Notorious RBG

by Irin Carmon

  RBG made the Law Review, a distinction Marty hadn’t managed. She was one of two women—“roses amid the thorns,” as a photographer put it while positioning them on either side of the men of the Law Review. One night, near midnight, she found herself frantic inside Lamont Library, barred from checking a citation because no women were allowed in that reading room. RBG begged the guard to let her stand at the door while he grabbed the journal for her, but he wouldn’t budge. The annual banquet was a perk of being on the Law Review, but RBG wasn’t allowed to bring her beloved mother-in-law to it, and the men weren’t allowed to take their wives, because even though there were female members, it was still a boys’ club. Women were barred from living in the dorms, the exact opposite policy from Cornell, and neither rule made sense to RBG. There was no women’s bathroom in the main building, where exams were held. After that first year, a classmate named Rhoda Isselbacher, who was pregnant during the exam period, informed the men she would use their bathroom whether they liked it or not.

  The men (and two women) of the Harvard Law Review, 1957/58 Historical and Special Collections, Harvard Law School Library

  RBG didn’t think to complain. She was lucky, in a way. Harvard had said she had to submit her husband’s father’s financials now that she was married, so her father-in-law, Morris, had agreed to pay her tuition. Some of her classmates worried that going to law school would ruin their chances of marriage, or that their husbands would tire of having wives with plans, but RBG had a husband who bragged that his wife had done better than him. He teased her only about her driving, and even RBG admitted she was a terrible driver.

  By their second year in Cambridge, in 1957, RBG had worked out a kind of rhythm. Classes and studying until 4 P.M., then home to relieve the babysitter, a New England grandmotherly type.

  Her hours with Jane before bed helped leaven the library time. Marty was realizing his lifelong passion for the tax code. Then the doctor found the tumor in his testicle. Cancer, which had already stolen RBG’s mother, threatened to take Marty too. The doctor prescribed radical surgery and daily radiation for six weeks. The prognosis was grim.

  Marty, Jane, and RBG in summer 1958 Collection of the Supreme Court of the United States

  The last thing RBG was going to do was to act like Marty was dying. So she threw everything into making sure he stayed on track in his studies, despite having missed all but two weeks of the semester. Who were the best note takers in his classes? She handed them carbon paper and told them to pass on the class notes. Each night, she typed these notes up, with the occasional help of a girlfriend of Marty’s classmate.

  Marty was weak, but he came alive when his classmates came by and they could argue the finer points of corporate reorganization. Sometimes he woke at midnight, and that was the only time he could eat. Too ill to type, he would lie on the couch and dictate to his wife his paper on loss corporations. When Marty fell asleep around 2 A.M., RBG would begin her own work. That was how she learned she could get by on just one or two hours of sleep, as long as she could sleep in a little on weekends.

  Unable to think about a reality in which Marty had no future, RBG went to Dean Griswold and asked him if Marty’s class standing could be based on his first two years. He would get whatever his grades would show, Griswold told her, and they would record that he had been sick. RBG went home and told her husband, “Do whatever you can do to pass. Only your first and second years will count.” Asked sixty years later if this had been a white lie, RBG only said, “He was at ease for those exams.”

  Marty made it through, against all odds, and graduated. He even found work as a tax attorney at a firm in New York. The young family was determined to stay together, and RBG found herself again at Dean Griswold’s mercy. She had waited so long for her Harvard degree. If she took her third-year classes at Columbia in New York, could she still get one? They didn’t know how long Marty would live—couldn’t they get a hardship exemption to the transfer policy? Again, Griswold refused.

  RBG showed up on the Columbia campus too afraid to even ask whether the law school would grant her a degree. The handful of women at Columbia Law School didn’t have it easy either. Hazel Gerber, whose son would one day be one of RBG’s favorite clerks, once began a sentence in class with “I feel—” and her law professor cut in, “Miss Gerber: Women feel, men think.” RBG’s reputation preceded her. “We had heard that the smartest person on the East Coast was going to transfer, and that we were all going to drop down one rank,” classmate Nina Appel later told the New York Times. They were right to worry. RBG made the Law Review a second time and graduated tied for first in her class.

