Sisters in Law

by Linda Hirshman

  On the last day of the term, the three took their seats, to deliver, one after another, the single opinion they had crafted together. The constitutional right to an abortion would not be overturned.

  Kennedy wrote a section of the joint opinion exalting the concept of liberty to include decisions involving the right to “define one’s own concept of existence … and of the mystery of human life.” A pregnant woman’s suffering “is too intimate and personal for the state to insist on childbirth,” he continued, teeing up the critical insight: out of “its own vision of the woman’s role.” No wonder Judge—later Justice—Ginsburg exulted over this opinion, otherwise a decidedly mixed bag for women. Getting the state out of the business of enforcing its vision of the woman’s “concept of existence” was the work of her life. For his part, Souter is widely credited with the powerful argument against overturning a settled precedent that had governed people’s sexual behavior and decisions for two decades in an act that would look like raw political power, not considered jurisprudence.

  The third, workmanlike section of the opinion, dealing with the actual provisions of the Pennsylvania law, is attributed to O’Connor. In reviewing that effort and all future efforts to make abortion harder for women, O’Connor’s concept of undue burden cemented the new order. In Planned Parenthood v. Casey and for the next twelve years, the Court has asked and answered her question: Did the state place an “undue burden” on a woman seeking to abort? Unlike Blackmun’s injunction of no interference for three months, and nothing but the mother’s health for the next three months, the undue-burden language provides no objective guidance for what might be allowed. For many years the Court was so closely divided that the question always wound up in the hands of the woman who was ultimately the crucial swing vote: What kinds of lives did she think women deserved? Of course, this phenomenon also meant the country would be asking the same question of whoever would succeed her when she retired.

  All the litigation after Casey, then, started with her section of the opinion in Casey. O’Connor began answering that question by backing away from what she had allowed under her undue-burden test repeatedly and as recently as only three years before. I know, she admitted, I said the state has an interest in the fetus from conception that might outweigh the mother’s interest, but I’m not saying that anymore: “we answer the question, left open in previous opinions discussing the undue burden formulation, whether a law designed to further the State’s interest in fetal life which imposes an undue burden on the woman’s decision before fetal viability could be constitutional. The answer is no.” She then sustained every burdensome provision of the Pennsylvania law, all of which applied throughout pregnancy, except making women tell their husbands. Women were entitled to lives that did not automatically end in death in childbirth if the abortion were denied, and women were entitled to lives that did not involve their asking their husbands about their proposed abortions. That’s it.

  In 1983, when O’Connor had first suggested the states’ campaigns against abortion rights be measured by whether they placed an “undue burden” on the woman’s choice, she was not yet famous for her jurisprudence of good common sense. Over the ensuing years, she imposed similar open-ended standards on every crucial civil rights matter—freedom of religion, affirmative action, employment discrimination. The vague and general language she used means that each decision resolved no more than the case at hand, making the Supreme Court the Common Sense court of last resort. When did a Christmas crèche amount to the establishment of religion? When it was “excessive.” When could a college prefer a black to a white applicant? Until such action was no longer “necessary.” What would constitute actionable proof of sex discrimination? When it is “sufficiently severe or pervasive.” Her decision in Casey follows suit.

  Common sense—the practical wisdom of the common man—by definition requiring neither theory nor expertise, is an effective tool for allowing unexamined intuitions and prejudices into decision making. The abortion cases, then, create an insight into the much-debated issue of Justice O’Connor’s lay intuition about women’s lives. Of all the hurdles the states thought up to discourage women in the years from her first abortion decision in 1983 to Casey, in 1992—making doctors tell them abortion was dangerous or that there were people wanting to adopt their offspring, prohibiting public hospitals from involvement, making women endure waiting periods, getting parental consent or a judge’s consent—O’Connor went along with them all. She dissented when the more liberal Court struck the state laws down in her early years, and she voted with the newly formed conservative majority when the Court eventually allowed the limitations on abortion. In all the cases before Casey, she had demanded only that a girl have an option to confide in a local judge instead of her parents. In Casey she gave her permission for the state to make providers tell women how dangerous abortion procedures could be to their health, make them wait twenty-four hours to digest the information, make young girls tell their parents in most cases.

