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Women’s Work

A lawyer-philosopher chronicles the ceiling-smashing rise of the Supreme Court’s first two female justices.

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Linda Redlick Hirshman ’66 means no disrespect when she refers to the subjects of her new book as “Sandra” and “Ruth.” After all, Hirshman spent three intense years with them—in her own head, at any rate—as she researched and wrote about the first two women to serve on the Supreme Court, and the feminist advances that helped them get there. “I do feel like I know them,” says Hirshman, a lawyer and philosopher who specializes in writing about social movements. “I can’t resist calling them by their first names, because when you live with the subjects of a biography for as long as I did, you do get to know them. It was wonderful to be in their company all those years.”

Book cover for Sisters in LawPublished in September by Harper, Sisters in Law chronicles (in the words of its subtitle) “how Sandra Day O’Connor and Ruth Bader Ginsburg went to the Supreme Court and changed the world.” In it, Hirshman describes how two women from different backgrounds overcame the sexist barriers of their time to rise to the land’s highest court. O’Connor was a country girl, the daughter of an Arizona cattle rancher, educated out West (at Stanford). Ginsburg was a city kid and a product of the East: the Brooklyn-born child of Russian-Jewish immigrants, she graduated from Cornell in 1954 with a degree in government and studied at Harvard Law before transferring to Columbia, where she tied for first in her class.

Like Ginsburg, Hirshman majored in government on the Hill. After earning a JD from the University of Chicago she practiced labor law, representing unions in three cases that went before the Supreme Court (and arguing two of them herself). She went on to earn a PhD in philosophy from the University of Illinois, Chicago, and taught at Brandeis until retiring from academia in 2002. Her previous books include The Woman’s Guide to Law School; Hard Bargains: The Politics of Sex; and Victory: The Triumphant Gay Revolution. Arguably her most high-profile title is Get to Work: And Get a Life, Before It’s Too Late, which argued that women who opt out of the workforce to raise children do both them­selves and society a disservice. When it was published in 2006—garnering Hirshman an appearance on the “Colbert Report”—it sparked a firestorm among editorial writers, blog­gers, and stay-at-home mothers, many of whom excoriated her in vivid language. Asked if the experience has made her gun shy, the author just chuckles. “I represented organized labor in the state courts of Georgia,” says Hirshman, who splits her time between Manhattan and Arizona and is currently at work on a dystopian novel. “So people said, ‘Linda Hirshman makes me vomit’? I had actual working men and women depending on me for their survival. So, in fact, stay-at-home moms did not scare me.”

When Hirshman started work on Sisters in Law, she met briefly with both O’Connor and Ginsburg, but neither sat down with her for an interview. Ginsburg agreed to participate if O’Connor would, Hirshman says, but O’Connor declined—though Ginsburg did send occasional packets of background material and gave other people the go-ahead to cooperate with the research process. Hirshman notes that among the many lessons she took away from her two subjects was the healing power of work in the wake of grief. “My husband had died three months before I got the book contract,” Hirshman recalls. “As Ruth and Sandra both said in interviews after their husbands died, work is the great salvation in that hard time. So I worked from the moment I got up until the moment I was too tired at the end of the day to do anything else.” The resulting volume has received solid reviews, including a star from Library Journal. While veteran New York Times Supreme Court re­port­er Linda Greenhouse opined that the book “raises more questions than it answers,” Kirkus called it “an intelligent, evenhanded look at a changing society and its legal foundations.” 

Both Ruth and Sandra clearly understood that they were entitled to govern

Despite her subjects’ contrasting biographies and political persuasions—O’Connor, a legis­lator in conservative Arizona, was nominated by Republican Ronald Reagan, while Ginsburg was a former American Civil Liberties Union attor­­ney tapped for the court by Democrat Bill Clinton—Hirshman notes num­er­ous commonalities, not least of which is how they both faced down gender discrim­ination. After graduating from Stanford Law, O’Connor was snubbed by dozens of firms—except one, which condescended to offer her a job as a legal secretary. Despite a glowing endorsement for a Supreme Court clerkship from the dean of Harvard Law, Ginsburg was rejected by Justice Felix Frankfurter solely because of her sex. “Both Ruth and Sandra clearly understood that they were entitled to govern—and nothing that the world told them about how, being women, they were not entitled convinced them,” Hirshman says. “They understood that this entitlement was not theirs alone; if discrimination against them was wrong, then discrimination against other women was also wrong. So when they began to succeed, they did not pull the ladder up after them.”