  Harvard Law’s strict transfer rules stayed in place for decades. In the late seventies, as the policy came up for fresh scrutiny, Marty wrote a letter to the Harvard Law Record to complain of his family’s ordeal. The editors published his letter, appending a note:

  As Mr. Ginsburg told us, the Ruth in the letter is Ruth Bader Ginsburg, professor of law at Columbia and general counsel of the American Civil Liberties Union. Just think what else she might have accomplished had she enjoyed the benefits of a Harvard degree.

  LADY IS A FOUR-LETTER WORD

  * * *

  One day in the 1959 term, Associate Justice Felix Frankfurter burst into his chambers and announced to his clerks that he had unbelievable news. Frankfurter held what was sometimes called the Jewish seat on the Supreme Court. He had a habit of having Harvard Law professors pick his clerks. The young men who served as Supreme Court law clerks—and they had almost always been men—had the most elite entry-level jobs in the business, working closely with the justices to research and draft their opinions. The boys would never guess who Professor Al Sacks wanted to send Frankfurter that year, he told them: Ruth Bader Ginsburg.

  Paul Bender, a Frankfurter clerk who had known RBG since James Madison High School and through Harvard Law, ventured his support. Frankfurter protested that Ginsburg “had a couple of kids, and her husband has been ill, and you know that I work you guys very very hard, and I do curse sometimes.” Almost all of that was false. RBG had only one kid. Bender believed he and his compatriots had “the softest job of all the law clerks at the court.” There was more shading of the truth, Bender said: “The justice did not use four-letter words.” (There is no remaining evidence that, as a much retold story has it, Frankfurter demanded to know if RBG wore pants, as he despised girls who wore pants.)

  Frankfurter had never refused a recommended candidate, but when word reached RBG that she would not clerk on the Supreme Court, she was not surprised. She knew that Judge Learned Hand, a Federal Court of Appeals judge she idolized, had a policy against hiring women because he was (actually) known to be potty-mouthed and didn’t want to have to watch his language around women. She had gotten used to seeing sign-up sheets at Columbia for firm interviews that were labeled “men only.” RBG had worked at the law firm of Paul Weiss one summer, but it turned out the firm had already hired one woman that year, and one was enough for them. (They hired Pauli Murray, a black woman whose work would one day have an enormous impact on RBG.) To her two interviews, RBG wore a black tailored suit that her mother-in-law had chosen for her. She got no offers. As RBG saw it, she had three strikes against her: She was a woman, the mother of a four-year-old, and a Jew.

  Gerald Gunther, a constitutional law professor at Columbia, was determined to find his brilliant student a spot—even if it involved blackmail. Federal judge Edmund L. Palmieri of the Southern District of New York, a Columbia grad, always took Gunther’s recommendation without question. But Palmieri was skeptical of Gunther’s pick that year. Would RBG really be up to the job with a small child at home? Gunther promised that if it didn’t work out, he would supply Palmieri with a male replacement. And if Palmieri didn’t give this young lady a chance, Gunther swore he would never send Palmieri another clerk again. Whether carrot or stick, something worked.

  Palmieri did not send the young Mrs. Ginsburg home. She worked even harder
than she probably needed to, coming in on weekends and taking work home. Palmieri later said she was one of his best clerks ever. As it happened, Judges Hand and Palmieri lived around the corner from each other, and Palmieri often gave both Hand and Ginsburg a ride home from the federal courthouse. “The man would say or sing anything that came into his head,” RBG remembered of Hand. “I once asked, ‘Judge Hand, in this car you speak freely—you say words my mother never taught me. I don’t seem to be inhibiting you.’ He replied, ‘Young lady, I’m not looking at you.’”

