Jockeying for position in presenting Supreme Court cases is standard operating procedure in the elite section of the bar that regularly appears there. Cases can begin with local disputes in almost any town in the nation, where people like Sally Reed or Sharron Frontiero are grateful for a lawyer like Joseph Levin to pay attention to their grievances at all. At the other end of the food chain, there is a well-established group of lawyers centered in New York and D.C. who specialize in the prestigious work of presenting cases to the Supreme Court. Unlike the original client’s dedicated representatives, these high-powered law firms and organizations, such as the NAACP Legal Defense Fund or Ginsburg’s ACLU, are often most interested in seeing the constitutional law that governs the entire nation develop in a certain way. They frequently employ people who clerked for the justices and know the inside scoop at the Court. They are sometimes seriously obnoxious to the rubes they perceive to be in the way. The local lawyers, often with warm relationships with the actual parties, don’t want to turn their cases over to the fancy pants at the big shops. A case like Frontiero v. Richardson looks to a lawyer just starting out like his first—and perhaps only—shot at glory.
Ginsburg’s people tried everything to get Levin to back off. As would often be her practice, after lesser voices like Feigen Fasteau’s failed to work, Ginsburg wrote to Levin directly. Having a woman argue was important, she asserted. “I am not very good at self-advertisement,” she continued, “but believe you have some understanding of the knowledge of the women’s rights area I have developed over the past two years.” Levin responded almost by return mail. He didn’t think sex mattered for oral argument purposes. “I am normally the easiest guy in the world to get along with and find it very uncomfortable to engage in squabbling of any sort, petty or otherwise.”
The exchange of letters looms large in Ginsburg lore, because she is so rarely caught on the record boasting about her abilities. But her second letter to Levin a week later reveals the steel-trap mind behind the velvet modesty. “I suppose it is hard for either of us, at this stage, to see each other as we describe ourselves,” she opens disarmingly. Then Ginsburg puts in the shiv. “The ‘easiest guy in the world to get along with,’ in my book, would not renege on an understanding. On the other hand, my attempt to bring you back to where we stood on the oral argument from May-October probably does not seem to you to have been penned by someone who is, by nature, rather modest [emphasis added].” In two lines she tags him as doing something wrong regardless of how nice he is, while she describes herself as just trying to enforce a contract, however immodest that makes her. And all in a tone of sweet reason: “I suppose it is hard for either of us …”
Ginsburg’s mysterious appeal to fractious lefty lawyers normally worked in part because she took the position that “we all want to do the right thing here.” In this case, it didn’t work, and the two groups canceled their meeting to work on the brief. At the oral argument in January, Levin took the lion’s share of the argument time, arguing only that the air force scheme was so irrational it failed the modest standard of Reed v. Reed. Even if they won the battle, then, the larger war would not be advanced. Ginsburg was reduced to making her argument for the Court to scrutinize sex discrimination strictly, as they did to race discrimination, in a brief as a friend of the Court and to speak briefly after Levin finished.
Although the Court has unyieldingly resisted any possibility of video coverage for decades, oral arguments, including Ruth Bader Ginsburg’s debut in Frontiero v. Richardson, are recorded. For anyone who has heard her flat, halting presentations in interviews, the recording is a revelation. The familiar, Brooklyn-inflected voice was the same. But the Pinteresque pauses that once caused a job candidate to leave her office in the middle of his interview, thinking it had concluded, were nowhere to be heard. For ten solid minutes, she articulated the argument for comparing sex with race and imposing strict scrutiny on any distinctions between male and female. All the hesitation, as Nina Totenberg has observed, disappears “when Ruth starts to perform.”
The argument she made is by now familiar. Women have a long history of oppression, could not even vote for most of the nation’s history, and were, in 1972, almost unseen in corporate boardrooms or the halls of representative government. The justification for treating women differently—protecting them—excludes them from important arenas of civic and human life, such as from serving on juries and often from holding better jobs. Assuming they are dependent beings who belong in the home, as the air force scheme assumed, confines both sexes to stereotypes that limits their opportunities and imagination.
In a drumbeat of simple declarative sentences, she made raising the standard seem not just simple, but inevitable:
“Amicus [the ACLU],” she begins, “urges the Court to recognize in this case what it has in others, that it writes not only for this case and this day alone, but for this type of case… . To provide the guidance so badly needed and because recognition is long overdue, amicus urges the Court to declare sex a suspect criterion.
“This would not be quite the giant step appellee [the air force] suggests.”
Why not, she explains:
“Sex like race is a visible, immutable characteristic bearing no necessary relationship to ability. Sex like race has been made the basis for unjustified or at least unproved assumptions, concerning an individual’s potential to perform or to contribute to society.”
Her opponents say that race was the special concern of the Fourteenth Amendment. And it was. And again she asks the Court to consider not the what but the why:
“But why,” she then asks, “did the framers of the Fourteenth Amendment regard racial discrimination as odious? Because a person’s skin color bears no necessary relationship to ability.”
And then she drives in her point: “similarly as appellees concede, a person’s sex bears no necessary relationship to ability.”
