Olson had no answer, because there was no answer. The boys-only rat-line world assumed that women were constitutively unfit for some avenues to citizenship. More important, as Justice Breyer’s devilishly clever question teased out, VMI had to persuade the Court that the world needed men like their specially trained male-bonded graduates to run things in the society. By 1996, the Court had created more than two decades of precedents rejecting these arguments. Even the military said it didn’t need men like the alumni of the VMI rat line. Under those past decisions, the odds were great that an assumption about women’s nature would be regarded as a product of a discriminatory past and could not be dressed up as helping women. Some boys’ need for a boys’ club would be treated as simply not socially meaningful enough to outweigh the damage to women from the discrimination.
Why had the case even gone so far? Because even after three decades of modern feminism, many Americans still believed that women were different. VMI also represented the belief that women were unsuited for some valuable parts of life. The conservative local federal judge believed it. And so did two of the three appeals court judges on the very conservative Fourth Circuit and a majority of the whole circuit, who voted not to hear it en banc. Everyone who thought about the case understood that an important cultural debate was going to be recast when the Supreme Court weighed in. Public faith in the Court as an institution was still very high, over 60 percent. That’s why the line for oral argument was around the block.
When the Court gathered at conference, the line to support old cultural beliefs was substantially shorter. Only the chief and Justice Scalia supported VMI. Six justices voted to compel the school to admit women. Justice Stevens, being the senior in the majority, would normally have had the right to assign the opinion. Since Chief Justice Rehnquist eventually switched his vote to join the majority in compelling VMI to integrate, Stevens thinks Rehnquist had the assigning honors. Regardless of which man it was, either Stevens or Rehnquist assigned it to O’Connor. And savvy, sympatique O’Connor turned it down. This should be Ruth’s, she said.
Ginsburg started the opinion-drafting process with six votes. She had some wiggle room, so she had a decision to make. Would she use this six-vote majority to try to get the Court to equate sex discrimination with race at last, fulfilling the work she began at the Women’s Rights Project of the ACLU, where equating sex with race had been her goal? Had she succeeded, any legal distinction between men and women would have been almost impossible to defend, just as official governmental discrimination against black people is.
Ginsburg would not take the risk. She feared losing Kennedy and O’Connor, the weak links among her six votes. At oral argument, O’Connor had snapped at the Justice Department lawyer for claiming the standard in sex-discrimination cases was still an open question (as Blackmun had said it was just a year before in the jury case, J.E.B.). Was the standard still on the table? “Not exactly,” O’Connor said. “The Court has decided a number of cases applying a sort of intermediate scrutiny.” A plurality opinion of four for strict scrutiny would be no better than Justice Brennan had achieved two decades before in Frontiero. Ginsburg wanted the broadest majority for women’s equality she could get, and O’Connor’s agreement on this landmark sex case was disproportionately important to her. And so she invoked the well-established standard that O’Connor described in her opinion in Hogan. The state lost because it failed to provide an “exceedingly persuasive justification” for the distinction between the sexes at VMI.
But Ginsburg was never one to waste an opportunity. She would use her big majority in the VMI case to “blur” the difference between the lower standard of review for sex discrimination she had had to accept all these years and the high standard the Court accorded to race. Cherry-picking the decades of decisions inching toward women’s legal equality since she started her work a generation before, she wove together the most favorable language from O’Connor’s Hogan opinion and Kennedy’s concurrence in J.E.B. and concluded that the Court was now engaged in “skeptical scrutiny of official actions denying rights or opportunities based on sex.”
And so it should be skeptical of VMI’s position, too, she affirms, given the sorry history of sex discrimination woven throughout the nation’s history. And in Virginia. Wielding Virginia’s long and public record of resistance to educational equality for women, the opinion dismisses out of hand VMI’s newfound interest in the virtues of single-sex education for all, as manifest in its litigation-driven support for the program at Mary Baldwin College. Although Ginsburg sweetens the demanding sound of skeptical scrutiny with a coquettish reference to “celebrate” the “inherent differences between the sexes,” the concession is just that—an empty, flirtatious smile. Almost no discriminatory scheme can escape the burden of history she lays upon it. Here, in the midst of the scary cultural revival of arguments for the natural moral uniqueness of women—for good or ill—the Supreme Court justice comes full circle to the work of the liberal philosopher John Stuart Mill, her earliest inspiration and the father of women’s equality. Maybe someday women should be treated differently from men as opposed to being treated the same, Mill said in his landmark essay “The Subjection of Women” a century before Ginsburg set out on her quest, but first we must try equality. “Experience cannot possibly have decided between two courses, so long as there has only been experience of one.”
Skeptical scrutiny raised the standard. Had it been scrupulously followed, Ginsburg’s refusal to allow women to be lumped together and then treated as a group should have doomed essentially all gender-based discrimination. VMI had defended itself with the argument that most women did not want anything remotely resembling what VMI offered. The Court rejected the argument out of hand: “the question is whether the commonwealth can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords.” If even one woman was ready, willing, and able to attend VMI, the policy of exclusion must fall. Ginsburg’s antistereotyping dogma was written into law.
