Sisters in Law

by Linda Hirshman

  A few months after Jane was born, the Ginsburgs returned to Harvard Law School, Marty to resume his second year and Ruth as a lowly 1L. Unlike the upstart western Stanford University, Harvard had its gender hierarchy firmly in place. The only ladies’ room at Harvard was in the basement of one of the two classroom buildings.

  Erwin Griswold gave a dinner party to find out how the women justified taking a place a man would otherwise have had. Following a well-established tradition, each of the women students was escorted by a male faculty member. Ginsburg’s date was the constitutional law scholar Herbert Wechsler, who, she thought, “looked more like God than any man I ever saw.” It was an ironic pairing. When he squired the young lady law student to the dean’s dinner, Harvard’s godlike Wechsler was about to become the point man in the scholarly resistance to the Supreme Court’s 1954 desegregation decision. His rabid criticism of that case made him the father of harmfully retrograde attacks on every subsequent move to equality: extending the Fourteenth Amendment to women, abortion rights, gay marriage. Unknown to her, Ruth Bader Ginsburg’s life work would have been a lot easier if her dinner companion had choked on his hors d’oeuvres. In due course, Griswold called on Ginsburg to justify her presence in the law school. To her lifelong unending astonishment, the future feminist icon answered the dean, “it’s important for wives to understand their husband’s work.” Harvard concluded its hostile treatment when, a couple of years later, Ruth Ginsburg, who had predictably gotten good enough grades for law review, asked Harvard Law School to grant her a degree if she finished her third year satisfactorily at Columbia. She wanted to keep her family together while Marty started practicing law in New York. They said no.

  Years later, the law school announced that students in “significant relationships” could carry their Harvard degree after transfer. Marty, ever the advocate for his talented wife, immediately shot off a letter to the school newspaper. “In 1958,” Marty wrote, “the administration’s response was uncomplicated. Ruth was not asked if she was ‘seriously involved’ with spouse or child or both. No one inquired as to the likelihood of divorce on the one hand, or marital stability and even additional children on the other. No one speculated as to the quality of third year legal education at Columbia. It was all irrelevant. To bestow the crowning accolade of a Harvard degree, Harvard required the third year be spent at Harvard. Career blighted at an early age, Ruth transferred her affections to Columbia and satisfactorily completed the third year. After reading that transfer by reason of marriage now is viewed more kindly in Cambridge, I asked Ruth if she planned to trade in her Columbia degree for a Harvard degree. She just smiled.”

  When they published the letter, the editors of the 1977 Law Record added a note to tell their readers that the “Ruth” in question was at the time a professor at Columbia and head of the ACLU Women’s Rights Project. Think, they speculated, of what she might have accomplished with a Harvard degree. In Ginsburg’s files, the article appears with an annotation in her writing: “or had been a male.” Harvard’s policy fell hardest on its female students, usually the ones who left their career path to follow a male mate. She never missed the real lesson. And she always thought she was entitled to anything available to any other human of any gender.

  GRACE UNDER FIRE

  Ruth had more than the usual reasons to stick close to Marty in 1958. The year before, Martin Ginsburg, twenty-four years old and in his third year of law school, had been diagnosed with testicular cancer, metastasized into the lymph nodes. At that time, about 90 percent of testicular cancer patients died of the disease. Looking back, Ruth Bader Ginsburg does not even allow herself the luxury of the 10 percent: “At the time, there were no known survivors,” she says flatly.

  As Martin Ginsburg underwent two surgeries, “the second massive,” and eight weeks of radiation—the only treatments at the time—his wife continued caring for him, their young daughter, and attending her own law school classes. And working on the law review.

  “That’s one of the reasons I have such fond memories of law school,” Ginsburg says. “Our classmates rallied around us and kept us going. We got some good person in each [third-year] class to put a carbon paper in their notes and give me a set of notes.” Incredibly, Marty graduated with his class. At some point the story morphed into a tale of Ruth attending both Martin’s classes and hers, as well as working on the law review, where she was the only woman. The actual version is heroic enough as is.