  After she spent two years clerking, when the doors of corporate law firms tentatively swung open, RBG no longer wanted to walk through them. Instead, in 1961, she accepted an invitation for lunch at the Harvard Club with Hans Smit, a Dutchman she had met at Columbia. A few minutes after she’d entered from a small, red side door where the club begrudgingly let women in, Smit said, “Ruth, how would you like to coauthor a book about civil procedure in Sweden?” He was putting together a comparative law project at Columbia. Smit had no trouble finding men to go to France and Italy, but finding someone ready to become fluent in Swedish and then travel to Sweden to study the legal system was a taller order.

  RBG wasn’t sure she could find Sweden on a map. But she knew how she felt about writing a book of her own. And though she only half-realized it at the time, there was another reason she took Smit up on his offer. Jane was in first grade. RBG was nearing thirty, and she had never lived alone, or spent much time on her own at all. She wondered if she could cut it. Marty agreed to hold down the home front, and he and Jane would eventually come visit.

  At the airport in Stockholm, Swedish city judge Anders Bruzelius, who had arrived to fetch her, walked right by her, expecting a much older woman. Nevertheless, RBG had arrived at the right time. In the postwar era, Swedish women had begun to enter the workforce in large numbers, more than American women had. They found their liberation to be partial. Journalist Eva Moberg spoke for many Swedish women when, in a 1961 essay, she demanded to know why women now had two jobs while men had one. “Actually, there is no biological connection whatsoever between the function of giving birth to and nursing a child and the function of washing its clothes, preparing its food, and trying to bring it up to be a good and harmonious person,” Moberg wrote. “Both men and women have one main role: that of being human beings.” In the summer of 1962, during one of RBG’s trips, another American woman arrived in Sweden. Actress Sherri Finkbine had tried to get an abortion after taking the then-common sleep aid thalidomide, which doctors belatedly realized caused severe fetal disabilities. Abortion was still broadly illegal in the United States, and only Sweden opened its doors to Finkbine.

  When RBG wasn’t immersing herself in the Swedish legal system or watching Ingmar Bergman movies sans subtitles, she observed these debates in awe. Who knew another world was possible for women—one in which they could work, fight back at unfair conditions, end a pregnancy if they felt they needed to? One where the government, pushed by activists, had begun to take an active interest in freeing men and women from prescribed gender roles? It was a personal revolution for her too. She found out in her first six weeks on her own that she could do just fine.

  Back in New York, Smit encouraged her to teach some civil procedure classes at Columbia and to overcome her shyness by speaking at international conferences. She and Bruzelius published their book on Swedish civil procedure, later called the best English-language book on the Swedish judicial system. (True, at the time, it was the only one.) She felt surer of herself, but there was too much going on to think about it much. It would be a few years before RBG realized just how much she had learned in Sweden. It would change her life.

  “So it was that ten years of my life that I devoted to litigating cases about—I don’t say women’s rights—I say the constitutional principle of the equal citizenship stature of men and women.”

  —RBG, 2010

  RBG HAD SKIPPED LUNCH the morning of January 17, 1973. She was afraid she would vomit. Wearing her mother’s pin and earrings, like a soldier suiting up for battle, RBG stood alone in front of nine stone-faced men and asked them to do something they had until then refused to do. Recognize that the Constitution banned sex discrimination.

  All oral arguments at the Supreme Court begin the same way: “Mr. Chief Justice, and may it please the court.” You can listen to the recording of RBG speaking these words, how at first they came out a little shakily. It was her first time arguing before the court.

  To still the queasiness in her stomach, she had memorized the opening sentence. She told the justices about Sharron Frontiero, an air force lieutenant whose husband, Joseph, had been denied the same housing, medical, and dental benefits as other military spouses, simply because Sharron was a woman and Joseph was a man.

  Fourteen months earlier, the court had ruled on the case of an Idaho woman denied the right to administer her dead son’s estate because she was a woman. The justices said in Reed v. Reed that the state couldn’t automatically assume men were better equipped to handle an estate than women. But they had left unsettled the broader question of whether discriminating on the basis of sex was almost always unconstitutional. RBG took a deep breath and told the justices they had to finish the job they started.

