Sisters in Law (30 page)

Blackmun's
J.E.B.
opinion is a better opinion for Ginsburg's input, as is most written work she addresses. Her point in pressing Blackmun to include the sorry history of Alabama's treatment of women jurors was not just academic. She constantly argued from such history that arrangements that seemed to benefit women or acknowledge their difference actually harmed them. But her resentment at not getting the assignment is palpable. By the time she got to the Supreme Court of the United States, Ginsburg's earplugs may have worn a little thin.

O'Connor had a different agenda in writing a separate opinion in
J.E.B.
She wanted to reiterate a losing argument she had been making in the race-based jury cases—that the limits on peremptory challenges should apply only to the government. O'Connor had long argued that only the prosecutor acts for the state in these cases; criminal defendants are not the state. Since the Fourteenth Amendment applies only to the state and not to private citizens, O'Connor had been contending, defendants should still be able to shape the jury any way they want to.

Since she had consistently lost that battle, her opinion was
unremarkable on this score. But the partial dissent matters, because, in the course of arguing about how seriously the Court was restricting defendants' rights, she made a much more radical argument about sex discrimination than Blackmun made. For years O'Connor had asserted that male and female judges would come to the same conclusions. Now she appears to recognize potential differences in jurors' decisions. The state presented actual social science on how male jurors go easier on accused rapists, she reminded the reader. As to the rest, “though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person's gender and resulting life experience will be relevant to his or her view of the case.” (The social science on male jurors and rapists, though contested now, was in the record in
J.E.B.
)

Shockingly, the prim and proper Republican came within a hair of sounding exactly like the cutting-edge feminist theorists Carol Gilligan and Catharine MacKinnon. Women are different. Because women experience and know things differently, she asserted, the Court should do only what the Constitution absolutely demands when restricting litigants from shaping a jury through the traditional peremptory challenges.

While she used the cultural assumption of difference to argue for defendants' use of gendered challenges, she nonetheless concluded that the
state
cannot be allowed to base its peremptories on sex. That would be state action. It's not that gender makes no difference. When the state is acting, she argued, the state must affirmatively decide to ignore the differences in the interest of women's equality! Women, different as they may be in the jury box, deserve to be citizens, and therefore jurors, despite bringing all their differences with them into the jury room. It's radical. In his dissent in
J.E.B.
, Justice Scalia used O'Connor's flirtation with difference feminism as evidence of the willful blindness of the pro-equality side to the natural differences between the sexes. He lost in
J.E.B.
, but the concession to difference feminism is lying there in the precedent, like an unexploded grenade.

O'CONNOR'S WORLD

O'Connor's argument for a narrow reading of the Fourteenth Amendment in the jury selection cases was the rare example of an issue where she did not get her way. With the Court almost perfectly divided between its four conservative and four liberal justices, O'Connor was the avidly sought-after fifth vote in every close case. Historian Nancy Maveety titled her book about this period
The Queen's Court.
O'Connor also had something Ginsburg might never have: since the justices vote at conference with the chief first, and then by seniority, O'Connor was the fourth vote in conference. With only Rehnquist, Blackmun (who was soon to leave), and Stevens voting before her, she had a chance to make the argument for her position before there were five votes one way or the other and before the next-closest swing voters—Souter and Kennedy—had to declare themselves. In the very formal precincts of the Supreme Court, where the justices no longer walked the halls, as Brennan had, trolling for votes in advance, getting to make your pitch at conference had become much more important. The only other place a justice could be sure her brethren heard her analysis was through carefully positioned questions at oral argument.

