Sisters in Law

by Linda Hirshman

  Where did this extraordinarily rare degree of self-confidence come from? The critical moment of any social movement comes when someone who can think outside the box figures out that other people, rather than, say, nature, or even nature’s God, are the source of their oppression. O’Connor and Ginsburg each figured that out. If they had internalized the low opinion of the people around them, Justice O’Connor might have been a legal secretary, and Justice Ginsburg might have learned to cook, instead of being the heroines of the feminist movement. O’Connor’s father was an intellectual, trapped on an isolated ranch by family obligations. Domineering and opinionated, Harry Day used to spend hours talking politics with his firstborn child. During her critical early years, there simply was no society to teach her her place. After the tragic early death of an older sister, Ginsburg was the only child of a gifted woman, who had seen her brother go off to college while she stayed home. All her first-generation immigrant dreams rested on her bookish, beautiful daughter.

  Believing they were entitled to rule, O’Connor and Ginsburg treated their opponents—from conservative Republican legislators who served with O’Connor in the Arizona Senate in the ’70s to snarky titans of all-male law school faculties when Ginsburg was teaching—as if they were all members of the same club. Reminiscing about the famed jurist Learned Hand, who had refused to hire her when she graduated in 1957, Ginsburg, years later, was fulsome in her praise. Completely ignoring his blind spot on the subject of women, she wrote only about what a great jurist he was. This is not a matter of the oppressed identifying with their masters. In praising him, she sets herself up as someone whose opinion matters in the elite circles where they both, she assumes, belong. The lawyer who offered to give O’Connor a hand when she became the first woman at the Arizona attorney general’s office later remembered embarrassedly how little she needed his assistance! She had no problem with the task of being an assistant attorney general in Arizona at all.

  When pressed to admit they were inferior, they took offense. In 1952, the law firm of Gibson, Dunn & Crutcher interviewed a young Sandra Day fresh out of Stanford Law School and suggested she might find employment with them as a legal secretary. After all, they would never hire a woman lawyer. Three decades later, O’Connor, now Justice O’Connor, gave a wicked get-even speech at the firm’s hundredth-anniversary celebration, a speech she called the most fun talk she’d ever delivered. Ginsburg so often told the story of the law school dean asking her what she was doing taking a seat at Harvard from a deserving man that the dean finally went public asserting it had been a joke.

  But self-esteem is not enough to change the world. If the two had thought that they were the only women worthy of governing, they would have been useless to the movement. They might even have been harmful, like oppressed people who gain access to power and then pull the ladder up after them. Instead, the two jurists’ clarity about their rightful place among the legal elite actually enabled them to see the injustice of women’s inequality in general. If Gibson, Dunn had no business relegating O’Connor to the job of secretary because of her sex, why would they be any more justified in turning down another woman?

  Where did this combination of self-respect and regard for others come from? In addition to their unique family histories, they sprang from cultures of empowerment. O’Connor came from an open western culture that placed a high value on volunteering. Frontier communities such as the American West had no manpower to waste. This unique culture allowed women a robust public role despite their exclusion from high-level formal employment. In institutions such as the Junior League and museum boards that fell from favor after feminism opened paid jobs to women, the women in O’Connor’s world demonstrated their worth to anyone who was noticing. And O’Connor was noticing. She once said that she went back to practicing law after a few years of tending to her family in order to get some respite from the demands of the Junior League! Her reliance on voluntarism was a constant theme in her life, public as well as private.

  Ginsburg came of age in the early years of the liberal revival. At college, she was the protégée and research assistant of a legendary liberal, Robert Cushman. Her professors at Cornell, like the men who taught her at Harvard, recognized at once that her talents entitled her to claim the goods of liberalism—equality, self-fulfillment—and they advocated for her tirelessly. By the time Ginsburg got her law degree in 1959, the dam was about to break in American culture. It would be the ’60s. When the time came, both O’Connor and Ginsburg were prepared by their upbringing and culture to see the injustice of women’s inequality.

