by Irin Carmon
RBG’s first opinion as a Supreme Court justice was a dauntingly technical one. But three years into her tenure, she had a chance to finish something she had started decades before. Throughout the seventies, RBG had represented servicewomen in an ongoing bid to get brass to value their work equally. But the job of securing equality for women in the military was unfinished.
Another task was also incomplete. In her WRP years, RBG had never gotten the court to accept strict scrutiny for sex discrimination, the standard that would nearly write gendered categories out of the law. The women who wanted to attend a state’s military academy helped her finish the job, this time as a justice. In the 1996 case of the Virginia Military Institute’s refusal to admit women, RBG was happy to see that the federal government led the charge against the publicly funded school. For the litigator who had often faced down the federal government as an adversary, that was itself a victory.
VMI claimed that admitting women would undermine its mission, which included training cadets by an “adversative method” and which the academy argued couldn’t be used to train women. After the federal government filed a discrimination claim, VMI set up a weak imitation at a sister school, which the state named the Virginia Women’s Institute for Leadership.
With Chief Justice William Rehnquist in 1993 AP Photo/Doug Mills
“What we have here is a single sex institution for men that’s designed as a place to teach manly values that only men can learn, to show that men can suffer adversity and succeed, and a single sex institution for women that is openly, expressly, deliberately designed to teach to women womanly values, feminine values,” said Deputy Solicitor General Paul Bender at oral argument. (It was the same Paul Bender who had heard Felix Frankfurter reject a female clerk.)
RBG had just one thing to add. “If women are to be leaders in life and in the military, then men have got to become accustomed to taking commands from women, and men won’t become accustomed to that if women aren’t let in,” she said.
At conference, the vote, intoxicatingly, came down 7–1, with Justice Clarence Thomas recusing himself because he had a son at VMI and Scalia dissenting. The majority opinion was assigned to RBG. It would be her biggest victory yet. She could even approvingly cite cases she herself had won, and repudiate the bad old days, like when Myra Bradwell had been blocked from lawyering just because she was a woman.
FROM RBG’S OPINION IN UNITED STATES V. VIRGINIA
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In 1971, for the first time in our Nation’s history, this Court ruled in favor of a woman who complained that her State had denied her the equal protection of its laws. Reed v. Reed (holding unconstitutional Idaho Code prescription that, among “‘several persons claiming and equally entitled to administer [a decedent’s estate], males must be preferred to females’”). Since Reed, the Court has repeatedly recognized that neither federal nor state government acts compatibly with the equal protection principle when a law or official policy denies to women, simply because they are women, full citizenship stature—equal opportunity to aspire, achieve, participate in and contribute to society based on their individual talents and capacities.
As RBG has described her understanding of feminism, we must all be “free to be you and me.”
Without equating gender classifications, for all purposes, to classifications based on race or national origin, the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). . . . To summarize the Court’s current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is “exceedingly persuasive.” The burden of justification is demanding and it rests entirely on the State. The State must show “at least that the [challenged] classification serves ‘important governmental objectives and that the discriminatory means employed’ are ‘substantially related to the achievement of those objectives.’” . . . The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld (1975); Califano v. Goldfarb (1977) (Stevens, J., concurring in judgment).
RBG is happily citing her own successful legal strategy.
RBG is getting to cite her favorite Supreme Court case of widowed father Stephen Wiesenfeld.
. . . “Inherent differences” between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual’s opportunity. Sex classifications may be used to compensate women “for particular economic disabilities [they have] suffered,” to “promot[e] equal employment opportunity, to advance full development of the talent and capacities of our Nation’s people. But such classifications may not be used, as they once were, see Goesaert, to create or perpetuate the legal, social, and economic inferiority of women.
This may be a comment on pregnancy, which the Supreme Court has never deemed to be discrimination based on sex.
RBG is always adamant to distinguish laws that target previously discriminated groups in order to remedy that discrimination from those that perpetuate historical inequality.
This is the case that said women were too delicate to tend bar unless their husband or father owned the place.
. . . We conclude that Virginia has shown no “exceedingly persuasive justification” for excluding all women from the citizen soldier training afforded by VMI. . . .
RBG is getting to set a new standard for laws that classify by sex, basically finishing the job she started in the 1970s.
A prime part of the history of our Constitution . . . is the story of the extension of constitutional rights and protections to people once ignored or excluded. VMI’s story continued as our comprehension of “We the People” expanded.
RBG is laying her view of the Constitution, which she says is also “originalist”: It’s all there in the text; it’s society that has to catch up.
In his dissent, Scalia said that the court had snuck in strict scrutiny through the back door. But nothing could temper RBG’s joy. “I regard the VMI case as the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints,” she said. RBG sent a copy of her bench announcement to the ninety-year-old Justice Brennan, who had tried to get her five votes for strict scrutiny way back in Frontiero. She wrote, “Dear Bill, See how the light you shed has spread!”
