after the decision was chilling to Blackmun and the pro-abortion forces.

However, she continued, had she been there, she sure would have done a better job than Harry Blackmun. Blackmun's opinion
in
Roe
had extended constitutional protection to choosing abortion according to how far along the pregnancy was. In the first trimester, when abortion is safer than pregnancy, the right to abortion was absolute. Then, up to the point where the fetus can live outside the womb (viability), the state may only impose limitations designed to serve the mother's health. Thereafter the state may still prohibit abortions, unless the prohibition endangers the mother's health. The woman's health is primary throughout and is the exclusive interest until the fetus can live outside the womb.

“[I]t is apparent from the Court's opinion,” O'Connor believed, “that neither sound constitutional theory nor our need to decide cases based on the application of neutral principles can accommodate an analytical framework that varies according to the “stages” of pregnancy, where those stages, and their concomitant standards of review, differ according to the level of medical technology available when a particular challenge to state regulation occurs.” The standard, O'Connor speculated, was on a collision course with itself. In her scientific understanding, doctors would get better and better at preserving the fetus outside the womb, rolling back the cutoff for viability. Abortion would get safer and safer, pushing the untouchable first trimester further and further forward. “Unworkable,” “illegitimate,” “unjustifiable in law or logic”—only the timely intervention from one of Blackmun's clerks to his counterpart with O'Connor prevented her from calling Blackmun's framework “unprincipled” in her dissenting opinion.

Justice O'Connor then set out her version of an abortion decision. Contrary to Blackmun's opinion in
Roe
, O'Connor believed that the state had an interest not just in the mother's health, but in the
fetus
from conception. So the government can do anything it wants at any time as long as it does not place an “undue burden” on the woman's decision to terminate. No connection to women's health is required. In this first effort since her appointment, O'Connor served notice that, as an example of the proposed standard, she would uphold every one of the city of Akron's restrictions on women's choice.

Although she is later credited for devising the undue-burden
standard for abortion rights, it was not her idea. During the twelve years of Republican administrations after the 1980 election, the Justice Department had played the lead role in rolling back abortion rights. O'Connor's standard comes directly from the Reagan Justice Department's friend of the court brief in the
Akron
case. The brief, which stopped just short of telling the Court to overrule
Roe v. Wade
altogether, was highly controversial. Nine years later, President George H. W. Bush's administration, in a similar role as friend of the Court, would go all the way and request that
Roe
be overturned. The confrontation was inevitable: once the Court conceded the state's nine-month-long interest in the fetus, that interest was on a collision course with women's interest in obtaining abortions. There was no principled stopping place. There was only the establishment distaste for stories of thalidomide babies and coat hangers: abortion couldn't be made criminal enough to go back to those bad old days. Just as difficult as possible short of that.

O'Connor's proposed revision of
Roe
was just a dissent in 1983, and she lost the rematch of the same fight in her second abortion case in 1986. The women's groups, which had been cautiously optimistic, veered sharply away from their first female champion
.
Unlike Blackmun's clean, time-related test with restrictions grounded in women's health, the squishy language of “undue burden” promised—and later delivered—a mare's nest of increasingly ambitious efforts to cut back on abortion rights.

A DISH BETTER TAKEN COLD

But the First Woman was a better friend than women realized, in the angry aftermath of the
Akron
dissent. In 1983, as she was preparing to embrace the Reagan administration's very hostile position on abortion, she cheerfully went across town to her first National Conference on Women and the Law at George Washington Law School.

The conferences had come a long way since their origins as a scruffy gathering of feminist activists in the 1960s. The 1983 conference involved a thousand lawyers, law professors, and students
and merited the appearance of a Supreme Court justice. And who should be at the conference but the famed women's advocate and court of appeals judge, Ruth Bader Ginsburg. Ginsburg, of course, had been going to the conferences since the earliest days, when she toted around her photocopied materials for the Woman and the Law course and exchanged syllabi, all of which she eventually turned into one of the very first casebooks on the subject. Although Ginsburg had never heard of O'Connor when the FWOTSC surfaced as a Supreme Court nominee in 1981, one of Ginsburg's former clerks, Deborah Merritt, was working as a clerk to Justice Potter Stewart, whom O'Connor would replace. When Stewart retired in the middle of Merritt's term as clerk, his replacement took Merritt on. So, in O'Connor's first term, she had a clerk from Ginsburg's chambers. And, of course, when Sandra's opinion in the Mississippi University for Women case came out, Marty Ginsburg asked his wife if she had been O'Connor's ghostwriter. Ginsburg had reason to look forward to making her acquaintance. And there was the new justice, at the fourteenth annual Conference on Women and the Law.

