The currents of change even reached the conservative heartland in Barry Goldwater’s Arizona. As O’Connor would later demonstrate on a larger stage, the tirelessly hardworking, superficially conventional new legislator provided the Republican leadership in the state legislature with an easy way to integrate women. “Many women around the nation were claiming more in terms of their desire to be treated equally and to have equal opportunities at work and I was the beneficiary, really, of a lot of that sentiment,” she forthrightly admits. The Republicans engaged in a bit of affirmative action and made her chair of the powerful State, County and Municipal Affairs Committee, unprecedented for a newbie state senator. In 1972, O’Connor ran for the second-highest post, majority leader, and became the first woman in America to sit in the leadership of her state’s lawmaking body. “Once I got in,” she proudly remembers, “I never had a further problem.”
O’Connor later said that a woman’s success comes easier if “both partners” understand “that the wife intends to pursue her separate career,” because “there is less likelihood of subsequent disappointment by the husband who experiences a greater share of responsibility for child care as a result.” But while Sandra O’Connor was leading the majority of the Arizona state senate, she came home every night to cook dinner for their three sons. O’Connor was famous for her Mexican dinners, at which, she says, legislators from both sides of the aisle resolved their differences and did the people’s business.
Across the nation, social change was coming at a somewhat faster pace. In 1967, the University of Chicago Law School tripled the number of women in its entering class from seven to twenty-one, and, in 1968, with the Vietnam War siphoning off male applicants, the law school admitted forty. That year, when a firm said it didn’t hire women, the ungrateful female Chicago students did not move a desk in with the secretaries at some obscure government job. They sued the law school for violating the Civil Rights Act by maintaining a discriminatory hiring hall.
Under pressure from women students, NYU’s law school, followed quickly by Yale, started a course in Women and the Law. Rutgers was inundated with second-career women coming back to law school under the influence of the feminist revolution. When Ginsburg—one of a handful of women law teachers—and the women students at Rutgers got wind of the development across the Hudson, they immediately planned a course of their own. “The students coopted her,” her colleague Frank Askin remembers. “There were only two women on the faculty and the other one wasn’t interested. She’s still teaching property somewhere.”
In typical Ginsburg fashion, her first act of feminist insurgency was to visit the library and gather all the materials there were on the subject of Women and the Law. It was an easy task, she noticed, because there was so little written. But as she examined the failed efforts to achieve equality, her “consciousness was awakened, and she began to wonder: ‘How have people been putting up with such arbitrary distinctions? How have I been putting up with them?’” The grudges she had been carrying just got a lot heavier.
Her warm recollections of the gender ferment during her Swedish sojourns make this maiden foray into feminism something less of a Road to Damascus story. Within a year after Olof Palme delivered his 1970 address in D.C., Professor Ruth Bader Ginsburg, then of the Rutgers law faculty, was citing his speech in letters to each of the members of the Senate and House Judiciary Committees in support of the Equal Rights Amendment. As the Swedes had been saying, Ginsburg avowed that men were as constrained by sex-role stereotyping as women were. “The traditional arrangement sometimes exacts a heavy toll from the dominant sex,” she wrote. And in a later speech at Duke: “A sharp line between the sexes, while generally functioning to confine women’s opportunities, occasionally yields a male victim.” When she took the time to organize her insights into a larger theory, what she called “Realizing the Equality Principle,” she cited Eva Moberg’s essay: “In it, she deplored the state of affairs existing in her country, as in this one, that women in the work force were nonetheless expected to maintain their traditional function inside the family.” Happily married to her master chef husband, this small, reserved woman brought her deep love for her spouse to any man who struggled to escape the double bind of gender roles. One of her favorite Supreme Court clerks won her attention when he applied, because he was a stay-at-home dad during law school.
She was, as her earliest feminist work reflects, committed to social change. But Ruth Bader Ginsburg was no Betty Friedan. Her strength lay in her razor-sharp mastery of the unromantic subjects of civil procedure and, as she immediately realized, constitutional doctrine. Even her rabble-rousing first speech after her awakening is a compendium of cases, past, present—and to come. She does not just rail against the gilded cage; she recites the facts of cases such as Goesaert v. Cleary, the 1948 Supreme Court decision that allowed women to be cut off from bartending in the interest of social morality. She predicts the impact of the cases feminism has thrown up, which are coming down the pipeline. As she began her feminist journey in the early Rutgers years, the monotonal lecturer turned her powerful analytic mind to the problem of using the equality language of the Constitution to destabilize the wall between men’s and women’s roles.