On the day RBG read the opinion from the bench, a half dozen clerks were invited up to chambers to celebrate. There was no champagne, just an exultant justice. “It was the work of the court,” said former clerk David Toscano, who was there. “It was a good day in the work of the court.”
A little while later, RBG got a letter. It was from a 1967 graduate of VMI who said he was glad about the decision, because he knew young women who were tough enough to make it through. He even hoped his teenage daughter would consider it. A few months later, a second letter came from the same man. It was a bulkier envelope, with something tightly wrapped inside. As RBG unraveled it, she found a tiny tin soldier dangling from a pin. The letter writer’s mother had just died, leaving behind a pin that had been presented to all of the mothers at her son’s VMI graduation ceremony. He thought his mother would have wanted RBG to have it.
“I have been supportive of my wife since the beginning of time, and she has been supportive of me. It’s not sacrifice; it’s family.”
—Marty Ginsburg, 1993
THIS IS THE STORY that Marty used to tell: After Bush v. Gore, and RBG’s firm dissent, the two went to see the play Proof on Broadway. As they made their way back up the aisle for intermission, RBG unmistakable in her trademark scrunchie, the theater boomed with applause as people rose to their feet in appreciation. RBG couldn�
��t help but smile.
That’s when Marty, professor of tax law and inveterate joker, whispered loudly, “I bet you didn’t know there was a convention of tax lawyers in town.” RBG playfully smacked her husband in the stomach.
When Marty told this story in public, he would say it “fairly captures our nearly fifty-year happy marriage.” It was a story that was about her, and people admiring her for standing up for what she believed in, but it was also about Marty—Marty being irreverent and funny, Marty being the opposite of the reserved RBG, and Marty bringing out a side of her that no one saw unless Marty was there.
It was hard to believe it happened, but clerk David Toscano saw with it his own two eyes in chambers: the justice jokingly chasing Marty around her desk with scissors. (The reason why has been lost to history.) He teased her publicly, about how the Supreme Court knew nothing about tax law, about her favorite snack of prunes, and she pretended to be put out. In his official biography on his law firm’s website, in words that could only have been Marty’s, he was described as having “stood very low in his class and played on the golf team.” Marty wore short-sleeved dress shirts and worn-out golf shirts, even sometimes around the office. He told everyone how his wife had made Law Review at Harvard and he hadn’t.
RBG hugs Marty during her ten-year Supreme Court law clerk reunion. Collection of the Supreme Court of the United States
With the same fondly amused grin he usually wore, Marty would portray himself as the lucky guy who came along for the ride of a lifetime, who moved to Washington when his wife got a “good job.” It was a bit of a shtick. RBG, said her former clerk Margo Schlanger, “didn’t have a husband the way many men have wives,” meaning women who subsume themselves to their husband’s careers. “The model was of equality, where they both were crazy superstars, in their own realms.” Marty’s tax law chops earned him clients like Ross Perot, the adulation of his peers, and millions of dollars.
So when RBG was asked how she had managed to have such an extraordinary marriage, she often answered by saying that Marty himself was extraordinary, and he saw the same in her. “He thought that I must be pretty good,” RBG said, “because why would he decide that he wanted to spend his life with me?”
Toward the end of his life, Marty got a little more serious. According to Nina Totenberg, Marty told a friend, “I think that the most important thing I have done is enable Ruth to do what she has done.”
MAKING PARTNER
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At her confirmation hearings, RBG introduced Marty to the country with the phrase she had been using since the 1970s: her “life’s partner.” Each day, he would carry her briefcase into the Senate hearing room and spread out her papers on the desk. In Stephen Wiesenfeld’s testimony at the hearings, he said he and his wife, like the Ginsburgs, had been “among the pioneers of alternative family lifestyles.”
At the Greenbrier resort circa 1972 Collection of the Supreme Court of the United States
From the outside, neither Ginsburg seemed like anyone’s version of “alternative.” In New York, they had lived on the posh Upper East Side, on East Sixty-Ninth Street, and sent their children to Dalton and Brearley, private schools for the city’s elite. Marty used to sardonically describe his work as having been “devoted to protecting the deservedly rich from the predations of the poor and downtrodden.” On weekends, they golfed.
But if RBG hoped for a world in which men and women were freed of stereotypes, with full and mutual participation at both work and home, she could look to her own enduring marriage as an example. It had sustained her even in the years where the answer elsewhere had always been no. “Fortunately, in my marriage, I didn’t get second-class treatment,” she said.
What Wiesenfeld meant by “alternative,” and what was hinted by RBG’s use of the phrase life partner was a marriage in which the woman didn’t lose herself and her autonomy, in which two humans shared their lives and goals on equal footing. It wasn’t so common anywhere, least of all among people who came of age in the 1950s.
Burt Neuborne, about a decade younger and married to another feminist attorney, remembers trying to tell Marty how much he tried to emulate him. “It was impossible to praise him, he wouldn’t accept it. He shrugged it off. He turned it into a joke. ‘You’re not gonna blame that one on me.’ I said, ‘Marty, this is a new era, we all need role models.’”