  A third surgery, two years later, showed no further evidence of cancer. “We survived that year,” Ruth Bader Ginsburg says, and learned that “nothing could happen that we couldn’t cope with.” Everyone who saw them together over the half century of their marriage reports the intensity of their attachment.

  But even after Marty finished his cancer treatments, the doctors said there would be no more children, and they were not “out of the woods” until the traditional five years had passed. Although Ruth Bader Ginsburg gave a million speeches after she came to prominence in the early ’70s, she didn’t talk much about her husband’s illness. When she mentioned him, it was mostly about how he did the cooking. In 2010 she finally owned up to what drives many women to cling to their work: “[F]rankly we didn’t know how long Marty was going to live, and I might end up being the sole supporter of Jane.” Of course, Ginsburg’s story has a happier ending: “By the time we were out of the danger zone and it was past the five-year mark of his surgery, I was so hooked on my job that I would not give it up.” Ginsburg has never said why it took her a half century to divulge that her concern over sheer economic survival partially fueled her brilliant career. Like the harsh emotional landscape of O’Connor’s western childhood, Ginsburg’s fear of impoverishment would not have fit the sunny narrative they each constructed as they climbed the ranks.

  WORKING TO LIVE AND LIVING TO WORK

  Like Ruth answering the insulting questioning at the dean’s dinner, young Sandra Day showed no sign of indignation at her treatment by the law firms. She did not try to change the society to fit her idea of just treatment in 1953. Like oppressed minorities for generations before, Sandra found an employment opportunity working for the government. She heard that the deputy attorney for San Mateo County had once hired a woman, so she applied to him. As O’Connor later recalled, she was first told that the office had no budget to hire additional attorneys. Sandra agreed to work for free until funds became available. When she was told there was no office for her, she said, “I got along with your secretary pretty well; maybe she’ll let me put my desk with hers.” (In a graphic demonstration of women’s lesser prospects, while she was sitting with the secretary, her classmate William Rehnquist, maybe a place or two ahead of her in class rank, went from Stanford to clerk for Justice Robert Jackson on the Supreme Court.)

  O’Connor eventually managed to earn a salary from the county attorney, and when she left to accompany her new husband, John, to Europe, where he was serving with the army’s lawyer corps, she found her second professional opportunity as a government lawyer, this time with the Army Quartermaster Corps. Despite O’Connor’s plea that she had to work because the young couple liked to eat, money could not have been that tight. After John got out of the army, the couple rented an “adorable” cottage in Salzburg with old Austrian carvings of hearts and birds. They skied every day until the last flake of snow disappeared from the mountains. Then, having “run out of money,” they reluctantly came home, establishing their first household in the burgeoning sun belt city of Phoenix, Arizona. John O’Connor quickly got a job at Fennemore, Craig, von Ammon, McClennen & Udall.

  The community was made for them. The wife of one of their army pals wrote to her brother John Driggs, already a pillar of the community and later the mayor of Phoenix, to tell him to take care of their friends the O’Connors. William Rehnquist was already in town. He worked at the law firm of Denison Kitchel, the Harvard grad and constitutional law expert who would run Barry Goldwater’s presidential campaign.

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bsp; Phoenix grew seven times in population in the two decades before John and Sandra arrived, attracting soldiers who had learned to love the sunny climate during their war years, stationed at the various Arizona air force bases, and midwesterners fleeing the frozen cities of the snow belt. Many of the newcomers were Republicans. O’Connor’s 1957 Arizona was a perfect microcosm of what would soon happen to politics in America. The Democratic Party was complacent, old, tired, and corrupt. The conservative revival generated a right-to-work law that made union membership optional, which then disemboweled the unions. Then the newcomers started a network of Young Republican clubs and presented themselves as the party of modernization. With the purchase of the Arizona Republic and the Phoenix Gazette by the conservative publisher Eugene C. Pulliam, the Republicans effectively took over the state media. In the next election, heavily assisted by the Pulliam papers, a Republican, Howard Pyle, won the governorship. His campaign manager was a young Barry Goldwater. The O’Connors fit right in. John joined the Rotary and the up-and-coming Young Republicans.

