When the justices met to discuss Stephen Wiesenfeld’s case, Brennan was ready with Berzon’s family-centered history of the Social Security survivors’ law. “Goal of statute is to provide for children,” he argued at the justices’ conference. “This accords with statutory intent.” Brennan attracted the other three justices from before Nixon started appointing—Marshall, White, and Stewart—but it was Lewis Powell, Penny Clark’s justice, who provided the crucial fifth vote at the conference. Social Security would no longer discriminate between widows and widowers based on their sex.
Brennan, being the senior justice in the majority, assigned the opinion to himself. Again, as in Frontiero, his draft opinion went further than the votes at conference would have suggested was allowed. Exactly as Ginsburg had envisioned five years before, he used the invalidation of a minor discrimination in law not just for Baby Jason Wiesenfeld, but to strike a blow at sex-role stereotypes across society. “It is no less important for a child to be cared for by its sole surviving parent when that parent is male, rather than female,” Brennan wrote. “And a father, no less than a mother, has a constitutionally protected right to the companionship, care, custody, and management of the children he has sired and raised, [which] undeniably warrants deference and, absent a powerful countervailing interest, protection.” Brennan’s far-reaching opinion attracted the agreement of Justice Blackmun, who had initially voted against Wiesenfeld, so Brennan had his five votes and didn’t care when Powell surfaced with a quibble, which ultimately became a concurring opinion.
The quibble is revealing. Powell found the impermissible discrimination in Paula Wiesenfeld, the working mother’s inability to provide a survivor benefit for her husband. As Powell saw it, Paula therefore accumulated fewer Social Security benefits while working than a comparable male worker. But what Powell really wanted to say in writing a separate opinion from Brennan’s was that it was clear to him who should stay home with a baby. No using the law to attack sex-role stereotypes for Powell: “I attach less significance to the view emphasized by the Court that a purpose of the statute is to enable the surviving parent to remain at home to care for a child. In light of the long experience to the contrary, one may doubt that fathers generally will forgo work and remain at home to care for children to the same extent that mothers may make this choice.” Men should not stay home.
So appealing was the Wiesenfeld family that in the end even Justice Rehnquist cast one of his few votes for women, going along with striking down the discriminatory law because it hurt the “child of a contributing worker.” To the end of Rehnquist’s life, he occasionally asked Ginsburg about Jason Wiesenfeld, who would always be the “baby” to Rehnquist.
And so the all-male Supreme Court managed to reproduce the entire history of the feminist movement. Justice Brennan’s opinion for the five-man majority reflected the “activist” (and Ginsburg’s) position that men and women could work for wages or stay home with babies, without being tied in to a stereotypical sex role. But he knew he could never get a majority of his Court to say that any distinction was suspect, as he had come within one vote of doing in Frontiero, before the Court started retrenching. The argument that sex discrimination was as constitutionally illicit as race was over for the moment. Justice Powell advanced the Betty Friedan formal equality argument that if women work for wages, their wages should be the same as a man would make. Of course, he reminded his audience, women should also be culturally burdened with caring for the home. And Justice Rehnquist foreshadowed the postfeminist argument that children are the most important concern in any decision.
Ginsburg never got the Supreme Court to say that sex was like race. However, except for the hardest cases, war and sex, never again would the Supreme Court say that an American law could treat women differently from men simply because they were women. The cultural issues—male caregivers as “indolent,” babies as the most important job—would remain like little land mines ready to explode the movement once Ginsburg’s job of establishing formal legal equality was done. But culture was not Ginsburg’s task: she would change the law. Without the law telling people that women are different and destined for domestic life, the culture had the chance to change women’s roles. After that, as she wrote in one of her many speeches, housewifery should be “freely chosen, not thrust upon them ‘willy-nilly.’”