  Not only did O’Connor and Ginsburg recognize that they and other women were being treated unjustly, they recognized that a lot of the problem and, therefore, the solution, lay with the legal system. The laws of all fifty states (and the federal government) treated women and men differently. Inequality was such a given at the time that it demanded a profound clarity of vision for women to figure out that it was wrong. The two arrived at this similar insight by somewhat different paths. O’Connor had been inspired to study law by a desire to make a difference, any difference. Since she was very capable of recognizing her own value, laws treating women differently from men struck her as unjust immediately. Ginsburg came to law with a clear liberal legal agenda. One of the touchstones of American liberalism is that the Constitution exists to protect people against an unjust state. Liberalism suited her perfectly for her future role as a crusading lawyer. Of course, neither O’Connor nor Ginsburg graduated law school with a visible commitment to the then nonexistent women’s movement. Their deep commitments to making a difference and to equality, however, predisposed them to be useful when the movement came.

  They also shared a capacity to take their revenge, cold. After her new colleague Justice William Brennan insulted Justice O’Connor in an over-the-top dissent during her first year on the Court in 1981, he found her mysteriously immune to his vaunted political charms, charms he used to get the five votes he needed on the nine-justice court. She never said anything. But he called his dissent “the worst mistake I ever made.” When, at the beginning of her activism in 1970, Ginsburg was trying to get a piece of the action in the first women’s Supreme Court case of the new era, Reed v. Reed, her contact at the ACLU, Mel Wulf, did not respond enthusiastically to her offers to help. So she and her husband reached out to other contacts at the ACLU who were more excited about her talents. Ginsburg and Wulf appear together on many briefs in women’s rights cases after she came to the ACLU in 1972. But six years later, when he was ousted from his staff job as legal director in an internecine battle, Ginsburg, by then one of four powerful ACLU general counsel, “didn’t say a word,” he says, to save him.

  When they could not get even, they would act as if they were not mad at all. As Ginsburg often told her avid audiences, on the eve of her wedding, her mother-in-law bequeathed her a pair of earplugs and shared the secret of a good marriage: “sometimes you have to be a little deaf.” The liberal Justice Ginsburg’s decades-long odd-couple friendship with her ultraconservative colleague Justice Antonin Scalia is famous. Less well known is that for years after she became the lead litigator for women’s equality she corresponded in the friendliest tones with the legendary antifeminist University of Chicago law professor Philip Kurland. O’Connor was a visible supporter of the women’s Equal Rights Amendment, yet she maintained a lifelong friendship with the conservative Barry Goldwater, an early and vocal opponent. Perhaps their firm belief that they were natural members of the formerly all-male elite explains why they could turn a deaf ear to powerful colleagues who were making life so much worse for women. After years of correspondence, when Ginsburg wanted Professor Kurland to help her daughter, then a student at the University of Chicago, she simply wrote him an adorable note describing her daughter’s merit, just as men in power have always done. When anti-abortion activists tried to keep O’Connor off the Court in 1981, Barry Goldwater, still powerful, announced that anyone who opposed her should be spanked. I
t pays, sometimes, to be a little deaf.

  Like all disempowered individuals, women tend to be viewed generically. When Ginsburg was appointed to the Supreme Court in 1993, the National Association of Women Judges had a party. They gave each of the two women on the Supreme Court a T-shirt. Justice O’Connor’s said, “I’m Sandra, not Ruth.” Ginsburg’s said, “I’m Ruth, not Sandra.” Sure enough, every term for years after Ruth’s appointment, some hapless lawyer called them by the wrong name. But although they were similar, they were not generic. Similar and different, once acquainted (they met shortly after O’Connor was appointed) they formed a productive relationship. From her appointment in 1981 until right after Ginsburg joined her, O’Connor took more law clerks from Ginsburg’s D.C. Circuit chambers than any other source. Neither bosom buddies nor mean girl competitors, as the moment of acknowledgment in the VMI decision perfectly reflects, the two justices hit the sweet spot of affectionate alliance. For anyone who aspires to lead a social movement, their relationship alone is an inspiration.

