Sisters in Law (35 page)

LEFT BEHIND

By the time the 2003 federal “partial birth abortion” law reached the Supreme Court in 2007 in
Gonzales v. Carhart
, it no longer mattered what retired Justice Sandra Day O'Connor thought was burdensome. Although the law was drafted to avoid impinging on procedures used before viability, it contained no exception for protecting women's health and was otherwise indistinguishable from the Nebraska law the Court had struck down in 2000. But Sandra Day O'Connor had been replaced by Samuel Alito, and the four conservatives became a majority of five. The “partial birth abortion” law would now stand.

Dissenting, Justice Ginsburg made no bones about the real political explanation for the decision: “Though today's opinion does not go so far as to discard
Roe
or
Casey
, the Court,
differently composed
than it was when we last considered a restrictive abortion regulation
, is hardly faithful to our earlier invocations of ‘the rule of law' and the ‘principles of
stare decisis
.'”

Ginsburg, dissenting, points up the core problem with the case. As bad as it was for the few women affected (most abortions are in the early months), the loss was the Court's symbolic framing of women's status. Since 1971, Justice Ginsburg's real enterprise had been not just the achievement of formal legal equality, but the reconstruction of what it meant to be an authentic and honorable female person. Having the Court recognize women's equal legal rights was a huge achievement, but legal rights were a means to a larger cultural and moral goal. The change in women's prospects also explains some of the impact O'Connor had simply by being such an effective and respected female justice despite her decidedly lukewarm pronouncements on the subject of abortion.

Just shy of forty years after Ginsburg's first victory, Justice Kennedy put Ginsburg's and O'Connor's female beneficiaries in their place. Whether they be administrators of estates, air force officers, grade school teachers, bank tellers, management consultants, law firm partners, or military school cadets, in Kennedy's mind all women's roles pale beside their role as mothers. Indeed, all of human behavior is but the inadequate expression of “[r]espect for human life,” which, he opined, “finds an ultimate expression in the bond of love the mother has for her child.” There is no evidence for Justice Kennedy's concept of how women should feel about their role in the expression of respect for human life, but he believes it nonetheless: “Whether to have an abortion requires a difficult and painful moral decision. . . . While we find no reliable data to measure the phenomenon, it seems unexceptionable to conclude some women come to regret their choice to abort the infant life they once created and sustained.”

Ginsburg was irate: “This way of thinking reflects ancient notions about women's place in the family and under the Constitution—ideas that have long since been discredited.” She unloaded the biggest guns she had, citing the
Dred Scott
of the women's movement,
Bradwell v. State
, which allowed the government
to bar women from practicing law in 1873: “Man is, or should be,” she recites from the old case, “woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. . . . The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.” Compare that, Ginsburg says, with our landmark decision in the VMI case: The State may not rely on “overbroad generalizations” about the “talents, capacities, or preferences” of women; “[s]uch judgments have . . . impeded . . . women's progress toward full citizenship stature throughout our Nation's history.” Such judicial pronouncements about women's place were, she concludes, “long since discredited.”

Worse, under Kennedy's formulation, even if no one can prove that women regret breaking their life-defining bond, Congress gets to decide that they do: “The Act recognizes this reality,” Kennedy opines. But Ginsburg thinks women ought to make up their own minds about the reality of . . . their own minds. “Though today's majority may regard women's feelings on the matter as ‘self-evident' . . . this Court has repeatedly confirmed that ‘[t]he destiny of the woman must be shaped . . . on her own conception of her spiritual imperatives and her place in society.'”

What a difference one retirement makes. “The word I would use to describe my position on the bench is ‘lonely,'” Ginsburg, seventy-three, said in an interview a year after O'Connor left. “This is how it was for Sandra's first twelve years. Neither of us ever thought this would happen again.”

Now that their time together was over, the remaining female justice summed up the sisterhood perfectly. The men might have seen O'Connor as indistinguishable from themselves (and cherished her for that), but Ginsburg saw a world of difference between the two women and their seven male brethren. She and Justice O'Connor “have very different backgrounds,” she admitted. “We divide on a lot of important questions, but we have had the experience of growing up women and we have certain sensitivities that our male colleagues lack.”