Unknown to Ginsburg, when she ran into O'Connor at the conference, the Court was about to deliver a sweet victory on the subject of Women and the Law (Firm).

The Court's helping hand to women lawyers was sweet, but late. Gibson, Dunn had told Sandra Day O'Connor she could be a secretary in 1952. When Diane Blank and Mary Kelly went to law school in 1968, they surely were not thinking it would take until Justice O'Connor's third term, sixteen years after they were 1Ls, for the Court to tell firms they could not direct female law students to the steno pool. The young law students had a play-by-the-rules mentality. If they worked hard and did well, the status-conscious and highly bureaucratized process of law-firm hiring should waft them up to the Nirvana of big-firm life. They would get hired as summer interns after their first year in law school and then as entry-level associates after graduation. The process turned largely on the grades they received and on their performance on the prestigious and select law reviews at their schools. There seemed little room for the kind of covert distaste for women workers that allowed so much discrimination in less structured environments. They did not think that cosmopolitan New York law firms in 1968 would still act a lot like Gibson, Dunn circa 1952.

FEMALE LAW GRADS SUE PEOPLE

But at the end of the day, they and a handful of other classmates had to sue the biggest firms in New York to get a chance at the brass ring. In 1971, Blank sued Sullivan and Cromwell, and a woman named Margaret Kohn sued Royall, Koegel and Wells. In 1977, Sullivan and Cromwell settled with Diane Blank, rather than let
her look at their statistics on hiring women. It should have been a lesson to the firm. But when Justice O'Connor considered the case of law-firm hiring seven years after Sullivan and Cromwell settled, the number of women partners at Sullivan and Cromwell could still be counted on one . . . finger. One. Out of seventy-five partners. Women had been pouring out of the law schools since 1970, but somehow they almost never made it across the magic line to partner.

The woman justice who never made partner—or even associate in 1983—found herself facing this reality from behind the bench. The powerhouse Atlanta law firm King & Spalding, home to Jimmy Carter's former attorney general, Griffin Bell, had turned down a young female Columbia graduate, Elizabeth Anderson Hishon, for partner. King & Spalding had never had a female partner. They had just made their first Jewish partner a few years earlier. To their astonishment, Betsy Hishon, a stereotypically good girl, who had never made waves, filed suit. The firm, she charged, had discriminated against her in employment, in violation of the Civil Rights Act. Unlike Sullivan and Cromwell and the rest, King & Spalding did not deny that they discriminated against women, and they would not settle. Instead they stood on principle: law firms are partnerships, not employers, under the Civil Rights Act, and so in deciding who to take as their partner, they're not hiring, they're choosing partners. They can discriminate as much as they want. Indeed, King & Spalding told the courts, the most powerful engine of freedom in the American political universe, the First Amendment to the Constitution, protects their right to associate—or not to associate—as partners with anyone they choose. If they decide that No Girlz are Allowed in their club, it's their constitutional right.

Actually, King & Spalding had a few females at the firm when they rejected Betsy Hishon. According to
The Wall Street Journal
, right before Hishon's case got to the Supreme Court, one of the Girls of King & Spalding was the prize-winning summer intern “with the body we'd like to see more of.” The others participated in a bathing suit contest (they had planned a wet T-shirt contest, but someone must have told them it wasn't a great idea in light of
the pending litigation). Bathing suits, wet T-shirts: the media covering the case were over the moon.