  Typical of a western community, the reborn Republican Party rested on a robust network of volunteers. When she saw that conventional career opportunities were closed to her, the astute young Sandra O’Connor opened her own law office. A few years later, when the babysitter for her two young sons quit, O’Connor left her practice to stay home, but threw herself into Republican campaigns, becoming a precinct committeeman and eventually county vice chairman. She continued a lifelong practice of being at once a man’s man and a girl’s girl, joining at the same time the tony all-female Junior League. The Phoenix Junior League did major community service, and O’Connor quickly rose to become president of this powerful voluntary organization.

  Her version of her time at home does reflect that life away from the workplace generated a certain unused capacity for her legendary energies. One year of her stint as a stay-at-home mom, she decided to cook something different every single night for 365 nights. In 1963, the O’Connors and the Driggses gave a party for two hundred people to inaugurate Legend City, the mini Disneyland that some Phoenix developer had decided was just what the growing city needed. The gala, scheduled for the night before the theme park opened, involved a chicken dinner, a pie bar, and every amusement, up to and including the ASU Marching Band. Elaborate private entertainments were an O’Connor hallmark.

  In contrast to the sex-segregated law firms in Phoenix, by 1958, the summer between Ginsburg’s second and third years in law school, the supposedly liberal New York law firm of Paul, Weiss, Rifkind, Wharton & Garrison had steeled itself to endure a woman hire. Since, as Ginsburg later recalled, they just wanted to check the woman box, her interviewer, the partner Lloyd Garrison, did not actually pay much attention to her in the interview. Paul, Weiss hired her as a summer associate, but, despite her having the highest grades in the entire third-year class at law school, it was just a summer fling. When she got out, Paul, Weiss did not offer her a permanent job.

  Her teachers Professor (later Dean) Albert Sachs of Harvard and Columbia’s famed constitutional law scholar Gerald Gunther thought their brilliant former student should aim higher than Paul, Weiss, anyway. They recommended her for a Supreme Court clerkship with their closest connection, Justice Felix Frankfurter. Frankfurter quickly answered. “I’m not hiring a woman.”

  Frankfurter was hardly alone. The legendary federal appeals court judge Learned Hand also turned Gunther down, supposedly because he feared a woman would inhibit his salty style of speech. None of the other Supreme Court justices, including that liberal avatar William Brennan, would hire a woman. In 1973 Brennan would author the first opinion to suggest treating sex discrimination as harshly as race, but in 1959, Ginsburg could only find a clerkship with Edmund Palmieri, a judge on the lowest rung of the federal court system, the district court. By chance, Palmieri chauffeured his colleague from the Court of Appeals, Learned Hand, home from the federal courthouse they shared, rides filled with talk in Hand’s usual expressive style. One night, on the way home, the young law clerk in the backseat mustered the temerity to ask Hand why, since he had rejected her application to be his clerk on linguistic grounds, he felt free to swear as much as he liked in the car with her. “Young lady,” he answered, speaking to the windshield, “I’m not looking at you.”

  “It was,” she recalled decades later, “as if I wasn’t there.”

  Buoyed by Palmieri’s robust support in 1961, Ginsburg received several offers from law firms but decided instead to stay in academic life for a while. She signed on with a project at Columbia that was studying the procedures of foreign court systems. Professor Hans Smit, her mentor and sponsor on the project, was notorious for running “ladies day” in his class, calling only on his handful of female students one day and ignoring them the rest of the year. There is no record of her ever saying a word about it.

  In 1961, leaving Jane with her father for several weeks, Ginsburg took off to study court procedure in Sweden. She landed in the middle of the Swedish feminist revolution. It started with a clarion call from a woman journalist, Eva Moberg, much in the same way that The Feminine Mystique set a fire under the woman’s movement in America. Unlike Friedan’s work, however, Moberg’s article, “The Conditional Emancipation of Women,” made a more radical argument—that women could not be emancipated simply by entering men’s spheres; instead, men must also enter the women’s sphere. Or, as Moberg put it, both would be “people.” Moberg’s approach soon became the conventional wisdom in Swedish thinking, public policy, and law. Sweden made parental leave available to men, began to plan its public transportation and zoning to make it easier for both parents to work outside the home, and generally attacked sex-role stereotyping. In 1961, Sweden was the future, and Ginsburg was there to see it work.