  The state law in Reed and the federal one she challenged that day in Frontiero v. Richardson, RBG argued, drew on “the same stereotype. The man is or should be the independent partner in a marital unit. The woman, with an occasional exception, is dependent, sheltered from bread-winning experience.”

  RBG usually looked for Marty in a room anytime she had to speak in public, but this time she had to settle for knowing he was behind her, in the section reserved for lawyers admitted to argue before the Supreme Court.

  At Rutgers School of Law, where RBG began teaching in 1963Rutgers School of Law–Newark

  Suddenly, she felt the ground steady under her. These men, the most important judges in the country, were her captive audience for the next ten minutes. RBG knew so much more about the case and the topic than they did. She had to teach them. She knew how to do that. RBG had been teaching law for almost a decade.

  “Mrs. Ruth Ginsburg” read the Supreme Court bar admissions card she had been handed in the court that day. RBG had gone by Ms. since there had been a Ms. The students in her Columbia seminar who had come along that day grimaced and wanted her to demand a change. She would not. RBG was there to win, not to rock the boat when it wasn’t strictly necessary.

  Her argument was radical enough. These distinguished men of the court thought of themselves as good fathers and good husbands. Men and women were fundamentally different, they believed, and women were lucky to be spared the squalor and pressures of the real world. This little woman, not yet forty, had to make the justices see that women deserved the same standing in the world as men.

  Treating men and women differently under the law, RBG told the justices, implied a “judgment of inferiority.” It told women their work and their families were less valuable. “These distinctions have a common effect,” RBG said sternly. “They help keep woman in her place, a place inferior to that occupied by men in our society.”

  Behind her sat Brenda Feigen, who had cofounded the ACLU’s Women’s Rights Project with RBG one year earlier. Feigen had casebooks open on the desk before her, ready to provide RBG with a citation if she needed it. But RBG didn’t need it. She rattled off the page numbers and volumes as casually as if she were giving a friend her phone number.

  Her opponent that day was the federal government. In a brief, the government defended its policy of assuming women were dependents and allowing only a narrow pool of men to apply for dependent benefits. After all, most breadwinners were men. On the first page of that brief was the name of Erwin Griswold, RBG’s old Harvard Law dean, now the nation’s solicitor general. She’d come a long way from telling Dean Griswold she’d gone to law school to better make wifely chitchat with Marty.

  The justices still hadn’
t said a word. RBG continued: “Sex, like race, is a visible, immutable characteristic bearing no necessary relationship to ability.” The analogy had special meaning in the constitutional context: In a series of cases triggered by Brown v. Board of Education, the court had said that laws that classified on the basis of race were almost always unconstitutional, or deserving “strict scrutiny.” The court had said in Reed that it wasn’t applying strict scrutiny, but then it seemed to do so anyway. Were laws that classified what men and women could do blatantly unconstitutional the way laws classifying by race were? RBG boldly urged the court to say they were.

  Her time was almost up. RBG looked the justices in the eye and quoted Sarah Grimké, the abolitionist and advocate for women’s suffrage. “She spoke not elegantly, but with unmistakable clarity,” RBG said. “She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’”

  Lawyers arguing at the Supreme Court sometimes have trouble getting out a full sentence. That January day, on an empty stomach and with Brooklyn vowels still in her voice, RBG spoke for ten minutes without a single interruption from the justices. She had stunned them into silence.

  Underneath her composure, RBG was trembling. Were the justices even listening? She would have to wait five months to find out. As the crowd filed out after the argument, a stocky figure approached RBG. It was Dean Griswold, who had been watching one of his men argue against RBG and the other lawyer representing Frontiero. Solemnly, Griswold shook RBG’s hand. That night, Justice Harry Blackmun, who in his diary graded lawyers on their performance before the court, gave RBG only a C+. “Very precise female,” Blackmun wrote.