By the time Justice Ginsburg voted in conference, by contrast, the die was usually cast. Ginsburg used oral argument with great skill, to be sure. (Blackmun churlishly kept track of how disproportionately Ginsburg asked questions in sexual-harassment cases.) However, when a case involving women's proper role in society was involved, it was O'Connor who got the chance to make the argument in conference while some of the other eight were still listening. O'Connor was by no means a committed strategist for women's rights. Her ungenerous opinions even in cases where she voted for the woman's side reflected her consensus-seeking, fact-bound style of decision making. Nonetheless, in these early years of Ginsburg's tenure, O'Connor was more likely to vote on the liberal side in women's cases than in any other area. Once she voted on the cases of women's equality, the remaining justices knew there would be at least five for the position. Ginsburg had no need to strive for attention to persuade her brethren to get the votes she
needed: when O'Connor spoke, as the old E. F. Hutton ad had it, people listened.

HAND IN HAND

And so speculation about their “special relationship” arose. The large, blond, senior justice and her small junior liberal female colleague were spotted about the courthouse, one article reported, “clasping hands.” This is not as meaningful as it sounded. Former State Senator O'Connor was renowned in Phoenix circles for her handholding. The small collection of pictures in Joan Biskupic's biography of O'Connor includes a classic photograph of her in a typical moment, clasping the hand of a dinner guest at “Sandra Day O'Connor Day” in 1981. When her former clerk Michelle Friedland was appointed to the federal court of appeals in California, O'Connor administered the oath of office, holding tightly to Friedland's left hand the entire time.

Except for O'Connor's habit of taking the hand of the person she was talking to, the first and second women on the Supreme Court did not in any overt way “hold hands.” By all accounts they did not sneak out at lunch to go shoe shopping either, although Ginsburg's shopping excursions with others—Marty, her pal Nina Totenberg—are well documented. Their clerks did not tell tales of the phone ringing between the chambers even when critical cases about women's rights were coming up for decision.

But together they made paying attention to the distaff side a little more the norm. The Court finally added a women's bathroom in the judges' robing room. Within months of Ginsburg's arrival, she and her sister in law O'Connor were off to the investiture of another female Clinton appointee, Judith Rogers. Deliciously, Rogers was replacing Clarence Thomas on the D.C. Circuit Court of Appeals—another female empowered in part by Thomas's sexual-harassment scandal.

Six months later they spoke together at the installation of Connecticut Supreme Court's chief justice, Ellen Ash Peters, as the head of the National Center for State Courts. They again played
their accustomed roles. Ginsburg chose to highlight the honoree's successful management of the quintessential female problem of competing claims of work and family. When Peters became the first female professor at Yale, “silencing the Doubting Thomases,” Ginsburg noted, who thought women could not both reproduce and succeed in the workplace, “Ellen had one child as an assistant professor, one as an associate professor . . . and her third as a full professor.” At the end of her remarks, the opera-loving feminist asked everyone to join her in “a resounding BRAVA.”

When O'Connor's turn came, she said nothing about Peters's gender-bending career. She hailed Peters as a wonderful person, wife, mother, and friend. She highlighted their common good fortune in such nice husbands and asked Peters's husband—for the first time that evening—to stand up and be recognized. She spoke interestingly and at length about the role of the state courts in the federal system. O'Connor often said that the best thing a woman could do is be visible and do the job the men had kept to themselves. Her version of Justice Peters was completely gender neutral.

In time, the two justices hosted a lunch at the Supreme Court for the D.C. convention of the prestigious International Women's Forum, an invitation-only group of female movers and shakers from all over the world. In welcoming their guests to the Court, Ginsburg again invoked O'Connor's words, this time from a speech that predated O'Connor's tenure on any court: “As society sees what women can do, as women see what women can do, there will be more women out there doing things and we'll all be better off for it.”

In 1997, when Ginsburg was asked to write about her singular subject, “Constitutional Adjudication and Equal Stature,” for the
Hofstra Law Review
, she acknowledged that O'Connor had been on the Court but a year when in 1981 she was first called on to add a woman's voice.
Hogan v. Mississippi
, O'Connor's decision to admit men to the public Mississippi University for Women, Ginsburg noted, tipped the balance on the Court to a narrow 5–4 in favor of integration by sex.