The argument makes unavoidable a ruling that sex is as suspect as race. Had she succeeded, much of the rest of the drama of women and the Court would have been unnecessary. Uninterrupted by even a single question, her oral argument reveals graphically the woman who “treats everyone as if they were as smart as she is.” Although the argument has a simple structure, she does not dumb down her language. Women don’t make less money, they receive less “remuneration.” Distinctions are not just illegal, they are “odious.” Perhaps imperfectly aware of the inner life of the nine men before her, she ended her maiden voyage with a ringing invocation of the suffragist Sarah Grimké: We do not ask men for special treatment, she intoned, “All we ask is that they take their feet off our necks.”
She was brilliant. At their conference, seven justices voted to strike down the air force scheme. And she converted Justice Brennan to strict scrutiny, treating sex like race. (Actually, her argument that sex was like race persuaded Brennan’s clerk Geoffrey Stone, who left his justice with two drafts late one night, the narrow one applying Reed v. Reed and a broad opinion raising the standard for sex discrimination. When Stone got to work the next day he found Justice Brennan had come on board for the bold move.)
But Brennan had an uphill battle getting a majority. Although you wouldn’t know it from the unanimous decision in Reed v. Reed, the Court changed foundationally when the nation elected a Republican president in 1968. Although the seven justices from Reed v. Reed remained, Nixon had filled the two remaining vacancies. He added William Rehnquist, O’Connor’s old Stanford friend and the most conservative justice in decades, and a courtly Virginia lawyer from a corporate firm, the former ABA president Lewis Powell. The new justices were not what you would call feminists. Even the least conservative Nixon justice, Harry Blackmun, had already expressed disdain for the seriousness of legal feminism. “The ACLU,” he had written of Ginsburg’s legendary brief in Reed, had filed a “very lengthy brief” in this “simple little case.” “I hope we don’t get into a long and emotional discussion about women’s rights.” In fact, Ginsburg’s brief w
as, at sixty pages, long, but not unusually long. In some of the back and forth between the justices during the consideration of the follow-up case, Frontiero, Burger asked Powell to be harsher on Brennan’s liberal effort, describing himself as trying to “mute the outrage of Women’s Lib.” As Aryeh Neier had figured out at the founding of the Women’s Rights Project, men often thought women’s rights were frivolous. Even his serious brainiac Ruth Bader Ginsburg failed to persuade Harry Blackmun or Warren Burger of the seriousness of her cause.
So Brennan had his work cut out for him. He was sure of the support of his liberal colleagues William Douglas and Thurgood Marshall for giving Ginsburg her strict scrutiny. He had even captured the somewhat unpredictable fourth Democratic appointee, Byron White. Justices Warren Burger and William Rehnquist were never in play to raise sex discrimination to the level of race. Brennan then went to the “centrists” to try to get to five. Justice Harry Blackmun, who seemed to be waffling politically, seemed like a possibility for a while. But Blackmun was impatient with Ginsburg’s pitch, again calling her briefs overly long and giving her a churlish C-plus for her brilliant oral argument in Frontiero (“very precise female,” he noted in his habitual reviews of the various lawyers’ performances).
When Blackmun finally came out on the conservative side, Brennan turned his sights on the old Eisenhower centrist Potter Stewart. But at that moment Nixon’s latest appointee, Lewis Powell, just a year into his tenure, surfaced as Brennan’s adversary. In a memo to the Court, and ultimately in his concurring opinion, Powell argued that the Court should not elevate sex to race while ratification of the Equal Rights Amendment was pending in the various states.
Powell’s papers, which have become public since the decision in Frontiero, raise the question of whether his ERA argument is just pretext. His notes to self actually reveal that he, a very conventional Virginia gentleman, was unsympathetic to Frontiero from the beginning and might even have dissented altogether. “Close case,” he noted right out of the box. There are so few women in the military and the statistics indicate very few dependent husbands, he reasoned. The law requiring women to prove their spouses’ dependency “may well,” he thought, “be rational.” Certainly, he noted, “women” do not “constitute a suspect class.” Reed v. Reed did not say so, he reminds himself.
“Women are not fungible with men (thank god!)” he wrote to Brennan. He voted for Frontiero in the end, but he persuaded the Court that they ought not to raise the standard for sex discrimination. As long as Lewis Powell, the persuadable fifth vote in a heavily divided Court, held sway, the government would never have to produce a compelling reason why it treated women differently from men.
The story of the near miss at getting the standard of review changed in Frontiero illustrates perfectly what Ginsburg and the Women’s Rights Project were up against. The Supreme Court, just starting on its journey away from the legendary civil rights victories of the 1950s and ’60s to becoming one of the most conservative in history, was not going to treat women like black Americans. The Court decided the case for Sharron Frontiero—women in the armed forces would now get their automatic benefits—by a vote of 8–1, with only the conservative Rehnquist dissenting. Brennan wrote an opinion equating sex discrimination with race. But four of the eight justices in the majority joined Powell in writing separately from Brennan, leaving the liberal Brennan with a minority of but four votes. The decision in Frontiero looked like a victory, but it was more like a placeholder.
It would seem all the more surprising, then, when, a month after the argument in Frontiero, the Court, in an opinion by Justice Blackmun, struck down every one of the nation’s abortion laws.
