By 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.
EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT THE CONSTITUTION BUT WERE AFRAID TO ASK
The Constitution, c. 1970: No Girls Allowed
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?
Even Liberal Lawyers Are Conservative
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.
WOMEN’S LIB AT THE LIBERTIES UNION
The American Civil Liberties Union invoked by Ginsburg in 1971 was almost as white and male as the Arizona legislature O’Connor sought to join. Of the ACLU National Board, which had the authority to dictate policy, 91 percent was male. The leaders of both staff and board were all white, male, Ivy League–educated lawyers: Executive Director Aryeh Neier (New York, Cornell J.D.), Legal Director Melvin Wulf (New York, Columbia J.D.), General Counsel Osmond Fraenkel (New York, Columbia J.D.), Marvin Karpatkin (New York, Yale J.D.), and Norman Dorsen (New York, Harvard J.D.).
Until just a few months before Wulf ran into Ginsburg at Rutgers, the ACLU was not even on record as supporting the Equal Rights Amendment. Board members with ties to organized labor had long opposed the equality provision because it threatened the labor laws that gave special protections to women. More regrettable was the attitude reflected in the Harvard Law Review article, that women’s rights simply weren’t worth more than a footnote. The Congress on Racial Equality’s Floyd McKissick,
who served on the ACLU Equality Committee, was forthright: CORE would work on black male power. Women could wait until “tomorrow.” As women began demanding legal equality more loudly in the early ’70s, a lot of liberal men decided that the civil liberty of equality, like the Civil War amendments, really should apply only to race. Dorothy Kenyon and Pauli Murray, the two intrepid women who had been trying to liberalize the ACLU, in some cases for decades, were starting to have “tantrums.”
Relief came from an unlikely source. In the wake of the feminist movement, the women from ACLU chapters out in the hinterlands formed a woman’s caucus. They threatened to quit, called the organization on its founding principles, and started asking for surveys of everybody’s salaries in the ACLU itself. Fortunately for them, the ACLU had made the fundamental error of holding biennial conferences with representatives from all the affiliates gathered together with the overwhelmingly white male national board. In June 1970 the women made their move, presenting the conference with a resolution to make women’s rights a priority. With one dissenting vote, the board did a 180-degree turn and endorsed the Equal Rights Amendment. And they elected Kentucky’s Suzy Post, a Berkeley grad and an old activist in the racial civil rights movement, to the board.
Abigail Adams once predicted that if the Framers left women out of the new republic they were founding, the “ladies” would “foment a rebellion.” Here it was.
While Ginsburg was trying to get Mel Wulf’s attention to let her in on Reed v. Reed in the fall of 1970, Suzy Post went to the next level. Why, she and her caucus asked in a fiery letter, were there not more women in a position to decide whatever issue came along? Why was the ACLU National Board 91 percent male? The women began to use dirty words like “quota.”
Just then, Ginsburg and the caucus women caught a break from two men at the top of the ACLU. The newly elected executive director, Aryeh Neier, adopted a strategy he had developed at his former post, the New York Civil Liberties Union, which involved identifying a problem and putting a civil liberties frame around it. One such problem was the society assigning groups to enclaves of inequality. Neier and the other NYCLUers included women high on the list of groups with a history of unequal treatment, now making a claim to equality as a matter of civil rights. At the ACLU, the volunteer general counsel Norman Dorsen, also a law professor, readily endorsed the concept of equality as a civil liberties issue and assigned a student to make the argument for the ERA. Under their leadership, the ACLU weighed in on the feminist revolution.
THE GRANDMOTHER OF ALL BRIEFS
When they didn’t hear back from Mel Wulf, the Ginsburgs rattled their network a little harder. When Norman Dorsen found a copy of the Ginsburgs’ brief for Charles Moritz in his mail, he didn’t just write to Ruth, he copied Wulf. Within days, Ruth’s phone rang. It was Wulf. Would his old camp buddy like to help him on the Reed v. Reed brief?
Ginsburg hung up and called her girls: Janice Goodman and Mary F. Kelly, the NYU students who had carried the word about the Women and the Law class across the river to Rutgers; Ann Freedman, one of the three student authors of the authoritative Yale Law Journal article on the merits of the Equal Rights Amendment, who was just finishing up at Yale; and Ginsburg’s own student Diana Rigelman, who had just graduated.
Okay, hotshots, now’s your chance. This could be our Brown. Rigelman, Freedman, Goodman, and Kelly had all been in college in the hottest years of the ’60s, yet, as the era drew to a close, these women had chosen law school rather than joining the SDS and mobilizing against the Vietnam War. Although Freedman, for example, was deeply involved with the New Haven Women’s Liberation Union, defending Black Panthers and protesting the Vietnam War, she was still attending Yale Law School. In their dreams they were Thurgood Marshall, circa 1954. The racial civil rights movement had given birth to the women’s movement. Now the racial legal rights movement would give rise to the women’s legal rights movement.