  By 1970, Prime Minister Olof Palme was lecturing Americans in “The Emancipation of Man.” “Men,” he said, “should have a larger share in the various aspects of family life, for example, better contact with the children. The women should become economically more independent, get to know fellow-workers and to have contacts with environments outside the home. The greatest gain of increased equality between the sexes would be, of course, that nobody should be forced into a predetermined role on account of sex, but should be given better possibilities to develop his or her personal talents.”

  Despite her exposure to the Swedish experience at the beginning of the ’60s, Ginsburg spent most of the rest of that tumultuous decade minding her own business, teaching civil procedure at Rutgers Law School. In keeping with her low profile, when she became pregnant again, she made no demands on her employer; she simply hid her second pregnancy with her mother-in-law’s larger clothes, lest she be penalized again for reproducing on the job. Being pregnant at all was something of a miracle for the Ginsburgs, in light of the doctors’ warnings that Marty’s treatment for cancer meant no more children. “James’s safe arrival in 1965 showed that they misjudged,” she crowed.

  Her first day of teaching in 1963, Ginsburg looked out from behind the podium at the former newspaperman Frank Askin, one of the many returning adult students Rutgers attracted in those ’60s days of self-realization. “She delivered an endless boring monologue,” Askin, now a professor at Rutgers himself, recalls. At the end of her first year, the students performed a skit about her at their annual faculty send-up. A student playing their introverted civil procedure teacher gave a monotonal lecture while being stripped of her clothing. “She’s completely oblivious to the whole thing,” Askin recalls, “until she’s down to a bra and panties.” Ginsburg’s abstracted affect did not make her a favorite among students hungry for entertainment—or colleagues looking for a little academic bonhomie. Marty Ginsburg—bluff, hospitable, hilarious, athletic—quickly became the standin for his unforthcoming spouse.

  Sandra O’Connor apparently wasn’t paying all that much attention to the feminine mystique either. She thought practicing law was a lot easier than running the Junior League. No need to h
ang out a shingle this time. The Republican state attorney general Bob Pickrell was hiring assistants, and, as the future justice forthrightly admitted, “since I had been active in Republican activities, that no doubt helped.” She set herself up in the little office she was assigned as an assistant attorney general, hanging on the impersonal walls pictures her children had drawn.

  Although everyone realized she was the first woman assistant in the office, ever, it posed no problem. Her new colleague Paul Rosenblatt thought his female coworker was “a pleasure. First of all she was very attractive! And then she was so pleasant. And we had a great bunch of people in the office and we really needed the help, we were so busy.” The newcomer lost no time in exercising her traditional social skills in the new work environment either, inviting her helpful colleague Paul to dinner, which she hosted with her usual fabulous hospitality and delicious cooking.

  In 1969 the state senator representing O’Connor’s aptly named Paradise Valley neighborhood left the Arizona Senate to work for the Nixon administration, and O’Connor decided that she “would try to obtain appointment to that position” by the county board of supervisors. She knew the Republicans through her party volunteer activities, so she went to them and, surprise, they appointed her to the vacant seat. Relentlessly sociable and bent on a public life, the transition to the legislature was natural for a woman who never seemed to recognize how uppity she was.

  THE GREAT AWAKENING

  Even though O’Connor and Ginsburg were leading relatively conventional lives, the ’60s were happening. In 1963, Betty Friedan published The Feminine Mystique. Congress passed the Civil Rights Act, forbidding sex-based discrimination in employment. Casey Hayden and Mary King started circulating “Sex and Caste: A Kind of Memo” among the Students for a Democratic Society. Betty Friedan and others called for a new organization, the National Organization for Women. The new movement revived the old call for an amendment to the Constitution, the Equal Rights Amendment, protecting women, just as the Civil War amendments protected black Americans (Equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex). The Senate began hearings on proposed legislation.