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Intermission: Abortion
Justice Blackmun later called Roe v. Wade, the abortion decision, “a necessary first step in the emancipation of American women.” Maybe. But, in the form of Blackmun’s opinion in Roe v. Wade, the abortion decision looked more like an intermission in the drama of the feminist legal revolution than the next development. Although women were 100 percent of the people seeking abortions, Justice Blackmun spoke of the pregnant woman’s “right of privacy” and concluded that abortion, “a medical decision,” must also respect the “right of the physician.” As many feminist critics, including Ruth Bader Ginsburg, later noted, instead of addressing why imprisoning women in their pregnancies excluded them from equal social opportunity, the decision imprisoned them in their individual “privacy,” making the decision seem like an arbitrary act of will. While the country was in gender upheaval, and Ginsburg and her troops were challenging the court to undo legal presumptions about gender, the abortion decision managed to sidestep all that.
The separation of abortion from feminism is not all that surprising. The doctors who started the abortion reform movement in the 1940s were the furthest thing from feminists, radical or mainstream. One thing about doctors—they don’t like to see their patients die, especially when it’s not nature that’s killing them. It’s the law. Once abortion became safe—indeed, safer than childbirth—after World War II, doctors started noticing that almost half of maternal deaths were from botched illegal abortions. A privileged few women managed to secure hospital-committee-approved “therapeutic” procedures.
Women would try to abort, doctors knew. The only question was whether they died—or became infertile—from it. The most liberal specialists—the psychiatrists—began to talk about the issue. In 1955, Planned Parenthood held a secret conference on the subject for health professionals, and the conference produced an actual statement. Doctors needed more freedom to decide what their patients needed, the statement said. Coincidentally, in 1959 an essentially all-male group of ultra-establishment lawyers and law professors, the American Law Institute, began devising a Model Penal Code to reform all American criminal law. Responding to the doctors’ increasingly vocal concerns, the code proposed to modify the criminal prohibition of abortion by urging that it be performed in licensed hospitals in situations where doctors determined that it was required to save the life or preserve the physical or mental health of the pregnant woman. The ALI’s codes carry great weight among lawmakers, and reform-minded legislators in many states began adopting the liberal provisions of the new abortion protocol.
A year later, the pregnant Arizona TV star (Romper Room) Shari Finkbine found out the sleeping pills her husband brought her from England contained thalidomide and would likely cause her to give birth to a baby with deformed or missing arms or legs. Since abortion was criminal in Arizona and most of the United States, she went to Sweden. She also went public. Support for legal abortion soared. Even the Equal Rights Amendment foe and conservative icon Barry Goldwater and his wife, Peggy, were mainstays of Arizona Planned Parenthood.
There was no way this issue was going to stay in the hands of reformist male doctors and children’s TV stars after the rebirth of the feminist movement in 1963. As early as 1962, a California medical technician started the Society for Humane Abortion; a group around the Chicago civil rights activist Heather Booth founded Jane, the women’s collective that actually performed abortions; NOW had a Conference on Reproductive Rights; and NARAL, the organization to Repeal, not Reform, the laws was born. The women of the women’s movement did not want to beg their doctors for understanding or submit to powerful hospital committees to determine the state of their mental health. They saw the issue as a pure question of women’s liberty, and they thought the laws, including the reformed laws, should be repealed.
That abortion would, as Tocqueville said about all American conflicts, surface in the Supreme Court quickly became inevitable. Ultimately two cases arrived. Roe v. Wade, the case that came to stand for abortion rights, was put together by two green female University of Texas law grads to challenge the state’s nineteenth-century criminal prohibition. The companion case, Doe v. Bolton, was carefully crafted by the ACLU to challenge the limits on abortion that remained even after Georgia had liberalized its abortion law to the American L
aw Institute model. The Texas lawyer Sarah Weddington made her reputation on the case and went on to a long career advocating for women and other liberal causes, including the successful initiative to score a federal judgeship for Ruth Bader Ginsburg in 1980.
By 1971, when the case was heard, every imaginable interest group had weighed in. All the arguments in the evolving and diverse resistance to abortion laws—from the doctors’ interest in proper practice of medicine to the right to privacy to women’s unique burden in the childbearing arena—had been presented to the Court.
In voting 7–2 to strike down the laws against abortion, the refined old WASPy gentlemen of the United States Supreme Court, circa 1973—and their lukewarm Catholic brother William Brennan—embraced the conventional, doctor-centric analysis. The establishment was clearly on the side of the Court, and the society was completely fed up with dying women arriving at emergency rooms after botched illegal abortions. Neither Justice Blackmun nor his brethren, however, were prepared to concede that women were simply entitled to abortion as a means to an end in a flourishing life.
Ginsburg later shared her unhappiness with the abortion decision. Abortion was not the business of the Women’s Rights Project, but, from the sidelines, she developed a much more radical theory about abortion. To this equality advocate, abortion prohibitions stereotyped women as breeders and kept them from realizing their full potential in life. Hence, the laws violated the equality provisions of the Constitution.
Sisters in Law Page 10