Authors: Linda Hirshman
With her usual laserlike focus, Ginsburg kept lining up her cases. And boy, were there cases. One by one, the entire structure of American law, built blindly on antique assumptions about women's role and behavior, came under the scrutiny of the women's movement lawyers. In the decade after
Reed v. Reed
, more than twenty cases challenging sex discrimination reached the highest court. Aryeh Neier was right; it was the civil rights movement of the era. And Ginsburg got the lion's share for herself.
Even as she was in the midst of her career as an advocate, some people were already planning for her to be making the decisions, rather than merely arguing for them. In her high school yearbook in 1973, her daughter, Jane, listed her “ambition” as seeing “Mother appointed to the Supreme Court.” Jane was farsighted, considering that there were almost no women on any court. When President Richard Nixon floated the name of the California judge Mildred Lillie for a Supreme Court vacancy in 1971, the American Bar Association lost no time in finding her to be unqualified. But, as Nixon's uncharacteristically progressive suggestion of Lillie reflects, change was in the air. (When word of Nixon's openness to suggestion leaked out, he heard from a then-obscure Arizona state senator, Sandra O'Connor, urging him to move to the distaff side!) As Janeâand Sandraâdreamed, two of Ginsburg's colleagues at Columbia, Professors Philip Schrag and George Cooper, were working Governor Nelson Rockefeller to appoint the rising female star on their faculty to the highest court in New York. Nothing came of it, but the suggestion, surfacing just three short years after
she turned her attention to litigating women's equality, shows the force field she created.
Still, if Ginsburg was going to be in front of the bench, rather than on it, she at least wished she could be the one deciding what cases she'd be arguing. But she couldn't even control her own ACLU! One unpleasant morning in the fall of 1973, she opened the Supreme Court edition of the lawyers' weekly newsletter and learned that a Florida man was using the equality language of the Constitution to take money from poor widows. Under Florida law, widows, but not widowers, were entitled to a tiny break on their state taxes. The widower Melvin Kahn thought that was sex discrimination, and he wanted it stopped. To Ginsburg's horror, Kahn's unappealing case was going to the high court. When she called the lawyer who brought Kahn's challenge to the widows' tax break,
Kahn v. Shevin
, he expressed delight at hearing from another lawyer from the sponsoring organization, her very own ACLU. No one had told her.
She grabbed it to handle at the Supreme Court, but her heart was heavy. Protection was always the Achilles' heel of the movement for women's equality. When the Equal Rights Amendment resurfaced in the 1960s, women's liberal allies from the labor movement dragged their feet about supporting it, because they saw that formal equality was incompatible with laws mandating maximum hours and the like for women, but not men. The whole body of pension law was shot through with little special concerns for old ladies, as was the law of alimony for wives. The draft law contained a blanket exemption for all females. Conservative adversaries of the Equal Rights Amendment such as Professor Philip Kurland and Phyllis Schlafly relied heavily on the loss of protections such as alimony and exemption from the draft to drive support away from the equality law. Ginsburg was at ground zero in these debates. She understood that there might be circumstances where affirmative action for women was required to remedy specific bad practices from the past. But at the beginning of the movement toward legal equality, she was much more concerned that the law's assistance was more cage than gilt.
Both her prior cases had directed the Court's gaze toward women as competent administrators or women as soldiers. The last thing she wanted was to ask for the expansion of the equal-protection clause to sex by challenging something that protected widows and tugged on the heartstrings of justices such as William O. Douglas, whose widowed mother had struggled mightily to survive. As a technical matter, the Florida law was discriminatory and it did rest on presumptions about women being dependent, just like Ginsburg's other cases. But the challenge was unappealing.