  The only provision that felt burdensome to her and her two colleagues was spousal notification. It grossed O’Connor out to think of the government making a married woman tell her husband, whom she would not otherwise inform of her plans, that she was about to have an abortion. Critics concluded that O’Connor could relate, from her life as a married bourgeois woman, to how onerous such a burden would be. As to the rest—poor women having to take days off from work to travel to where abortions were available, often hundreds of miles from their homes, and then listen to a lecture unrelated to their needs or health care—no problem.

  Critics speculate that when she talked about common sense, she was unable to see outside the communally formed common sense of her community—white, middle class, married. This is a pretty serious criticism and one that an intuition-driven method like O’Connor’s naturally evokes. But O’Connor’s commonsense intuitions may be nothing more sinister than her telling the women to suck it up, travel to where abortions were offered, and listen to whatever they made you hear. Weaklings were not O’Connor’s strong suit. She was even surprised at the outpouring of love and support for her when she needed help during her treatments for breast cancer.

  Whatever the jurisprudence, the troika of Souter, Kennedy, and O’Connor at least ensured that women were granted some modicum of protection for their core decisions. And the center held. In 1992 a Democrat won the White House for the first time in sixteen years.

  Part IV

  Sisters in Law

  Richard W. Strauss, Collection of the Supreme Court of the United States

  The Supreme Court of the United States, 1993.

  14

  I’m Ruth, Not Sandra

  When the Senate Judiciary Committee convened to consider the nomination of Circuit Judge Ruth Bader Ginsburg for appointment to the Supreme Court, the committee had two new members: Senator Dianne Feinstein of California and, from Illinois, Senator Carol Moseley Braun. Before Feinstein had her turn, the other members who had spoken had boasted of their long history of considering Supreme Court nominees. But, Feinstein noted, “for myself and Senator Moseley Braun, this is our first. And it is no coincidence that, as our first, it is someone such as yourself,” she noted to the nominee. No coincidence indeed.

  The year that swept Bill Clinton into the presidency, 1992, was called the Year of the Woman because a record number of women took office at every level across the nation. The Supreme Court had played an unexpected part in the women’s year. When George H. W. Bush nominated Clarence Thomas to the Court in 1991, the Oklahoma law professor Anita Hill accused him of sexual harassment during the time they worked together. After widely televised hearings on the charges before the Senate Judiciary Committee, Thomas was confirmed, 52–48. Thomas’s confirmation generated a loud outcry from people who believed Hill and felt that she—and the issue of sexual harassment—had been badly mishandled by an all-male Judiciary Committee. The political world looked very different after November 1992 than it had
a few weeks before.

  When Clinton, a former constitutional law professor with a keen eye on his legacy, got his first Supreme Court opening, merely three months after he took office, he was determined to make history. He recognized the impact of naming the second woman to the Supreme Court. Few women were more responsible for the changed universe that had put Dianne Feinstein and Carol Moseley Braun in the United States Senate than Clinton’s nominee, Ruth Bader Ginsburg. It was a sweet moment.

  WINDING UP TO THE PITCH

  For someone about to nominate a brilliant, beautifully educated, experienced, and symbolic candidate, Clinton spent a long time considering. Partly this was not his fault. His first choice was the charming and charismatic Mario Cuomo, governor of New York. Likening Cuomo to another former governor turned justice, Earl Warren, Clinton thought Cuomo might persuade some members of the Republican-dominated bench into decisions more to his liking, rather than just being another liberal vote. The legendarily indecisive Cuomo kept the president dangling for months. At the White House, everyone seemed to have a different dream. Some dreamed of towering constitutional law scholars such as Harvard’s Larry Tribe. Others thought it would be brilliant to appoint someone without a law degree (which is allowed, but unprecedented). Clinton was very enamored of his interior secretary, the smart and articulate Bruce Babbitt. The key Republican Senate Judiciary Committee member Orrin Hatch wanted his pal Ted Kennedy’s former chief of staff, Stephen Breyer, then a judge on the First Circuit.