To the twenty-something law students, Ruth Bader Ginsburg, at thirty-eight, was an emissary from another generation. “She was not somebody who wanted to dismantle capitalism, the master’s house,” says Ann Freedman. “But she also wasn’t an apologist for the existing order. She saw the harm that sexist rules did in ordinary people’s lives. But in her generation, what attracted people to the law was the process. She was always a lawyer’s lawyer.” The movement lawyers were going to a Supreme Court that still had no women clerks. A lawyer’s lawyer was just what the movement needed.
The highest goal was obvious: get the court to see sex like race. Ginsburg’s team of young legal activists turned to the research that feminist law students had been gathering about Women and the Law for the courses they were creating out of whole cloth and to support the movement for an Equal Rights Amendment in Congress. James Madison’s wife, Dolley, they found, had written letters in the eighteenth century comparing women’s status to that of slaves. The man widely credited with doing the spadework to support the civil rights movement, the great sociologist of race Gunnar Myrdal, had compared slaves to women. In law school, they had all learned the heroic narrative of how progressive lawyers such as Louis Brandeis, later the first Jew on the Supreme Court, had broken the ban on protective labor legislation by drowning the court with social science data on the terrible conditions in factories. In Brown, Marshall used scientific studies about black children in segregated schools choosing white dolls over black toys when offered a selection to convince the Court that separate could never be equal. So it was no surprise that the students gave Ginsburg a draft brimming over with data about the changing place of women in society—their workforce participation, their rising levels of education, their long march to suffrage.
From her office at Rutgers Law School, Professor Ginsburg added the legal argument. The Court should treat sex distinctions like race, she argued—something people are born with and which should not determine their fates. If she won that argument, the entire structure of discriminatory American law would buckle. Like the society at large and the Harvard Law Review, much of the American legal system was built on the assumption that women were different from men, and usually not in a good way. When the Supreme Court reporter Nina Totenberg saw Ginsburg’s brief in Reed, she was stunned to see the comparison between sex and race. She’d always thought the Fourteenth Amendment was for African Americans. So she shut herself in the little phone booth the Court provided for reporters and called the professor at Rutgers. Only after she got an hour-long lecture on Professor Ginsburg’s view of the deep similarities between the two examples of exclusion did she understand completely what the feminist intellectual was after. Ginsburg, Totenberg says, may not like the press, but she has always known how to use it.
Ginsburg had another arrow in her quiver. The rising tide of opposition to the Equal Rights Amendment pending in the Senate reflected the culture’s ambivalence about equating sex equality with racial equality. Strictly speaking, Ginsburg did not need the Court to go that far. She could win just by getting the Supreme Court to say the law was so unjustified as to be irrational, the lowest standard that any legal distinction must meet. Any application of the Fourteenth Amendment to sex would be a move forward. She could try for the larger victory later.
Reed v. Reed, challenging the Idaho law that automatically chose men over women to administer dead people’s estates, should be easy to win under this low standard, Ginsburg hoped. It was a weird moment in Court history. By the time of the argument in Reed v. Reed, the Court was down from nine to seven. Chief Justice Earl Warren, who gave his name to the Court that made the legal civil rights revolution, and the liberal Abe Fortas both left the Court in 1969, and were replaced by Warren Burger and Harry Blackmun. Right before Reed v. Reed, Hugo Black and John Marshall Harlan left. President Nixon was considering their replacements.
Of the remaining seven, William O. Douglas, once the young Turk of the New Deal, could still be counted on to vote for an equality claim, as could William Brennan, the old Democratic pol and the
premier theorist of the Warren Court, and Thurgood Marshall, the iconic leader of the racial civil rights movement. Since the Court was down to seven, technically, Sally Reed needed only one more vote. Chief Justice Warren Burger and Associate Justice Harry Blackmun, the leading edge of the Republican backlash against the Warren Court, were not invariably conservative. Eisenhower’s Potter Stewart and JFK’s appointee Byron White were considered centrist. Somewhere in those four, the ACLU thought it could harvest at least one vote. By 1971, it was unlikely that four members of the Court would rule that women, by virtue of their sex, were presumptively unfit to do the simple task of administering their dead sons’ estates.
Looking at the Court to come, however, Ginsburg knew the justices and their likely successors would not find many other laws discriminating against women too silly and irrational to pass constitutional muster. Assumptions about the fundamental differences between the sexes were deep and broad. Nixon had taken office vowing to put an end to social experimentation under the guise of constitutional fiat. He was about to make two more appointments, for a record four appointments in one term. All the Women and the Law seminars in the world could not change the fact that given the Court’s present—and future—mind-set, most laws based on assumptions of sex differences would probably meet the low standard of mere rationality. Ginsburg had to find a way to jazz up the process of thinking about women’s equality far enough to produce real results for future cases but not so far as to scare Stewart and White, the crucial two centrist old horses on the Supreme Court at the time. She needed a middle road between mere rationality and equating sex with race.
Sisters in Law Page 6