No one on the Supreme Court wanted to rule in favor of King & Spalding. O'Connor's law clerk Stewart Schwab, who wrote the pool memo about whether to take the case, thought the firm was wrong about partnerships being exempt from the Civil Rights Act and protected by the First Amendment. He recommended waiting until the lower courts had ruled a bunch of different ways on the matter, what is called in Supreme Court language a “split in the Circuits.” All those rejected female lawyers could wait until the lower courts had disagreed among themselves. Not surprisingly, Justice O'Connor, rejected three decades before by every firm she solicited, did not think the young women should wait. She thought the Court should grant review. And so it did, by the minimum requirement of four votes. The legal issue in the case is a technical one. Partners are equals in risk and control, unlike employers and employees, and the legislative history of the Civil Rights Act is unclear about whether the prohibition against race and sex discrimination in employment applies to that more informal and egalitarian relationship. Firms couldn't refuse to hire female associates, but maybe they could refuse to become partners with the women.

Were law partnerships exempt from the Civil Rights Act? At oral argument, O'Connor was unusually aggressive with the lawyer for King & Spalding: “Congress knew full well how to write in exemptions to the Civil Rights Act,” she said, “and they put in three (small businesses, religious organizations, state and local government) and you're asking us to create one out of some abstract notion of lawyers. If Congress had intended to have this exemption, wouldn't it have said so?” Answering her, King & Spalding's lawyer, the legendary champion of the racial civil rights movement Charles Morgan, sounded downright testy. Maybe, despite the First Amendment argument, he was embarrassed to be arguing that a law firm could legally say it just would not hire women—or black people. It was certainly the first time Morgan had to answer to a powerful woman lawyer as to why the club said no girls allowed.

The Court ultimately got around the problem of how the act applied to partnerships by focusing on Hishon's situation. She was hired as an associate with the assumption that the firm would consider her fairly for partnership at the end of her probationary period as an associate. Unlike a partner, an associate is unambiguously an employee of the law firm. With the help of the Justice Department's supporting briefs and argument, the Court ruled that the decision about whether to promote an associate, who is clearly an employee, to partner, was an employment decision covered by the Civil Rights Act (and not, they easily concluded, protected by the First Amendment).

The case is interesting to Court buffs, because the archives show Warren Burger overtly engaging in the behavior that drove his colleagues nuts, but which was often hidden from view. He would vote with the majority at the conference when the cases were tentatively decided. Then, as a member of the majority, he could claim his privilege as the chief to assign who would write the opinion. He would then assign it to himself and undermine the decision he did not really support as much as he could get away with without driving his colleagues to produce a competing opinion and steal his majority. So in
Hishon
, which was unanimous, he circulated a draft opinion suggesting that her case against the firm was based on their contractual commitment to treat her fairly rather than the Civil Rights Act requirement that law partnerships as employers treat all employees fairly. Had he succeeded in holding a majority for his opinion, the ruling would have been fine for Betsy Hishon, but so narrow as to be meaningless for the cause of women's equality. Law firms would just start inserting a clause in their hiring contracts that hiring as an associate meant nothing about consideration for partnership.

In a heartbeat, the liberal Justice Brennan jumped all over Burger. The result is right, he says, but that's not the law. I guess I'll have to start a competing opinion. Justice Stevens jumped in with a memo adding a snarky but entirely accurate comment that Burger's theory would not even justify putting the case in federal court. (Ordinary contract disputes go to the state courts. Only the federal Civil Rights Act claim put the case in federal court.)

Even with the other justices piling on, Justice O'Connor felt constrained to add her voice, warning the chief that she would not join the opinion as he suggested it. “I still think the opinion should recognize a recovery under Title VII rather than on simply the contract theory.” Burger, realizing he'd gone too far, backed off and wrote an opinion applying the Civil Rights Act to law firms' promotion decisions.

Justice Powell was the only jurist who thought the chief was right the first time. He had aggressively questioned Hishon's lawyer about how law firms could function if their every partnership decision was subject to the Civil Rights Act. Powell didn't think law firms had a sex problem in the enlightened year of 1984: “Discrimination is unlikely to occur certainly at this late date—because it is contrary to a firm's best interest,” he wrote in his usual memo to self. “The future of a law firm, like that of a football team, depends on the wisdom and care with which partners are chosen. Neither sex nor race is a negative factor in a modern law firm.” He filed a separate concurring opinion to emphasize the limits on the decision. Okay, law firms couldn't discriminate against their associate/employees. But once a person became a partner her civil rights evaporated, he reiterated. Good thing women law partners didn't need the help.