  Barriers didn’t stop them, mockery didn’t faze them. While researching this book in the Arizona state archives, I was approached by one of the librarians. She wanted me to know that she had gone on a field trip with Justice Sandra Day O’Connor years before. A lawyer was writing an article about a historic case that originated in Arizona mining country, and he was leading an expedition to the sites where the dispute arose. By chance Justice O’Connor was in Phoenix, where she maintained a home. When she heard that one of her pals, an Arizona State Supreme Court justice, was going on the trip, she decided to go, too. As the vans rumbled across the high desert en route to lunch at a local ranch, they came to a gully that was running with floodwater too deep to cross. They were marooned for several hours. The situation worsened rapidly when Justice O’Connor revealed that she had to pee. As the organizers sat looking stunned and helpless, the justice clambered out of the van.

  “Don’t worry about me,” she told the assembled barristers. “I’ll just find a mesquite bush to go behind.” Seeing their reaction, she added, “I grew up on a ranch!” And so she did. “I’ll never forget it,” said the archivist, “a justice of the Supreme Court of the United States dropping trou behind a mesquite tree.”

  When Ginsburg was nominated to the Supreme Court in 1993, someone sent her a fax relating that one of her old law school classmates told a meeting of his Rotary Club that the guys in her law school class used to call her by the nickname “Bitch.” “Better bitch,” Ginsburg responded, looking back on her journey from the derisive Harvard Law School scene to the highest court in the land, “than mouse.”

  Part I

  Sandra and Ruth Come into Their Own

  Columbia Law School

  Ruth Bader Ginsburg in 1972, the year she became the first female tenure-track faculty member at Columbia Law School.

  1

  Country Girl, City Kid

  GROWING UP ON A RANCH

  Sandra’s father, Harry Day, wanted to go to college. He thought he’d go to Stanford after serving in World War I. But just as he set out for college, his father, H. C. Day, died, leaving his parched and dusty family ranch in southeast Arizona in terrible financial straits. Harry had to leave California to see if he could rescue the cattle-raising operation. He never got to go to college. It was one of the regrets of his life.

  But he was lucky in love. In 1927, on a cattle-buying trip to El Paso, he met Ada Mae Wilkey, from an El Paso ranching family, whom he had once known as a girl. Ada Mae, a college grad married briefly and abruptly divorced in the 1920s, had a checkered past. Still, her family didn’t want her marrying Harry Day and living on that primitive ranch with no power and no water. So the couple eloped.

  Ada Mae was a trouper. She planted a garden around the little adobe house in the dry landscape. She played the piano and cooked huge meals, for the help or for parties. Biographer Joan Biskupic describes Sandra’s parents as presenting a decidedly mixed message, the father “a Gary Cooper individualist” can-do type, the mother a stockinged woman in a frock in the ’30s dust bowl, always “a lady.”

  When, in 1930, Ada Mae was ready to give birth to the baby girl who would become Justice O’Connor, she went to El Paso, where there were modern health services. After a time, Harry Day came to visit his firstborn, Sandra.

  DA, as she calls him, is the unrivaled star of O’Connor’s childhood memoir Lazy B: Growing Up on a Cattle Ranch in the American Southwest. The justice’s brother, Alan Day, who wrote the book with her, vividly recalls his oldest sibling as the favorite. His father “was on his best behavior when she was around, because Sandra would bring up stimulating subjects that he would want to talk about. And they would mentally head down the path together.” (There was also a sister, Ann, eight years younger than Sandra.) Harry Day was a vociferous conservative of the pure free-market variety. Self-reliance and individual responsibility were his touchstones. When Sandra was six, her parents sent her away to El Paso to live with her grandmother during the school year and go to proper schools. She found her grandmother totally annoying: “My grandmother was a nonstop talker. If her eyes were open, her lips were moving. It created quite a problem for all of those years, but somehow we survived.” Despite her pleas to return, with the exception of a single year in local schools, that’s where she stayed. There were simply no schools anywhere near the enormous cattle ranch.