  As Clinton dithered, Judge Ginsburg’s posse was hard at work. Even her long-deceased mother, Celia Amster Bader, played a role. Bader’s niece Cousin Beth, née Amster, was married to a good friend of Senator Daniel Patrick Moynihan of New York, one Stephen Hess. He and Moynihan had served together in the Nixon White House and Hess was then at a powerful centrist think tank in D.C., the Brookings Institution. Beth’s husband sprang into action, reaching out to Senator Moynihan, who turned into Ruth’s best advocate. Although they had never met, Moynihan, the brainy ex-Harvard professor, knew Ginsburg, the brainy ex-Columbia professor, from her writings and her advocacy. In some precincts, that’s as good as long acquaintance, and so it was with Moynihan. It was her views on judicial respect for the legislature, he said in an interview, that attracted him to her. Of course, it didn’t hurt that she was born in Brooklyn.

  As the spring wore on, White House Counsel Bernard Nussbaum, who was a lead player in picking a nominee, received an unexpected phone call from one of his pals at NYU Law School. Would Nussbaum and his wife like to join him at a dinner for six at the posh Inn at Little Washington in the nearby Virginia countryside? The other couple would be … the caller’s friends, Marty and Ruth Ginsburg. “Of course I knew exactly what people were doing,” Nussbaum says. But the evening was delightful. “I really saw her close up. All these things have an impact. I was impressed on a personal basis.”

  Moynihan flew from Washington to New York City with the president on Air Force One, and he used the opportunity to lobby for his candidate. But Ginsburg was a bookish appeals court judge, just the kind of appointment Clinton said he did not want, a “footnote” type rather than a political type, who could sway the other justices his way. She was also sixty, and the White House staff was hoping for someone younger, who would outlast the youthful Clarence Thomas.

  Then opposition to Ginsburg surfaced, and from an unanticipated place: the left. Ginsburg’s entire approach was based on treating men and women as legally similar and equal. Since her feminist awakening in 1970, other players had arisen who challenged that strategy for helping women. Some said, for example, that women were different but still entitled to social initiatives that would empower them despite, or even because of, their differences.

  It should not have been totally surprising; revolutions have been consuming their young since the Bastille. Feminism, heavily anchored in colleges and universities, was particularly susceptible to idealistic theorizing. In fact, just as Ruth was leaving the ACLU for the comfortable precincts of the life-tenured judiciary in the early 1980s, the two new difference-based movements, each of which profoundly challenged her life’s work, gained real traction.

  Both took aim at Ginsburg’s organizing principle that men and women potentially aspire to the same avenues to human flourishing and so should be allowed the same options. Catharine MacKinnon, whose work played such an important role in the courts’ recognizing an action for sexual harassment, asserted that men dominated women in ways unique to women. Ginsburg’s equality argument was fueled by the denial that men and women could be assumed to be constitutively different, often called the “anti-stereotype principle.” MacKinnon rejected this argument. Even when there was no similarly situated man, she contended, women should not be required to overcome the legacy of centuries of oppression and resemble men in order to claim the goods of society. The policies and practices that made women’s lives worse—such as not supporting childbirth leave—were illegal. Starting in the late ’80s, she attacked Ginsburg’s decade of achievement of simple equality head-on. Most of what Ginsburg did, she argued, was to take away the few advantages women had—widow’s preferences, for example. And she represented male plaintiffs! Women were different, MacKinnon asserted. The question should not be Ginsburg’s question—are they treated differently from comparable men. The question is: Are they treated badly in ways that men, given their physiology, history, and social power, could or would never experience?