Ginsburg was not the only one who recognized the Term of the Woman. As the Court deliberated over Weinberger v. Wiesenfeld, she got a letter from her ERA opponent Philip Kurland, who edited a scholarly journal about the Supreme Court. Kurland would be delighted if Ginsburg would write about the “slew of sex discrimination cases” on this year’s docket. She responded with a warning that she could hardly be objective, since she was the lawyer in the main ones! As long as she had his attention, however, on another subject entirely, she felt obliged to warn him that he was in danger of missing out on the opportunity to have an extraordinary student in the “excellent quality course” he offered at the University of Chicago. Jane Ginsburg was having “difficulty getting permission to take [Kurland’s seminar] in the spring quarter,” fancy that. Two weeks later, Kurland wrote to tell Ruth that his class was studying the opinion in the Weinberger v. Wiesenfeld case, since one of the students, her daughter, was kind enough to share her copy. Somehow Jane got the necessary permission to take Professor Kurland’s course.
When Ginsburg agreed to comment on the several women’s cases for Kurland’s review, she had been worrying about the decision in Wiesenfeld’s case. “I’m hoping for four votes,” she told Stephen in a phone call. On March 19, 1975, Wiesenfeld’s phone rang again. It was Ruth at a pay phone at the side of the highway. The news had come over the radio that she had won their case. “What was the vote?” she asked anxiously. (He did not know either.) She soon learned it was unanimous. “She gave the best oral arguments we heard the entire term I clerked,” Penny Clark remembers, “extremely articulate, very self-possessed, not a hint of nervousness or uncertainty, she stated her case very clearly and made persuasive arguments. For all of the years from that time, whenever I heard of her, I have a mental picture of her in a red suit—that very petite person standing very straight at the podium and making this really high-quality argument. And it was huge because there weren’t very many woman mentors around, to pattern my conduct as a lawyer and an oral arguer on. So what it said to me as a young woman lawyer starting out is that there are women lawyers working at the height of their profession and I can do the same. It was inspiring!”
A few weeks later, the Ginsburgs had a party to celebrate the victory in the Wiesenfeld case. Forty or more student helpers, funders, and the Wiesenfelds, father and son, gathered at their huge apartment on the Upper East Side. Jason Wiesenfeld was three. The Ginsburgs’ young son James, then eight, was waiting for him with toys and presents. After the party, Ginsburg wrote to Wiesenfeld to tell him what a wonderful child Jason was and how proud he should be. And so the stay-at-home dad and the future Supreme Court justice began a lifelong correspondence. You’ll find a good babysitter, Ginsburg reassures Wiesenfeld in an early note. Sometimes it takes several tries to find the right person. He describes his job to her as “motherhood,” and then, catching himself as a “sexist” because he should have said “parenthood,” he confesses, “I feel as oppressed as any mother who stays home with a baby all day.” No “indolent” life for single dad Stephen Wiesenfeld.
The law, especially Social Security, was still riddled through with widows’ preferences way beyond the surviving-parent benefit at issue in Weinberger v. Wiesenfeld. The most expensive benefit was that widows who did not have Social Security benefits could collect their spouse’s benefits without proving they were dependent on the spouse. Widowers who did not have Social Security had to prove dependency on their dead wives. Since most men at the time worked and accumulated Social Security to the maximum allowed, they wouldn’t have qualified for spousal benefits anyway. The only exception was that male public employees, who hav
e their own pension plan separate from Social Security, could technically claim Social Security widowers’ benefits under the precedents Ginsburg had established. Sooner or later, Ginsburg was going to have to perform at the high court for a greedy widower who was getting, say, a teachers’ pension and was not dependent on his dead wife’s Social Security benefits, but who wanted to collect anyway. But for his sex, he would be eligible. In a trice after Weinberger v. Wiesenfeld, Leon Goldfarb, a public employee himself not eligible for Social Security, sued to collect a widower’s benefit from his wife’s contributions without proving he had depended on her. And he asked the ACLU for help.