  It was not easy being Harry Day’s favorite kid. When she was fifteen, she was driving the ranch truck across the unmapped terrain of the huge isolated ranch to bring lunch to her father and the crew when she got a flat tire.

  “I knew,” she recalls in Lazy B, “no one would be coming along the road either way to help. If the tire was to be changed, I had to do it.”

  But when she jacked it up, the lug nuts were stuck and she could not get the tire off.

  “Finally I decided I would have to let the truck back down until the truck rested on the ground again… . I pushed with all my might, but the lug nuts would not loosen. Finally I stood on the lug wrench and tried to jump a little on it to create more force. Joy! It worked… .

  “I started the engine and continued on.”

  But “it was late.”

  When she arrived at the work site, “I could see DA but he didn’t acknowledge my presence.” She set out the lunch she had brought and “then I waited.” The crew finished branding and came over to eat.

  “‘You’re late,’ said DA. ‘I know,’ I said. ‘I had a flat tire … and had to change it.’ ‘You should have started earlier,’ said DA. ‘Sorry, DA, I didn’t expect a flat.’ … I had expected a word of praise for changing the tire. But, to the contrary, I realized that only one thing was expected: an on-time lunch.”

  Justice O’Connor says that she learned the value of no excuses from the incident. She must have quickly figured out that no excuses applied even when the incident was actually excusable. No matter how unfair, she would be better off not to directly defy the male authority figures in her life with demands for just treatment. As an only child for eight years and treated like a son, she had also internalized a sense of entitlement normally associated with straight white men. For the rest of her life she would combine her confidence in her own equal value with a unique ability to absorb a high level of injustice without complaint.

  Within a year of the flat tire incident, Sandra left the ranch for Stanford. Sandra Day cut quite a swathe when she appeared in 1946 at the ripe age of sixteen. One of her dorm mates tells the story of how the girl from a remote Arizona ranch by way of an obscure El Paso private high school quickly rose to the top of the social order. “She had the most gorgeous clothes.” And, “after the first school dance … she came back with this cute guy, Andy, a returning vet, who had a red convertible. We were blown away.”

  The Lazy B must have been a powerful experience. Even though after she turned six she lived on the ranch full time for only one year, all these years later, Justice O’Connor still calls herself a
“cowgirl.”

  BROOKLYN BORN AND BRED

  Until she went away to college in 1950, Ruth Bader lived on the first two floors of 1584 East Ninth Street, in Brooklyn. It was a pretty, rectangular house. But it was a modest home. Ginsburg’s father, Nathan, had come from Russia and followed the classic Jewish immigrant path of going into the garment business, first as a furrier and then as a haberdasher. He never achieved much material success. When Ruth was two, her older sister Marilyn died of meningitis, leaving her an only child.

  It’s a short block and a half from 1584 East Ninth Street to P.S. 238, on East Eighth, just across Avenue P. Seven years after P.S. 238 opened in 1930, tiny five-year-old Ruth Bader approached the high yellow brick building, pushed open the heavy doors, and walked across a terrazzo foyer to a big classroom with a hardwood parquet floor and high windows. There were a thousand children in this intimidating, enormous school, grades K–8, and classes often had thirty students in them.

  Before she could read on her own, Ruth would sit in her mother’s lap while Celia Bader read to her. Her mother, who had been raised Orthodox, taught her more about the tradition of justice than the more rigid rules of the Jewish faith. When Ruth was older, she and her mother had a ritual of weekly outings, Ruth to the children’s section of the library, which was above a Chinese restaurant, and her mother to get her hair “done.”