— Beth Saulnier

Test Cases

Legal mind: Ginsburg at work in 1977

Legal mind: Ginsburg at work in 1977

In an excerpt from her new book, Linda Redlick Hirshman ’66 describes how Ruth Bader Ginsburg ’54 entered the big leagues of gender rights law. Then in her thirties and a professor at Rutgers University, Ginsburg became involved in several prominent discrimination cases—one of them steered to her by her husband, prominent tax attorney Martin Ginsburg ’53.

In a scene right out of Hepburn and Tracy’s battle-of-the-sexes movie Adam’s Rib, Professor Ginsburg was working in her home office in their upscale apartment one night in 1970 when Marty waltzed into her sanctum with a tax advance sheet. Greeted with an impatient “no time for tax cases,” Marty persevered. This one she had to read.

Marty’s case involved a lifelong bach­elor, Charles Moritz, the sole support of his eighty-nine-year-old widowed mother. He tried to collect the $600 deduct­ion the tax code provided for care­taking costs while he was out earning a living as a med­­ical editor. The Internal Revenue Code, having no truck with lifelong bachelors and their mothers, allowed only the dependency deduction for care­taking women, wid­owers, and the unlucky married man whose wife is “incapacitated.”

The line separated men from women, full stop. There were no distracting issues here, unless the court was willing to say that it was unnatural for men, rather than women, to care for their mothers. From Ruth Ginsburg’s strategic point of view, it did not matter whether the plaintiff was male or female. The only issue was whether, in 1970, the government could treat one sex unequally simply because . . . it could. Civil rights lawyers are always looking for the perfect case, one that squarely presents the injustice of the distinctions, with no distracting side issues and with a very appealing plaintiff to represent the cause. The Ginsburgs decided Charles Moritz was the plaintiff for them. (When Moritz first got their call, he thought someone was playing a joke. Why would fancy New York lawyers be bothered with him?) Unlike Adam’s Rib, where the defense attorney played by Katharine Hepburn was at war with her prosecutor husband (Spencer Tracy) in the case against Judy Holliday’s bloodthirsty wife, in the Moritz case the Ginsburgs were on the same side. Moritz was, of course, ecstatic to have them. Since he had lost before the tax court, the next step in his case was to appeal the decision to the local federal court of appeals in Colorado, where he lived. The Ginsburgs wrote the papers to start the appeal and began working on the brief. When it was done they sent some copies around to lawyers they thought might be interested.

The liberal NYU professor Norman Dorsen was sitting in his faculty office at the Law School when the Ginsburgs’ brief arrived. Dorsen, who was an important general counsel at the national office of the American Civil Liberties Union, thought it was a great job. “Marty doing the tax side and Ruth making the equal protection argument, I wrote her and said it was an absolutely brilliant piece of work.” Dorsen—and the ACLU—mattered. That’s why the Ginsburgs sent him their brief. They were looking for help with the thousands of dollars of expenses they knew they would incur representing Charles Moritz in the federal court of appeals.

excerptcollageBy 1970, anyone who was anyone in social change was banging on the door of the ACLU. Ruth and Marty Ginsburg, however, weren’t just anyone. At Rutgers, Ruth was already starting to take sex-discrimination cases for the New Jersey ACLU. One day that fall, she opened her office door at Rutgers and who should be standing there but Mel Wulf, the dining hall waiter at her old summer camp, Camp Che-Na-Wah. Wulf, the legal director of the national ACLU, was visiting Ruth’s former student and present colleague Frank Askin, who was already a member of the ACLU board. After the customary chat about Swedish civil procedure, Ginsburg told Wulf she was doing a sex-discrimination case for the New Jersey ACLU. He was not impressed with her little local litigation, although he later called this the moment he “plucked Ruth Bader Ginsburg from obscurity.” As usual with Ginsburg, it was more like she did it herself (backwards and in high heels). She sent Wulf a follow-up letter with an appeal for help with the Moritz case. Getting no response, Ruth deployed her second arrow—a clever, musically themed letter to Wulf about the value of the Moritz case, in the form of a play on Gilbert and Sullivan, familiar from their camp productions.

Her interest in Wulf intensified when she read that the ACLU was already in charge of Reed v. Reed, the first constitutional sex-discrimination case to go to the Supreme Court since 1961. The Reeds, separated and then divorced, were in court because the State of Idaho had a law preferring men over women as the administrators of dead people’s estates. When the Reeds’ son died, Cecil Reed was appointed executor, over the mother, Sally. Sally Reed’s sense of injust­ice may have been fueled by the tragic circumstances of her son’s death. A judge had ordered Sally to turn her son over to his father under the then-standard doctrine that a child old enough to need education about the world should be transferred to his father, once the “tender years” spent with his mother were over. Right after she relinquished him to his father, the boy had killed himself. Now his father was going to administer their son’s estate.