“I didn't realize how much I would miss her until she was gone.”

Sandra Day O'Connor and Ruth Bader Ginsburg at the U.S. Capitol, March
28, 2001
.

David Hume Kennerly/Getty Images.

Ginsburg's clerks did not see her as a lonely outlier in the years immediately following O'Connor's departure. They saw her as a living legend. Cozily ensconced with her “family” of four law clerks, two secretaries, and a messenger, Ginsburg's chambers busily, as one clerk described it, “drank champagne from a fire hydrant” as they addressed a stream of cases of the highest order of interest and significance. Pausing only to celebrate every single birthday of anyone in the family with a wonderful cake from master chef Martin Ginsburg and presents for all, the young lawyers finished their year of service with a dramatic presentation parodying their august employers.

But Ginsburg, the “Thurgood Marshall of the woman's movement,” found herself in the position not of Thurgood Marshall but of John Marshall Harlan, Oliver Wendell Holmes, Jr., and Louis D. Brandeis, the Supreme Court's “great dissenters.” In disagreeing with their colleagues at the time they served among them, these legendary jurists anticipated every core development of twentieth-century constitutional law: the dismantling of Jim Crow segregation, the protection of free speech, and the allowance of economic regulation. The renowned Supreme Court decision in
Brown v. Board of Education
effectively adopted Justice Harlan's scathing dissent from
Plessy v. Ferguson
, the decision upholding segregation in 1896. (Years before she became the dissenter in chief, Ginsburg had sponsored a book about Harlan's wife, Malvina, who encouraged him to resist the other justices' shameful concession to the Jim Crow south.)

Dissenting was not her role of choice: she would have preferred to be writing the opinion for the winning majority. When she won—or others, after her, won cases that invoked Stephen Wiesenfeld's long-ago case—she would write a crowing letter to her favorite client. From
Reed v. Reed
in 1971 to
U.S. v. Virginia
twenty-five years later—“woo hoo,” as she gleefully put it to Wiesenfeld—Ginsburg loved a victory.

FROM WOO HOO TO BOO HOO

Her long string of victories was not to last. A year after O'Connor left, Ginsburg uncharacteristically read two dissents from the bench in one term. Justices dissent all the time, but they rarely read the opinions aloud. As Ginsburg puts it, “It signals that, in the dissenters' view, the Court's opinion is not just wrong, but grievously misguided.” Prior to 2006, Ginsburg had read a dissent only once every couple of years. When a member of the Court takes advantage of the chance to speak their disagreement out loud, they are choosing to draw the whole country's eyes to the seriousness of the Court's decision.

Such a delivery is treated as an act of legal performance art. For years, the Court has made and released audio recordings of its public deliberations, including Ginsburg's dramatically worded dissents. In addition, at least since Bob Woodward's blockbuster tell-all book
The Brethren
, the Court has been the subject of intense scrutiny by the media. Dozens of reporters have the high court as their regular beat. When the tiny justice clears her throat and unfolds a sheaf of papers on announcement day, reporters on the Supreme Court beat sit up. It would be a good story.

DISSENTING TO CONGRESS

Both of Ginsburg's performed dissents in 2007 came in cases involving grievous losses to the rights of women. One was
Gonzales
, Justice Kennedy's decision for five upholding the restraints on abortion. The other was
Lilly Ledbetter v. Goodyear Tire and
Rubber
, cutting off a sex-discrimination claim because the woman didn't sue fast enough.

Lilly Ledbetter had been discriminated against in the 1970s; afterward many discriminatory performance evaluations kept pushing her pay down. Starting from such a low base, every successive paycheck until the day she retired was lower than it would have been if she had been fairly treated in the early years. In 1998 she finally sued. Sorry, said the Court, Goodyear didn't evaluate you unfairly within six months of the time you sued, and that's the limitations period under the Civil Rights Act. That your lower paychecks rested on the past discrimination does you no good.