Feminist speaker or not, different voice or no, Sandra Day
O'Connor became a regular character in Ginsburg's narrative—Ginsburg's “savvy, sympatique colleague and counselor.” Ginsburg never told her own story of discrimination and discouragement without invoking O'Connor's treatment upon graduating from Stanford. She cited O'Connor as the source for her stories about the difference women make. Ginsburg usually followed her citation of Justice O'Connor on the similarity between a wise woman and a sage male jurist with a caveat: that women's experience would—and should—cause them to see the world differently. But she emphasized that it was O'Connor who called her attention to the singularity of a woman's voice, using the example of Helen Suzman, for years a lonely voice of opposition to apartheid in South Africa's parliament. And, Ginsburg adds, “the only woman in the legislative chamber.” Thus Ginsburg veils her overtly feminist message with references to the more conservative sister justice. The reference to South Africa's Suzman is unambiguously an homage to O'Connor's courage when she, too, was the only woman in the room.

THIS SHOULD BE RUTH'S

Ginsburg was particularly respectful of O'Connor's casting the fifth vote in the sex-segregated-school case just months into her tenure as the first woman. But when the Court next confronted the issue of sex-segregated public schools head-on, this time in the government's suit to compel the Virginia Military Institute to admit women, Ginsburg was on the bench with O'Connor.

Many other things had changed between O'Connor's 1981 opinion ending sex segregation at the Mississippi University for Women in
Hogan
and 1995, when
United States v. Virginia
arrived at the Court. Most visibly, in 1981 Joe Hogan had to sue the university himself. Once
Hogan
was decided, the Civil Rights Division of the Justice Department began to take on the issue of sex discrimination in public colleges itself, deploying star attorney Judith Keith. When, in 1989, an anonymous female candidate decided her rejection from VMI was sex discrimination, Keith had just finished
several years of hammering on the Massachusetts Maritime Academy to live up to its agreement to admit women on equal footing. Not surprisingly, the Justice Department concluded that Virginia's policy of excluding women from VMI violated the Fourteenth Amendment, which guarantees to all persons the equal protection of the laws. The United States would force Virginia to comply with the Constitution.

Not only had the Justice Department and the membership of the Supreme Court changed but so had the whole landscape of sex discrimination. When Ginsburg started her career at the ACLU, the issues usually involved formal discrimination, such as explicitly unequal pay or exclusion from jury service. But by 1989, when the case against VMI began, no law firm would have dared tell an aspiring associate that the best she could hope for was stenography. Instead, the feminist movement was increasingly confronting something squishier—cultural gender roles, or what Ginsburg always called stereotypes.

The society did not stand still while the movement lawyers cleared the decks of formal discrimination. As the legal action shifted to cases about women's nature, so, too, did the cultural debate. And it was a noisy debate. Carol Gilligan's “difference” argument, that women reasoned in a morally different voice, reflecting concern for others and the maintenance of communal ties, was echoed by sociobiologists, also called evolutionary psychologists. These scholars contended that evolutionary pressures made the sexes foundationally different—male hunters, naturally unfaithful and looks-oriented; women gatherers, monogamous and wallet-oriented.

Thus players with vastly different—indeed, opposite—political agendas converged on the issue of female difference. Feminist difference scholars were contending that public policy should respect women's moral claims and promote community and dialogue. The last thing Gilligan said she wanted was the creation of a leadership class with only male norms of moral behavior. She was outraged at the way her work was used. Evolutionary psychologists, often espousing conservative political agendas, were arguing that efforts to change exploitative male behaviors such as sexual harassment
were futile and would require totalitarian governmental measures. As the VMI case was making its way to the Court, liberals with an interest in helping poor children succeed in urban public schools began agitating for sex-segregated schools. The initiative, while powerfully controversial, gave new respectability to the cause of single-sex schooling.