Goldfarb had no minor children. He just wanted to be treated like a widow for Social Security purposes: Wiesenfeld without the “baby.” Ginsburg won it, but barely. The justices just hated the situation this small, clever woman had put them in, but five of them thought they were caught. Unless, as Justice Brennan opined at the conference, they wanted to overrule “Weinberger [v. Wiesenfeld] and Frontiero,” they had to give Goldfarb his windfall. “The Court has gone too far,” the newly appointed Justice John Paul Stevens thundered; he was “not content with the present state of the law, yet [felt] bound by cases already decided—[Weinberger v.] Wiesenfeld and Frontiero.” As the opinions circulated, Stevens voted for Ginsburg and then against and then again for her. Justice Stewart thought the distinctions in Social Security should have been left to the legislature but conceded that Ginsburg had driven the gender issue in the other direction. “If the slate were clean,” Powell grumbled, “I would certainly leave it to Congress … [but Weinberger v.] Wiesenfeld and Frontiero … certainly strongly support the decision [in Ginsburg’s favor].” The government estimated a decision for Goldfarb would cost hundreds of millions of dollars, which would all go to men who did not need the money. The justices went back and forth for months trying to figure out an escape hatch. But brick by brick, one favorable word in one opinion at a time, Ginsburg had changed the law’s presumptions about sex distinctions. In five short years, she had built a structure of women’s equality using appealing litigants as much as she could. It is the ultimate testament to her architecture that now even unlikely occupants like Leon Goldfarb were sheltered by her work.
8
Finale: Boys and Girls Together
GIRLS
If treating widowers the same as widowed mothers was hard for the Court, equal protection for college girls and boys should have been easy. The rising generation of young females was changing at warp speed. The same 1974 term as Weinberger v. Wiesenfeld and the jury cases, the Court had heard a case, Stanton v. Stanton, from a divorcee in Utah who was trying to undo a divorce agreement that cut off child support for her eighteen-year-old daughter. Utah law held that girls did not need support because they were all grown up (and ready to marry) at age eighteen. Utah boys needed support until twenty-one, presumably so they could go to college. Preparing Justice Powell to address the case of unequal child support, Penny Clark asked her justice to “Pardon my outrage. This kind of assumption about behavioral differences between men and women, and especially the assumption that women do not have to support themselves, is at the heart of economic discrimination against women.” In 1975, without any help from Ginsburg, who was not involved in the case, the Court held the Utah law unconstitutional. Only Justice Rehnquist disagreed.
As she was preparing the hard work of representing Goldfarb in the term after Stanton, Ginsburg got wind of another girl case coming up without her careful stewardship. Girls in Oklahoma were allowed to drink 3.2% beer at eighteen, while guys had to wait until they were twenty-one. The Hoot and Holler drive-through supermarket sued. Craig v. Boren, as the near-beer case came to be called, should have been easy, too. The kinds of protective justifications for sex discrimination that dogged the widows’ cases were not at issue when young females were involved. Ginsburg thought the law was “ridiculous.” Justice Powell’s clerk Christina Whitman thought the case was “silly.” But the case turned out to be much headier than the 3.2% subject matter predicted, because this time the state had a defense to justify discrimination: boys drive drunk a lot more than girls do. And technically the law discriminated against boys, who were hardly a victim class. How exactly did a law that treated young females as sober citizens harm them anyway? The local federal court upheld the Oklahoma law, and Ginsburg asked if she could help the beer drinkers’ lawyer.
Ginsburg went a little easier on Craig’s Oklahoma lawyer, Fred Gilbert, than on prior locals. She offered to take the friend of the Court role if he didn’t want her to write his brief for him and disclaimed any intent to elbow him out of the fun of oral argument at the high court. The two civil rights lawyers engaged in a long-distance politeness contest, in which he hid behind the difficulty of brief writing at a distance and she conceded his point while continuing to try to write his brief from a distance. By the time they got to the third round of briefs, she was engaged in such tactics as sending him “the idea of an appropriate reply.” She actually arranged for oral argument in Craig v. Boren to take place before oral argument in her case, Califano v. Goldfarb, which was, fortuitously, scheduled for the same day, October 5, 1976. He did a horrible job. Since she did not argue the Oklahoma case, the justices simply waited until Ginsburg stood up to argue her own case to ask her the questions they had left from the one before. No matter. Under her tutelage, Gilbert focused his efforts on getting the Court to recognize that it had in fact established a higher standard for laws that discriminated on the grounds of sex—maybe not as high as the barrier for laws based on race, but not where Ginsburg started in 1970 either.