Not only did Ginsburg read her dissent aloud, she used the moment to point squarely at her new colleague, opening with the phrase “Justice Alito announced.” By contrast, her written dissent starts in the much more conventional fashion with the facts of the case: “Lilly Ledbetter was a supervisor at Goodyear Tire and Rubber's plant in Gadsden, Alabama.” Being now the only one on the Court with the experience of growing up being a woman, she felt obliged to speak her truth: “Pay disparities often occur, as they did in Ledbetter's case, in small increments; only over time is there strong cause to suspect that discrimination is at work,” she wrote. And, Ginsburg continued, “An employee like Ledbetter, trying to succeed in a male-dominated workplace, in a job filled only by men before she was hired, understandably may be anxious to avoid making waves.”

Justice Ginsburg had a very different audience than Samuel Alito in mind. The old movement activist looked at Lilly Ledbetter—silver-haired Alabama wife and mother, only female supervisor at her southern rubber plant, and victim of decades of discrimination—and she saw an irresistible political opportunity. Ginsburg aimed her dissent directly at Congress: “This is not the first time the Court has ordered a cramped interpretation of Title VII, incompatible with the statute's broad remedial purpose,” she wrote. “Once again, the ball is in Congress's court. As in 1991, the Legislature may act to correct this Court's parsimonious reading of Title VII.” A year later in 2008, Lilly Ledbetter addressed the
Democratic National Convention, asking for a change in the law for the benefit of other women and minorities to come. Each lower paycheck should violate the Civil Rights Act anew. On January 29, 2009, President Obama signed his first bill, the Lilly Ledbetter Fair Pay Act, into law.

HER COLLEAGUES JUST DON'T GET IT

But it was lonely. Reporters at oral argument that spring in
Safford School District v. Redding
noticed a distinct waspishness in the solitary female's questioning. Ginsburg's attention was powerfully drawn to the plaintiff in that case, thirteen-year-old honor student Savanna Redding. Redding was in court because, when talk of illicit ibuprofen use came to the attention of the school authorities, they ordered her to take off her clothes and pull the pants and bra away from her body and shake out any errant painkillers. Finding nothing, the principal sat her in the hall outside his office for hours until she finally was allowed to call her mother. The mother, predictably, sued. The case made its way to the Supreme Court on the issue of whether the school acted unreasonably in searching Savanna Redding in this fashion.

The oral argument was inexplicably merry to Ginsburg's way of thinking. While the ever-boyish Justice Breyer relished a walk down memory lane to happy naked days in the locker room, and the justices had good fun about what he kept in his underwear, Ginsburg angrily tried to get her brethren to understand how a young girl would react to being told to pull out her panties and shake. “It wasn't just that they were stripped to their underwear!” she interrupted. “They were asked to shake their bra out, to stretch the top of their pants and shake that out!” After the argument, she took the unusual step of giving an interview to
USA Today
complaining that her colleagues didn't get what such a demand would mean to a sensitive thirteen-year-old.

After all their insensitive shenanigans, the Court
did
rule 8–1 that the search was unconstitutional (although they ultimately found the school administrators to be immune from suit because
the law had not been clear). And that summer Ginsburg got a nice surprise. Although she must have been sad to see Justice Souter—whom she had liked and called her “date” when he accompanied her to Court functions—step down, President Obama selected another woman to replace him. When Judge Sonia Sotomayor of the Second Circuit was confirmed in August 2009, Ginsburg was no longer alone. “It is good,” she wrote to Wiesenfeld a few months later, “to have her company.”

LOVE LOST, WORK LEFT

Even with her victories in Congress and in the Redding case, 2009 was a tough year. A month after Obama signed the Ledbetter Act, a routine CT scan seemed to indicate cancer in her pancreas. On February 5, 2009, the Court announced, she was in surgery. Although the surgery did turn up a tiny malignancy, the doctors pronounced themselves satisfied with her prospects in this most deadly cancer, caught early and by chance. Thirteen days later, she wrote to Wiesenfeld to assure him she was “mending steadily” and that she was planning to be back at the Court for its next sitting, February 23. And so it was that she was there for Savanna Redding that spring when her male colleagues were having so much fun with the brassiere-and-panties discussion.