The Ruth Bader Ginsburg archive at the Library of Congress contains the papers from the crucial couple of years of the feminist heroine’s consciousness-raising. Despite her lifelong diffident, ladylike demeanor, the files are revealingly radical. They include all the essential elements of her brilliant career. From Moberg she got that inequality in the home would always keep women down, and things that looked like protection—such as alimony and shorter work hours—only made matters worse. “Few women,” she said in an early speech, “who have considered the effect of special protection in the past seek advantaged treatment today.” The revived feminist movement was pushing an Equal Rights Amendment, which would make all legal distinctions unlawful. Until they succeeded in passing a new constitutional Equal Rights Amendment, however, legal feminists were going to have to fight trench warfare to extract legal equality from the existing, race-based constitutional provisions.
Early on, Ginsburg obtained an essay by the feminist writer Alix Kates Shulman, “A Marriage Agreement,” in a short-lived publication with the über-’70s title Up from Under. Shulman’s “Marriage Agreement,” written with her then husband, was perhaps the most radical document of the explosive feminist revolution. “After I had been home with the children for six years,” it opens, “I began to attend meetings of the newly formed Women’s Liberation Movement in New York City.” Next thing you knew, Shulman and her spouse had signed a two-page single-spaced contract addressing eleven items of domestic labor—children’s mornings, transportation, help, nighttime, babysitting, sick care, weekends, and household cooking, shopping, cleaning, and laundry. He had the dishes on Tuesday, Thursday, and Sunday and she did them Monday, Wednesday, and Saturday. Friday was split “according to who did extra work during the week.”
Like the 1960s Swedish movement to pull men into the private sphere, the fact that Ginsburg kept a copy of “A Marriage Agreement”—of all the manifestos, articles, and volumes the ’70s feminist movement produced—reflects her lifelong and profound commitment to the most radical goals of feminism: private justice. Americans reacted to Shulman’s suggestion of domestic equality with near-fatal fury and devastating mockery. Two decades after “A Marriage Agreement” was published, the sociologist Arlie Hochschild wrote an entire book, The Second Shift, about how the feminist movement was derailed by the failure to embrace the principles in Shulman’s little essay. But Ginsburg never wavered from her principles. It might take years or even generations, but in Ginsburg’s ideal world, women were not going to have to bring home the bacon and fry it in the pan; as in the Ginsburg household, the jobs would be divided fairly.
She collected the sociologist Lenore Weitzman’s legendary article on how divorce impoverishes women and enriches men, yielding the second plank of Ginsburg
’s feminist platform—that the gilded cage of protective dependency is more cage than gilt. That realization fueled her relentless war on protective legislation for women, as “treating women as less than full persons within the meaning of the Constitution.” Protective labor legislation, such as maximum hours for women workers when there were no such “protections” for men, split the feminist labor activists from the so-called liberal feminists for a long time. There was serious infighting over the feminists’ proposed Equal Rights Amendment, which would make such laws unconstitutional. But Ginsburg never wavered in her belief that most laws and practices that supposedly protected women actually did more harm than good. As a lawyer, she never argued for special protection. The petite and soft-spoken radical proposed to expose all women to the icy winds of the market and individualist politics, starting with being able, for example, to tend their own bars. “All I ask of my brethren,” she constantly repeated, quoting the long-dead radical abolitionist and suffragist Sarah Grimké, “is that they take their feet off our necks.”
The government could hurt women in so many ways. When Ginsburg left the Rutgers library, she had learned that laws excluded women from countless human activities. Women could not or need not serve on juries, and, therefore, they would never be judged by juries of their peers. They could not tend bar in unhealthy saloons and so the would-be barkeeps could not earn their keep. They would be protected by marrying and so their parents’ duty of support for, say, college tuition, ended sooner for them than for their brothers.
She did not only haunt the library. One day that year, a handful of female law students met in some feminist’s walk-up apartment in Greenwich Village to discuss life and law. Small and retiring, Professor Ginsburg of Rutgers Law School had a story to tell the group. “When I was a first-year student at Harvard,” she began, “the dean had a dinner for all the women students… .” It was the first time she shared the story in a political setting and it would not be the last. Ginsburg set up the seminar on Women and the Law and began working on the first ever casebook on the subject.