Or maybe they did. Four years after the decision in
Hishon
, the newly formed American Bar Association Commission on Women in the Profession decided to hold hearings on the issue. The first chairwoman, one Hillary Rodham Clinton, was skeptical that the hearings would be productive. Only the losers would show up, she predicted. Instead, leading lights of the bar—Pat Wald, the only woman on the D.C. Circuit, and Brooksley Born, first female president of the
Stanford Law Review
and partner at the powerful Washington law firm of Arnold and Porter—showed up to tell stories of the “problem” women faced trying to succeed in law firms. They got case assignments steering them away from the lucrative big cases and stripping them of the ability to strut their stuff; they were confined to obscure jobs, reviewing documents. The law firms acquiesce in clients' requests not to have women
on their matters, and don't invite them to the critical off-premises social networking. Then they are characterized as unable to get new business. Their work, the report concluded, is treated with “a presumption of incompetence.”

Hishon v. King & Spalding
appears nowhere in the voluminous literature about the Burger Court. The Supreme Court biographies—of Burger, Blackmun, Powell, Brennan, Stevens, even O'Connor—include analyses of hundreds of cases about everything from exhaustion of remedies in habeas petitions to federal power over strip mining. Yet they are silent about the battle for inclusion of this otherwise conventional young woman attorney. The case must have seemed utterly trivial to the historians of the Court. But for the young women struggling to make their way in firms like King & Spalding, with not enough female partners and too many wet T-shirt contests, Betsy Hishon's victory felt like a life preserver.

It wasn't just the young women lawyers who benefited from Hishon's victory over King & Spalding. When the sociologist Barbara Harris studied nineteenth-century professional women, comparing the difficulties they had in entering the legal and medical professions, she found that women faced greatest opposition from the bar . . . the law clearly was an all-male domain, closest to the center of power, that was not to be invaded or changed by females. So the progress of women in legal institutions affected women everywhere.

Justice O'Connor knew exactly how important the decision was. The following year, when the New York State Bar Association asked her to write the foreword to its series on the achievement of women in the legal profession, she opened her piece with the decision in
Hishon
: “Of special interest to women lawyers was
Hishon v. King & Spaulding
[
sic
] decided during the 1983 Term, which confirms that Title VII applies to the partnership decisions of law firms as well as to the hiring and promotion policies of corporations.”

As the article reflects, Justice O'Connor had learned a lot about framing “the woman thing” in the three years since her misstep
at the 1982 judges' conference. Bemoaning the underrepresentation of women in the judiciary and the partnerships of law firms, she quickly recognized that “tenacious social and cultural barriers” made women's advancement harder, and recognized the benefit from women attorneys' groups acting together to remove the “artificial barriers” that thwart them. Instead of advising her audience to always put their families first, she acknowledged that expecting women to bear the lion's share of domestic responsibilities is an important part of what holds them back at work. She even gave a shout-out to New York State's pioneering females, including one “Ruth Bader Ginsberg [
sic
]” now of the “United States Court of Appeals for the District of Columbia Circuit.”

THE WET T-SHIRT CONTEST

Planning a wet T-shirt contest and defending discrimination in law-firm hiring in the same year,
King & Spalding
hit a rare double. It presented the Court with a classic example of sex discrimination pure and simple and gave the nation a glimpse into the devilish connection between sex as in
sex
and sex as in inequality, a much fuzzier concept.

The sex thing had been bubbling up for a while. Stories of male supervisors demanding sex and threatening retaliation were the staples of '70s consciousness-raising. The stories were unattractive. But were they illegal? At first judges and cultural authorities of all stripes were skeptical that sexual behavior in the workplace was a proper subject for the law. They thought sexual desire was just a law of nature, that the women workers were targeted because they were so luscious, not a protected category under the Civil Rights Act. After all, the bosses didn't solicit
all
the women in their office, just the desirable ones.