It was her only defeat. On April 24, 1974, Justice Douglas sustained the widows' tax preference. His opinion was the first setback to Ginsburg's strategy of challenging laws that assumed a subordinate role for women. Ginsburg's argument against protective laws such as the widows' tax break and protective labor laws was that the good they did to women in the short term was offset by the harm they did by locking women into a dependent stereotype in the long run. Everyone knows single women are poorer than men, Douglas wrote, in a direct rebuff to her position, and they need protection. Preferences such as the widows' tax exemption were beneficent, Justice Douglas continued, not a short-term patch destined in the long term to harm women by excluding them from the risks and rewards of the larger world. And, Douglas continued gratuitously, gender is not necessarily suspect in constitutional law anyway. After all, no one's talking about drafting women, are they? Poor, unprotected women exposed to equality, which will inevitably end in their being drafted, sounded just like the horrible picture Professor Kurland painted to defeat the ERA. Well, not while Justice Douglas was around.
With
Kahn
, the number of justices willing to subject sex discrimination, like racial segregation, to strict scrutiny, went from the four who had supported Justice Brennan in
Frontiero
to two. Marlo Thomas's feminist TV special,
Free to Be You and Me
, might have appeared to enormous acclaim just the month before the decision in
Kahn v. Shevin
(and a subsequent Emmy Award), but most of the Nine Old Men thought the impoverished widow was closer
to the truth of women's lives than That Girl. They did not see their decision perpetuating the helpless-widow image as harmful; they thought they were helping the poor old lady out.
Ginsburg was alarmed. The upcoming Supreme Court term would truly be the Term of the Woman. When the Court opened for business the first Monday in October 1974, it would consider cases involving almost every aspect of women's equality: women on juries; women as soldiers, defending their country; women as workers, earning Social Security; and even parents' obligations to their girl children. What the Court did in 1974â75 could determine the course of the women's legal movement for decades. Ginsburg was well aware: she was arguing half the cases. And now she was starting that momentous year deep in the precedential hole. Curse Melvin Kahn.
But there was an ace in that hole. For the first time in its history, as the Supreme Court addressed the issue of whether to turn back the clock on sex discrimination following
Kahn
or to move forward building on
Frontiero
, the 1974â75 Court included among the elite rank of Supreme Court clerks
four women.
That was almost as many women clerks in one term as the Court had experienced in its entire history. Justices Marshall and Blackmun had female law clerks. More important, so did Justice Powell, and, for the first time, Justice Brennan.
Therein lies a tale. Despite his liberal opinions, Justice Brennan did not go willingly into the new world of gender equality. “Send me someone else,” Brennan had said abruptly in 1970, when his informal network of clerkship sources at Berkeley Law School called to recommend Alison Grey, first in her class. The mortified law professors had to tell their star student she would not be Brennan's pathbreaking first female clerk after all. Three years later, in 1973, Berkeley professor and former Brennan clerk Stephen Barnett tried again, with the equally well qualified graduate Marsha Berzon. This time Barnett would not take Brennan's immediate no for an answer. He courageously wrote to Brennan that the justice was taking a serious chance of public embarrassment or, worse, a lawsuit. “I cannot believe that, on reflection,” he wrote to this
most powerful man, “you will continue a policy that is both unconstitutional and simply wrong. . . .” Brennan caved. A few months later, Marsha Berzon arrived, complete with child-care responsibilities, having to leave chambers each afternoon at five to retrieve her baby, Jeremy, from day care. In a delicious irony, Justice Brennan was also running out. His daughter had gotten divorced and she and her baby were living with him. It was Grandpa Brennan's job to fetch his granddaughter from day care while his daughter rebooted her career.
Before the 1974 term opened in October, Justice Powell's new female clerk, Penny Clark, decided her justice should get a little help with the Term of the Woman. Clark knew her customer. In his view of the world, “there are all kinds of good reasons why you would differentiate between men and women and there was no way he was going to make the government prove there was a compelling reason for those differences.” She decided to write him a memo, a preterm overview of three pending sex-discrimination cases. She opened with a bland neutrality: “I have attempted to outline an approach to sex discrimination that will harmonize with your opinions on equal protection, with special attention to the role the Court should play in this controversial area.” The Clark memorandum looks even-handed and actually sounds quite conservative. Clark cast the proponents of equal rights such as the ACLU lawyer Ginsburg as immoderate and describes their position as “eliminating all, or virtually all, distinctions between the sexes.” In a gratuitous aside, she described the “moderates,” including outright opponents of the Equal Rights Amendment, as fearing to put their opinions in print, presumably because of an oppressive climate of political correctness from the left. Worse still, the “activists” see the job of rectifying relations between the sexes as the business of the Court! The “moderates” prefer the more flexible political process, so much better suited, she advises, to solving exquisite problems of a changing social order.