But the classroom would not confine her. Within months of her life-altering trip to the Rutgers library, Ginsburg was standing before a meeting of the newborn National Association of Law Women at Duke University. “Technology,” she told the assembled women, “and society’s drastically curtailed child production goals,” make the division of labor between the sexes, assigning women to domestic labor, obsolete. “Feminism is an idea whose time has come.” The problem, she continued, was that “nothing is more ubiquitously pervasive than an idea whose time won’t go.” Even she could not figure out how to litigate to force married couples to abide by the marriage agreement. Most women weren’t lucky enough to be married to Martin Ginsburg.
Ruth Bader Ginsburg, of Harvard and Columbia law review pedigree, knew where to turn. What feminists could do, she told the audience, is make the government stop putting the weight of law behind the sex-role stereotypes that drove the injustice in the private realm. Legal sex-role stereotyping was worse than private behavior, she believed, because a “popular, but unproved assumption enshrined in law, deprives women of the opportunity to prove it false.” Everything about the revived women’s movement conspired to present Ginsburg with the first leg of her journey to fame and power. Arguing for the Equal Rights Amendment, which dated back to the 1920s, motivated the movement to focus on the web of laws that expressly kept women down. The flood of women into law schools pressured these institutions into regularizing the focus on Women and the Law into academic channels and credits. The same women provided a brilliant resource for the work of identifying legal issues and devising ways to challenge them.
Within months of starting the research for her seminar, Professor Ginsburg was writing to the members of the relevant congressional committees urging them to pass the suffrage-era Equal Rights Amendment. If passed, the ERA, forbidding the government to discriminate on grounds of sex, would have made it close to impossible for any law to distinguish between male and female. Like the laws against race discrimination, any law treating men and women differently would have to serve a compelling government interest. Practically, almost no law ever passes that test.
Ginsburg first framed her letters to Congress as coming from her and from the students in her seminar. Soon, she stepped out of her cocoon of collective action and began asserting the arguments simply as coming from herself. The letters from the lady professor triggered hilarious efforts to address her. They called her Professor, Mrs., and the then newly conceived “Ms.” One Rep. Charles Sandman addressed her as “M’s.” (Ginsburg famously refused to take the bait on how she should be addressed then or in her many appearances in the Supreme Court.) But as one of the few female law professors in the country, she was a natural advocate for the new legal order.
The task was great and the resources scant. Had the Equal Rights Amendment passed, Ginsburg would have taken a very different path from the long march she was now undertaking. While she waited and hoped, she knew she had to try to use the existing Constitution to free women from the sex-role stereotypes enshrined in law. From her perch on the Rutgers faculty, she started working on women’s rights cases with her local New Jersey ACLU.
The problem with her campaign for constitutional equality was that all the equality language in the Constitution was rooted in the American struggle with slavery and racial inequality. By the early ’70s, activists had succeeded in expanding the enforcement of equality beyond race—to protect aliens, and religious and ethnic minorities, for example. But by the time Ginsburg started her quest in 1970, any hope of getting women the same protections from discrimination as blacks ran right into the powerful backlash that had formed after the wave of social change we call the ’60s. Just as women took their place in the long march of American equality, the society—and the Court—were getting more conservative. It would be an exquisite task.
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The Lawsuit of Ruth’s Dreams
EVE’S RIB
No one was better suited for the exquisite task of radical politics than the diminutive, immaculate, soft-spoken thirty-seven-year-old denizen of the Upper East Side. By 1970, Brooklyn’s Kiki Bader was living in a luxurious coop apartment at Sixty-Ninth Street and Lexington Avenue, in a building designed by Emery Roth and Sons, the same firm that produced some of New York’s landmark apartments and hotels. Although she later dined out on the tale of how her son’s school always bothered her alone until she reminded them that James actually had “two parents,” most bourgeois New York parents would have killed to be annoyed by the elite Dalton School. Martin Ginsburg, well into his career as a renowned tax lawyer by then, was not only a good cook, he could bring the bacon home.
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.
CARD-CARRYING MEMBERS OF THE ACLU
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.
Sisters in Law Page 5