And a palpably more searching review of sex-discrimination laws is exactly what she got from the “silly” near-beer case. The very unpersuasive statistical evidence the state of Oklahoma could muster about road safety failed to convince the Court that such an antiquated and “silly” law should make bad constitutional doctrine in the area of sex discrimination. Brennan, the senior liberal, had at least seven votes—everyone but the conservative Rehnquist and Chief Justice Warren Burger—to strike it down. (Burger, newly converted to opposing sex equality, and Rehnquist continued to inveigh against creating any special standard for sex discrimination, proposing to roll back the clock to where Ginsburg stepped in, Reed v. Reed in 1970.) Brennan again assigned the opinion to himself.
And so, although he never got five votes to treat sex differences as harshly as race, Brennan continued to slowly raise the standard for laws that discriminate on grounds of sex. We know exactly how far Brennan pushed the envelope, because Powell’s clerk Tyler Baker was on it like a heat-seeking missile. In a draft, Brennan proposes to rule that “To withstand constitutional challenge, previous cases establish that classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives.” Wait a minute, Baker noted in a memo. Where did that “important” standard come from? That did not appear in any language they’d used before. But Brennan carried the day, simply by lining up Ruth Bader Ginsburg’s great cases (and the non-ACLU case of the Utah teenager). One by one, he pointed out, the Court had rejected justifications for distinguishing between the sexes. In Reed it rejected administrative convenience, in Frontiero it rejected overbroad generalizations, in Weinberger v. Wiesenfeld it protected working women, and finally, in protecting Stanton’s daughter in Utah, it rejected misconceptions about women’s place in the home. If you added up all the moves the Court had ruled out, you’d see it was almost impossible for a law that discriminated on sex to be upheld. Somewhere along the line, the tiny advocate with the precise voice had raised the standard for constitutional scrutiny of laws that separate male from female. Powell wrote a separate opinion, concurring to say he didn’t like it, but “candor compel[led] him to admit” that something like a legal change had been achieved.
Having set the hook in the now faraway case of Sally Reed, Ginsburg even won for the greedy widower in Goldfarb. Six mon
ths after Craig v. Boren, she learned that the Court had handed down its opinion in her favor. Goldfarb was 5–4, much closer than her other victories, but widowers were always a harder sell to the Nine Old Men. Woo hoo, wrote the advocate to her favorite client, Stephen Wiesenfeld, on March 2, 1977. “Won Goldfarb 5–4! … Without the precedent in your case, we would never have achieved this success.”
IF MY FRIENDS COULD SEE ME NOW
A week after the decision in Goldfarb, Ginsburg appeared in Time magazine as one of “Ten Teachers Who Shape the Future,” alongside such luminaries as Harvard’s legendary constitutional law guru Laurence Tribe, later of Bush v. Gore fame, and the man who suspended the death penalty, Anthony Amsterdam. She argued the cause of the Equal Rights Amendment in The New York Times. She testified before the United States Senate on the constitutionality of extending the ratification deadline for the ERA. She wrote (on the ERA) for Cosmo! Her daughter, Jane, having duly impressed Philip Kurland with her paper in his seminar at the U of C, made it to Harvard Law School, where she followed in her mother’s footsteps onto the all-powerful Harvard Law Review. Even James, who had been the subject of annoying phone calls from school all those years, found computers a compelling subject and spent a happy summer on a student exchange to France. She and Marty celebrated their twenty-fifth wedding anniversary, “a rare thing these days,” she thought.
Sisters in Law Page 13