Dissenting, Justice Scalia asserted that scrutiny of sex-based classifications now required a perfect fit. If even one woman was suited for the all-male undertaking, the line between the sexes would not hold. He accused his good friend and former D.C. Circuit colleague of enacting strict scrutiny for women without admitting it. Despite the traditional back and forth of opinion and dissent, Ginsburg’s opinion never challenges the accusation. And despite her comment at oral argument, O’Connor did not file a separate opinion and said not a word about preserving “a sort of intermediate scrutiny.”
The next year a handful of young women appeared on the VMI campus, hair cropped and sporting hilariously ill-fitting uniform skirts. When the time came, they scrambled up the muddy hill and made it to the top. Although there were real challenges at the beginning, there are females at VMI to this day.
BY VIRTUE OF THE POWER VESTED IN ME
Ginsburg liked being on the Supreme Court (she called it “the good job”).
Although she held her predecessor there in high esteem, she did not adopt her routine. Ginsburg had the temerity to eschew the morning aerobics classes. In typical Ginsburg fashion, she didn’t criticize O’Connor’s female ritual of early aerobics, she just said the class met too early. And she did not spend anything like the time and energy O’Connor did giving speeches in often obscure places, cheerleading for the American rule of law. It wasn’t easy being second to the lively westerner. Ginsburg constantly received requests for appearances or publications from places announcing that O’Connor had already been there or done that. Her secretaries speculated O’Connor had a secret twin sister covering some of the gigs.
But Ginsburg certainly enjoyed the travel that her job enabled her to do. She participated fully in the grand opportunities the justices had to teach and confer abroad, especially during the summers. Wherever they go they are treated like American royalty. Ginsburg’s files are full of references to trips to places with goo
d opera companies. In 1998, for instance, she went to the Salzburg seminar on a trip that started with a Mercedes waiting at the airport to take her and Marty to the Imperial Hotel in Vienna and then shuttle them to a private opera performance at the Schonbrun Palace. Good job indeed.
It wasn’t all palaces and Imperial Hotels. In 1998, she flew to Coral Gables, Florida, and used the authority vested in her to perform the wedding ceremony for Jason Wiesenfeld, her favorite client’s son, who had started the litigation so long ago. Unlike most royalty, when she noticed a $78 error in the tiny hotel bill, she immediately wrote to the bride’s father to alert him to the discrepancy. Three months later she was comforting the family as Jason came down with cancer in his twenties. Ginsburg reassured them that it would eventually pass and shared how she and Marty had gotten through the dark days of his disease themselves. Stephen has a beautiful handwritten card from Ginsburg’s chambers with her mother-in-law’s advice: “This too shall pass. And butterflies will follow.”
It was a happy time. Jason Wiesenfeld did recover. And Marty began cooking for the Court’s spouses’ dinners.
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The Importance of Being O’Connor and Ginsburg
In the years after VMI, the sisters in law heard almost twenty cases about women. Most involved relatively uncontroversial fine-tuning of the big decisions of sexual harassment and discrimination that had characterized the prior decade. The cases rarely divided the Court closely; most decisions claimed six or more votes for the majority position. It was clear that the Court was moving in the direction of increasing the protection for female plaintiffs in these two important areas of civil rights law.
SWINGING IN THE SCHOOL YARD
A short-lived and rare split appeared between the two female justices in 1998 when, in Gebser v. Lago Vista Independent School District, the Court confronted a new issue. Did the civil rights laws prohibit sexual harassment of students?
Students were sort of the stepchildren of legal feminism, a movement that began with Betty Friedan’s 1963 clarion call to women to get to work. The 1964 Civil Rights Act, which included the revolutionary word “sex” in its protections, was mostly about employment. Early in the game, however, Bernice (“Bunny”) Sandler, a humble lecturer at the University of Maryland, figured out that President Lyndon Johnson’s 1968 executive order prohibiting race—and sex—discrimination should apply to schools receiving federal money. The government started investigating Harvard for its almost entirely male faculty. Columbia Law School noticed that it had no women on board and hired the young Ruth Bader Ginsburg. One of the few female members of Congress, Rep. Edith Green, put Sandler on the staff of the committee updating the Civil Rights Act. Four years later, the protections from the executive order were written into federal law, in a provision called Title IX. Sandler became, as The New York Times had it, “the godmother of Title IX.” When Congress was considering Title IX, education lobbyists were so busy worrying about whether schools would have to use female football players they didn’t notice there was a sexual revolution in the making. Okay, maybe Harvard Law School would eventually have to hire a Ruth Bader Ginsburg type. But in 1972, when President Nixon signed Title IX, sexual harassment didn’t even have a name. Who ever dreamed that dreamy teachers couldn’t hit on their worshipful female students? A million academic novels would have to be rewritten.