RBG with her family at her swearing-in in 1993 AP Photo/Doug Mills
In 1993, when the New York Times reported on the unusually active role Marty had taken in RBG’s nomination, and the fact that he had over a decade earlier moved to Washington for her spot on the D.C. Circuit, Marty did not congratulate himself. “I have been supportive of my wife since the beginning of time,” he said, “and she has been supportive of me. It’s not sacrifice; it’s family.”
No one had been surprised that RBG had left Harvard for her husband’s career. But she saw it as a give-and-take. “In the course of a marriage, one accommodates the other,” RBG told me. “So, for example, when Marty was intent on becoming a partner in a New York law firm in five years, during that time, I was the major caretaker of our home and then child.”
In Washington, RBG crashed her car into a gate, so Marty began driving his wife to the federal courthouse every day, until her Supreme Court appointment entitled her to her own car and driver. He read reams of books and told her which ones were worth taking a break from briefs. At parties, where she was inclined to hang back, he kept her moving around the room with gracious ease.
Marty often had to drag RBG out of the office. When she promised she would leave but hung on to do one more thing, Marty sometimes sang to her a line from Gilbert and Sullivan’s Pirates of Penzance: “Yes, but you don’t go!” Asked once if her husband ever gave her advice, RBG replied that the advice was generally for her to come home and eat dinner—he would start calling at seven thirty, and by nine she would have relented—and when she stayed up nights working, his advice was for her to go to sleep.
“Well, it’s not that bad advice,” Marty, sitting beside her, replied. “You have to eat one meal a day and you should go to sleep sometimes.”
RBG paused to look at her husband lovingly, and then went on, “The principal advice that I have gotten from Marty throughout my life is that he always made me feel like I was better than I thought myself. I started out by being very unsure. Could I do this brief? Could I make this oral argument? To now where I am. I look at my colleagues and I say, ‘It’s a hard job, but I can do it at least as well as those guys.’”
CHEF SUPREME
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Marty and RBG were lucky—they realized in retrospect—that soon after marrying, they got sent to a military base in Oklahoma. Spending almost two years away from everything they knew, Marty said, allowed the two “to learn about each other and begin to build a life.”
For the first time in their lives, they had time. “I had a job that, quite literally, required my undivided attention four hours every week,” Marty quipped of his army time. “You may as well just share jobs.” That didn’t necessarily mean splitting everything down the middle, but “doing whatever you did a little better or liked a little more or disliked less.”
It turned out there was something Marty did a little better. It all started with tuna casserole, or at least something RBG called tuna casserole. At Fort Sill one night, right after they were married, she dutifully presented the dish. That was her job, after all, or one of them. Marty squinted at the lumpy mass. “What is it?” And then he taught himself how to cook.
The Escoffier cookbook had been a wedding gift from RBG’s cousin Richard. The legendary French chef had made his name at hotels like the Ritz in Paris and the Savoy in London. It was not exactly everyday fare for two young working parents on a military base in Oklahoma. But Marty found that his chemistry skills came in handy, and he began working his way through the book.
Photograph by Mariana Cook made at the Ginsburgs’ home in 1998
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bsp; Still, for years, the daily cooking was still RBG’s reluctant territory. Her repertoire involved thawing a frozen vegetable and some meat. “I had seven things I could make,” RBG said, “and when we got to number seven, we went back to number one.” Jane isn’t sure she saw a fresh vegetable until she was sent to France the summer she turned fourteen. Around that time, she decided, as RBG put it to me, “that Mommy should be phased out of the kitchen altogether.” RBG cooked her last meal in 1980.
The division of labor in the family, Jane would say, developed into this: “Mommy does the thinking and Daddy does the cooking.” Growing up, James says, he got used to people asking him what his father did for a living, when his mother did something pretty interesting too.
In Washington, the Ginsburgs’ shelves held more cookbooks than tax books. They filled three sets of shelves from floor to ceiling in the living room. Marty would consume cookbooks like they were mystery novels. “I hate Marty Ginsburg,” Roger Wilkins, a friend of the couple’s, once declared on a panel. “It’s not because in a town known for its ephemeral passions, he’s carrying on this lifelong love affair with this wonderful woman. It’s because he cooks.” In his house, Wilkins said, he was constantly asked, “Why can’t you be like Marty?” Marty’s recipes, joked another friend, were “the edible version of the Internal Revenue Code.”
So RBG ate well. And slowly. Marty used to joke that it was a good thing Bill Clinton hadn’t asked her to lunch at the White House, as he had asked Stephen Breyer, or else they’d still be eating.
JANE’S MOMMY WORKS
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RBG had long known that pregnancy singled women out for unequal treatment. Parenting even more so. “What is very hard for most women is what happens when children are born,” she said. “Will men become equal parents, sharing the joys as well as the burdens of bringing up the next generation? But that’s my dream for the world, for every child to have two loving parents who share in raising the child.”