Ginsburg asked to see the papers Mel Wulf was drafting to appeal Reed v. Reed to the high court. Her reading was that Wulf wasn’t moving aggressively enough to change the legal landscape for women. She wrote to Wulf again and suggested that perhaps he could use a woman’s touch with his brief to the Supreme Court on behalf of women’s rights. Teaching a course and trolling for relevant cases, skinny, bookish Ruth Bader Ginsburg took a look at Reed v. Reed and decided to stand on that lever and move the world. But first a word or two about that world.

There’s a reason Ginsburg was in favor of women having a constitu­tional amendment of their own, the Equal Rights Amendment. The Four­teenth Amendment to the United States Constitution, which mandates the equal protection of the laws, like all of the amendments passed after the Civil War, was interpreted to apply to discrimination on the grounds of race (or servitude). If a law discriminated on the basis of race it was suspect, and had to be justified by a compelling state interest. After all, that’s why the Civil War was fought.

Until Ruth Bader Ginsburg started her crusade, trying to get constitutional protection against discrimination for any human person other than a black person was almost impossible. Legislatures “discriminate” all the time in the ordi­nary course of making laws. Driving fifty miles an hour, illegal; forty, legal. Voters at twenty-one, disenfranchised at twenty; employers of more than fifty covered by the labor law, those employing fewer than fifty not covered. Judges and scholars worried that once these legislative decisions to divide the population could be challenged in court, where would the challenges stop? It’s one thing to say schools couldn’t be segregated into black and white, but demanding the legislature to justify all classifications would lead to anarchy.

Almost four decades before the reborn feminist movement, the Supreme Court had said that the standard for review of most laws would be whether they are rational. Only a tiny category of laws would be looked at hard, what the Court called a strict-scrutiny standard of review. Those were laws that discriminate on race or alienage and laws that impact the explicit protections of the Bill of Rights, such as freedom of speech and religion. Otherwise, all the law required was that the legislature have some rational basis for distinguishing between its citizens, including its male and female citizens. Rational basis was the lowest standard of judicial review of legislation.

When Ruth Bader Ginsburg took pen to hand for the mother who wanted a fair shot at administering her dead son’s estate, the Court had repeatedly turned back pleas to stop the states from treating women differently from men. Just ten years before, in Hoyt v. Florida, the Court had said it was okay to discourage women from serving on juries. Between 1961 and 1971, however, lay the earthquake we call the feminist move­ment. Now seminars full of newly enrolled female law students around the country were turning up examples of how the discriminatory laws hurt women. They wanted the equal protection of the laws applied to them, too. Could the feminist law professor Ruth Bader Ginsburg per­suade the Court to apply the race-based Civil War amendments to the altered land­scape of sex?

Paradoxically, the American legal sys­tem is as conservative as the American Revolution was revol­utionary. Despite the revolution, America inherited its legal system from the mother ship, England. In our mutual system of common law, which developed over cent­uries, deciding one case at a time, courts can make law. But because courts are usual­ly not elected, when they make com­mon law, they are reluctant to make it seem as though they are legislating from the bench. They pretend they’re just app­­lying what the prior cases required. The federal courts, which mostly inter­pret the U.S. Constitution, are also not elected. The Constitution is so old, and the language so broad, that when a court lays down new rules, it appears to be just making stuff up. So the courts try really hard to convince themselves that what they are doing is just discovering what the Constitution meant.

Asking a court, conservative by nature and history, to make the leap from pro­tecting the constitutional beneficiaries of the Civil War to applying equality to their wives was a big jump. At that time, Justice William Brennan, the liberal judge Ginsburg was counting on, wouldn’t even hire a female student to be his law clerk.

In 1969 the “liberal”Harvard Law Review published a 150-page article on equal protection, the very constitutional doctrine Ginsburg was invoking. The word “sex,” as in “sex discrimination,” appears four times—three to distinguish it from genuinely suspect categories such as race and once in a footnote to ask whether “experience teaches that the biological differences between the sexes are often related to performance.” The brainiacs at Harvard then offered their ultimate argument against constitutional equality for women: Who could imagine gender integration in the military?

Ginsburg had her work cut out for her.

From the book SISTERS IN LAW: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World by Linda Hirshman. Copyright © 2015 by Linda Hirshman. Reprinted by permission of HarperCollins Publishers.

 

PHOTOs: Collection of the Supreme Court of the United States

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