But as Tocqueville says, sooner or later every social issue in American life winds up in the courts. In this case, it arose in a plot straight out of one of those academic novels. The teenage plaintiff, Alida Star Gebser, had been engaged in a long sexual relationship with her high school social studies teacher. Although other students had complained about the teacher’s inappropriate remarks and the like, Gebser and her teacher went to great lengths to conceal their behavior. When they were caught having sex in a parked car, the school threw the teacher out and the state pulled his license. Then Gebser’s family sued the school. O’Connor sided with the four conservatives to deny that a school district was responsible when a teacher harassed a student. Unlike in the employment arena, the protections for students under the federal education law, Title IX, were not nearly as clear and robust as the prohibition against workplace harassment in the Civil Rights Act, she said. So the only way the Court would tag the school was if the school actually knew what was going on and ignored it. Stevens, Souter, Breyer, and Ginsburg dissented.
A year later, in Davis v. Monroe County Board of Education, O’Connor switched sides. Unlike Gebser, Davis was an “attractive” plaintiff, as O’Connor often used the term. The youngster had been the blameless victim of relentless unwanted sexual harassment by a fifth-grade schoolmate; while her teachers and principal ignored her countless complaints, her grades tanked, and she contemplated suicide. Granting her fifth vote to the liberals to hold a school district responsible when it ignored complaints of student-on-student abuse, O’Connor authored the second opinion with Ginsburg firmly in agreement.
Although most of the employment and harassment cases were not close, the Gebser/Davis sequence was a reminder of how crucial O’Connor’s vote was to any novel or contestable issue of women’s rights.
WOMEN MAY BE EQUAL BUT MOTHERS ARE SPECIAL
While women workers and students were faring pretty well in the Court, the cause of women’s equality ran into trouble, predictably, where the cases challenged women’s traditional role as child bearers. Abortion having been pretty quiet since Casey, in 1998, the issue of how the law tied women to childbirth came up in a novel way: immigration. During the Vietnam War from 1964 to 1974, the United States sent hundreds of thousands of people, mostly men, to Asia. A lot of them fathered children with foreign women. American citizenship law gave the fathers eighteen years to claim their offspring, in order to confer citizenship on them. American mothers of children born abroad to foreign fathers had no such duty. Their children’s citizenship was assumed. The law discriminated. While the offspring of the Vietnam War were growing up, the Supreme Court had told the country it was skeptical of arbitrary distinctions between men and women. By the 1990s the door was closing on these children. And so the issue of parenthood arrived again at the Supreme Court.
Like many American soldiers stationed in Asia, Charles Miller fathered a child out of wedlock with a foreigner, in this case a Filipino woman, and did not claim her within the statutory time allowed. Twenty years later the daughter tried to become an American citizen.
The case, Miller v. Albright, is muddied, and Justice O’Connor concurred on the outcome for procedural reasons unrelated to the sex discrimination in the law. However, the rhetoric of the opinions made it clear that as of 1998 a majority of the Court was still not ready to demand equal treatment of men and women when the issue turned on their different roles in childbearing. Women, Justice Stevens suggested in his majority opinion, must be rewarded for the work of childbirth: “If the citizen is the unmarried female, she must first choose to carry the pregnancy to term and reject the alternative of abortion—an alternative that is available by law to many, and in reality to most, women around the world. She must then actually give birth to the child. [The citizenship law] rewards that choice and that labor by conferring citizenship on her child.” And not just bearing children. The law also favors women because it expects them to do the rearing: “their initial custody will at least give them the opportunity to develop a caring relationship with the child.” The law that a child born out of wedlock to an alien mother and American father must be legitimated before age eighteen “is therefore supported by the undisputed assumption that fathers are less likely than mothers to have the opportunity to develop relationships.”
In her dissent, Ginsburg first tries to put her standard smiley face on the decision. Maybe it’s just a run-of-the-mill case about whether the daughter can raise the father’s discrimination claim.
But she’s worried:
“Even if one accepts at face value the Government’s current rationale, it is surely based on generalizati
ons (stereotypes) about the way women (or men) are. These generalizations pervade the opinion of Justice Stevens, which constantly relates and relies on what ‘typically,’ or ‘normally,’ or ‘probably’ happens ‘often.’
“We have repeatedly cautioned, however, that when the Government controls ‘gates to opportunity,’ it may not exclude qualified individuals based on ‘fixed notions concerning the roles and abilities of males and females.’”
Ginsburg’s opinion draws on just a small sample of the decades of rhetoric from the Court, disclaiming any intent to close the gates of opportunity based on fixed notions. But even with the sturdy foundation she had built, as advocate and jurist, childbearing is never far from the scene in any discussion about women. Miller, the immigration case, seemed to approve the government’s policy of rewarding women by giving them automatic citizenship for their children.
As the Supreme Court approved rewarding women for childbearing, a raft of state laws were passed to drive them to it, by outlawing a common form of late-term abortion, dilation and extraction (“D&X”). A self-described “feminist,” the mental health advocate Jenny Westberg, says she started the new anti-abortion initiative in 1992 by getting hold of a copy of a medical paper describing the procedure for abortion providers. Westberg was a pretty good cartoonist, and she created a series of illustrations for the anti-abortion Life Advocate magazine. Aides to a Republican Florida congressman renamed D&X with the catchy phrase “partial birth abortion.” And the abortion wars flared up again. By the mid-’90s, the Republicans in Congress and states across the country began passing laws to prohibit D&X. (President Clinton vetoed the federal laws.)
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