As 2009 drew to a close, though, there was another crisis. This time Marty was having “health problems.” Some problems: he had a tumor at the base of his spine and was in pain, or as the legendarily understated jurist put it, “considerable discomfort.” As of March of the new year, they were still hoping. Marty saw a pain doctor for his “discomfort,” and their daughter, Jane, came for a visit to raise his spirits. On June 27, 2010, just after their fifty-sixth wedding anniversary, he died.

Twenty-four hours later, Ginsburg was on the bench. She was okay, she believed, thanks to “the good job Marty helped” her get. “I had a life partner who thought my work was as important as his,” she described their relationship, “and I think that made all the difference for me.” The year he died, she listed their assets on
the required forms as ranging up to $45 million, surely enough for some modest shoe shopping. He even occasionally went shopping with her. And he made sure that the shoes they bought sometimes touched the ground, teasing her mercilessly for her legendary eccentricities and calling her “Her Royal Highness.” At one of the dinner parties they held every year for the clerks, he took on her poky eating habits and demanded that they “let these kids go home. If they wait for you to finish eating your dinner,” Marty told the justice, “they will be here all night!”

Indeed, he had always been her not-so-secret weapon. From 1976 until the day she was appointed to the Supreme Court in 1993, movers and shakers in every Democratic administration received an unending stream of letters about her virtues, and visits from Marty, his law partners, and his many devoted friends, to promote her career. He moved to Washington the minute she got her first judgeship.

Even Ginsburg's former Columbia colleague Professor Henry Monaghan, a curmudgeonly dead ringer for the fictional Professor Kingsfield from
The Paper Chase
, melted in the warmth of the Ginsburgs' bond. “Talk about a love affair,” he remembers of a dinner with the couple in Paris. “It was so clear they had a certain routine, it was a very moving experience. In their gestures, you just got a feeling, you could just see it, it's like the ballet is music made visible as if you were brought into another dimension!”

GIRLS DON'T RULE

The summer after Marty died, Ginsburg's old friend the former dean of Harvard Law School, Solicitor General Elena Kagan, joined the Court in another history-making development: three of the nine justices were now women. “No one,” Kagan later reported, ever mixed her up with either her senior colleague or her immediate predecessor, Sonia Sotomayor. Justice Ginsburg pronounced herself officially thrilled.

After Sotomayor and Kagan, liberal commentators began
making noises about Ginsburg—and her younger liberal colleague, Stephen Breyer—retiring to make room for more good, young Obama appointees. Ginsburg was not pleased, making her signature move to push back by granting a series of interviews with reporters emphasizing how mentally and physically fit she was. The only standard must be, she told journalist Joan Biskupic: “Am I equipped to do the job?”

Regardless of her fitness, the calls for her to step down reflected that, as Justice Brennan put it a half century before, even with a bench full of women, size matters. Specifically the number five. Ginsburg had to know that. With O'Connor gone, the decision almost always came down to one guy: Justice Anthony Kennedy. In the 2010 and 2011 terms, which ended in June 2012, he agreed with the liberals in nine and with the conservatives in ten close cases. In the last two terms—2012 and 2013, ending June 2014—he was more often on the conservative side.

Every time Kennedy swung the Court to a conservative outcome, Ginsburg disagreed. With Stevens gone, she had inherited the power to assign the dissent. On most of the cases—and on the cases Ginsburg chose to emphasize during those terms—her two female colleagues and Stephen Breyer were all in agreement. She knew exactly how powerful a dissent could be. No surprise, then, that she kept many of the most important ones for herself.

SPEAKING TRUTH ABOUT POWER

On June 27, 2011, she told the public two stories: one about a man exonerated mere weeks from the electric chair, and one about the man whose fingers were cut off by a malfunctioning scrap metal machine. The two dissents are a graphic reminder that Justice Ginsburg is not just an advocate for women; her judicial philosophy is rooted in a commitment to equal access to justice that goes all the way back to her years at Cornell with her mentor Robert Cushman.

Neither of her 2011 spoken dissents involved her usual focus on equality of sex or even, overtly, race. Indeed, she is often criticized
by progressives for her narrow and reluctant extension of rights against police misconduct. Lawyer's lawyer that she was, however, when it came to unequal access to justice, it was the court system that attracted her most passionate concern.