  Women are different, the Harvard psychologist Carol Gilligan agreed in the second challenge to Ginsburg’s work. They even think differently. When confronted with a moral problem like whether or not to have an abortion, women think about the effect of their actions on their web of relationships, not just on themselves. They reason, Gilligan concluded, not better or worse than men, but in a different voice. Although Gilligan—not a lawyer—never took on Ginsburg directly the way MacKinnon did, her arguments implied that women in decision-making positions might act quite differently from similarly situated men. If the different voice is still valuable, then Gilligan’s claims, like MacKinnon’s, are much more ambitious than Ginsburg’s simple plea not to stereotype women in advance as different. Ginsburg’s lifelong crusade—which came to be known as “equality feminism,” so radical in its time, did not last ten years when it was challenged by the call to recognize women’s differences without punishing women for them. “Difference feminism,” as the new strands of thought were named, was more demanding than Ginsburg’s theory. But it was also more dangerous. Whether the difference is in greater vulnerability or a divergent moral outlook, it is a slippery gradient from difference to discrimination.

  Although Ginsburg was on the bench when much of this new thinking surfaced, she wasn’t totally silenced politically. She was uncharacteristically open about her unhappiness with MacKinnon. After hearing MacKinnon speak on pornography at Columbia Law School in the late ’70s, Ginsburg, who remained loyal to conventional liberal free speech, confided to a friend, “That woman has bad karma.” In 1988 she even took MacKinnon on directly: “the ACLU Women’s Rights Project was not so bold as to essay articulation of a complete theoretical world in which men did not define women’s place.” Her litigation, rather, was intended to “unsettle women’s separate spheres.” She was more annoyed by MacKinnon’s ingratitude for her and the other pioneers’ efforts than by the substance of MacKinnon’s more ambitious claims to protection for women disadvantaged by history and culture. Next to MacKinnon’s place on the program, she noted, “arrogant.”

  She was more circumspect with the different-voice theory. When confronted with such claims, she admitted in May 1991, “I abstain or fudge … [finding] no reliable indicator of distinctly male or female thinking.” Coincidentally, by 1991, the sound of the different voice had even reached the ears of the less academically inclined Justice Sandra Day O’Connor. O’Connor was clearly nettled by the suggestion that her own decisions could be understood as an example of, as one benighted law prof
essor essayed, “Judging in a Different Voice.” O’Connor devoted a substantial portion of her 1991 Madison Lecture series at NYU to decrying these suggestions as a dangerous throwback to the era when women were judged as too delicate to participate in rough activities like practicing law and voting: “Ironically, the move to ask again the question whether women are different merely by virtue of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical resonances, however, more and more writers have suggested that women practice law differently than men. One author has even concluded that my opinions differ in a peculiarly feminine way from those of my colleagues.” A few months after O’Connor’s lecture, Circuit judge Ruth Bader Ginsburg received a copy of O’Connor’s remarks, faxed from the Supreme Court chambers.

  The following year, Judge Ginsburg also chose the vehicle of the Madison Lecture to dissent from a feminist article of faith, the abortion decision, Roe v. Wade. Ginsburg repeated and amplified the critique she had first articulated in 1984. She was obviously very concerned about the political friction generated by the abortion issue, especially compared with the relatively smooth debut of the equality revolution she had orchestrated in the ’70s. “A less encompassing Roe, one that merely struck down the extreme Texas law and went no further on that day,” she asserted, “might have served to reduce rather than to fuel controversy.” Abortion is not like school segregation, she asserts, because women are men’s wives, daughters, and sisters. Politics could work better where people are intermingled. Once women saw the injustice of their inequality, they could educate their oppressors, literally, at “home.” Maybe the men would not then have kept trying to oppress their wives, sisters, and daughters with criminal abortion laws. The racial minority, she argues, was, by contrast, hopelessly divided from the majority and could not bring about further change in any way but through the courts.