She also laid out in detail why the activists were wrong in equating sex with race: women had been voting for a half century, they were not ghettoized away from the governing sex, indeed they
were sleeping with the electorate, so to speak. Many measures were for their “protection,” and they counted on such protection and “participated” in its enactment. Since sex is not suspect like race, Ginsburg's pet plaintiffs, men, who always had the upper hand, had no standing to ask for social neutrality in the few areas where the society helped women; indeed no one had standing to ask the society to just act better, sexwise. So much for Ginsburg's theory that sex-role stereotyping hurts everyone, and plaintiffs could as easily be men as women. (When, some years later in 1978, Powell explicitly said sex was not like race in an affirmative action case, Ginsburg died a little. Maybe time constraints made him terse, she speculated, and when the Court had a sex case it would understand why women sometimes need affirmative action too.)
Despite the unattractive tone, Clark laid out a theoretical framework that allowed her justice, Powell, to remain faithful to his retrograde social vision and still vote to strike down laws that either hurt women or benefited men or were ambiguous in their effect. The precedents since
Reed v. Reed
and the incontestable social changes in women's roles made it impossible to simply rubber-stamp sex discrimination in the law, she says. “The touchstone,” in the brave new world of reviewing sex-based legal classes, she concluded, “should be injury to women.” In case he might miss the injury, she gave him a little cheat sheet on questionable sex distinctions. “Laws that use sex as a classifying device without good reasons (preferably factual) should fall. Laws that discriminate against women will usually be invalid” because they don't serve a “legitimate state interest” standard. When looking for a state interest, she warned, you should look carefully, even at laws that seem to help women, because “legislative assumptions about women's proper role” are often just old-time stereotypes and simply not reliable.
And so, Clark told Justice Powell, here's what you ought to do in the first three cases coming down the pike in the Term of the Woman. In
Schlesinger v. Ballard
, a disgruntled male soldier is suing the army because it gives the handful of women in the armed services extra time to qualify for promotion. Turn the guy down, she recommended. After all, women don't get much chance to
show their stuff in the sexist and old-fashioned army, so the rule just protects them a little bit against the effects of the prior discrimination. Sort of like affirmative action or the widows' real estate deduction in
Kahn
; no harm to women, no foul.
Second, duck Ruth Ginsburg's case,
Edwards v. Healy
, on behalf of all of Louisiana's women discouraged from jury service by the requirement that, rather than be called, they must volunteer to serve. Louisiana just changed its offending jury arrangements anyway, so you have an easy out, because you can say the Louisiana women's gripe is met and the case is moot. But strike down Louisiana's old jury law by another route, using
Taylor v. Louisiana
, a case brought by a male defendant challenging his conviction by an all-male Louisiana jury. His case is definitely not moot, as he is rotting in jail now. The race cases established long ago that a criminal jury must resemble the community from which it is drawn, and Louisiana is definitely not all male, so the convicted criminal's case is pretty much a slam dunk. When ruling in the criminal case, she continues, you'll probably have to overrule your 1961 decision in
Hoyt v. Florida
, which allowed such female volunteer jury arrangements in Florida. However, without any serious women's lib taint, you can take out Louisiana's law, because the standards for a fair jury are particularly demanding since the Court struck down all-white juries years ago. In a democracy with women common on the voter rolls, being tried by a jury with no women on it may not be as bad as the all-white juries, but it is still pretty raw.