Sisters in Law (15 page)

The quibble is revealing. Powell found the impermissible discrimination in Paula Wiesenfeld, the working mother's inability to provide a survivor benefit for her husband. As Powell saw it, Paula therefore accumulated fewer Social Security benefits while working than a comparable male worker. But what Powell really wanted to say in writing a separate opinion from Brennan's was
that it was clear to him who
should
stay home with a baby. No using the law to attack sex-role stereotypes for Powell: “I attach less significance to the view emphasized by the Court that a purpose of the statute is to enable the surviving parent to remain at home to care for a child. In light of the long experience to the contrary, one may doubt that fathers generally will forgo work and remain at home to care for children to the same extent that mothers may make this choice.” Men should not stay home.

So appealing was the Wiesenfeld family that in the end even Justice Rehnquist cast one of his few votes for women, going along with striking down the discriminatory law because it hurt the “child of a contributing worker.” To the end of Rehnquist's life, he occasionally asked Ginsburg about Jason Wiesenfeld, who would always be the “baby” to Rehnquist.

And so the all-male Supreme Court managed to reproduce the entire history of the feminist movement. Justice Brennan's opinion for the five-man majority reflected the “activist” (and Ginsburg's) position that men and women could work for wages or stay home with babies, without being tied in to a stereotypical sex role. But he knew he could never get a majority of his Court to say that any distinction was suspect, as he had come within one vote of doing in
Frontiero
, before the Court started retrenching. The argument that sex discrimination was as constitutionally illicit as race was over for the moment. Justice Powell advanced the Betty Friedan formal equality argument that if women work for wages, their wages should be the same as a man would make. Of course, he reminded his audience, women should also be culturally burdened with caring for the home. And Justice Rehnquist foreshadowed the postfeminist argument that children are the most important concern in any decision.

Ginsburg never got the Supreme Court to say that sex was like race. However, except for the hardest cases, war and sex, never again would the Supreme Court say that an American law could treat women differently from men simply because they were women. The cultural issues—male caregivers as “indolent,” babies as the most important job—would remain like little land mines
ready to explode the movement once Ginsburg's job of establishing formal legal equality was done. But culture was not Ginsburg's task: she would change the law. Without the law telling people that women are different and destined for domestic life, the culture had the chance to change women's roles. After that, as she wrote in one of her many speeches, housewifery should be “freely chosen, not thrust upon them ‘willy-nilly.'”

Ginsburg was not the only one who recognized the Term of the Woman. As the Court deliberated over
Weinberger
v. Wiesenfeld
, she got a letter from her ERA opponent Philip Kurland, who edited a scholarly journal about the Supreme Court. Kurland would be delighted if Ginsburg would write about the “slew of sex discrimination cases” on this year's docket. She responded with a warning that she could hardly be objective, since she was the lawyer in the main ones! As long as she had his attention, however, on another subject entirely, she felt obliged to warn him that he was in danger of missing out on the opportunity to have an extraordinary student in the “excellent quality course” he offered at the University of Chicago. Jane Ginsburg was having “difficulty getting permission to take [Kurland's seminar] in the spring quarter,” fancy that. Two weeks later, Kurland wrote to tell Ruth that his class was studying the opinion in the
Weinberger v. Wiesenfeld
case, since one of the students, her daughter, was kind enough to share her copy. Somehow Jane got the necessary permission to take Professor Kurland's course.

When Ginsburg agreed to comment on the several women's cases for Kurland's review, she had been worrying about the decision in Wiesenfeld's case. “I'm hoping for four votes,” she told Stephen in a phone call. On March 19, 1975, Wiesenfeld's phone rang again. It was Ruth at a pay phone at the side of the highway. The news had come over the radio that she had won their case. “What was the vote?” she asked anxiously. (He did not know either.) She soon learned it was unanimous. “She gave the best oral arguments we heard the entire term I clerked,” Penny Clark remembers, “extremely articulate, very self-possessed, not a hint of nervousness or uncertainty, she stated her case very clearly and made persuasive arguments. For all of the years from that time, whenever I heard
of her, I have a mental picture of her in a red suit—that very petite person standing very straight at the podium and making this really high-quality argument. And it was huge because there weren't very many woman mentors around, to pattern my conduct as a lawyer and an oral arguer on. So what it said to me as a young woman lawyer starting out is that there are women lawyers working at the height of their profession and I can do the same. It was inspiring!”

A few weeks later, the Ginsburgs had a party to celebrate the victory in the Wiesenfeld case. Forty or more student helpers, funders, and the Wiesenfelds, father and son, gathered at their huge apartment on the Upper East Side. Jason Wiesenfeld was three. The Ginsburgs' young son James, then eight, was waiting for him with toys and presents. After the party, Ginsburg wrote to Wiesenfeld to tell him what a wonderful child Jason was and how proud he should be. And so the stay-at-home dad and the future Supreme Court justice began a lifelong correspondence. You'll find a good babysitter, Ginsburg reassures Wiesenfeld in an early note. Sometimes it takes several tries to find the right person. He describes his job to her as “motherhood,” and then, catching himself as a “sexist” because he should have said “parenthood,” he confesses, “I feel as oppressed as any mother who stays home with a baby all day.” No “indolent” life for single dad Stephen Wiesenfeld.

The law, especially Social Security, was still riddled through with widows' preferences way beyond the surviving-parent benefit at issue in
Weinberger v. Wiesenfeld
. The most expensive benefit was that widows who did not have Social Security benefits could collect their spouse's benefits without proving they were dependent on the spouse. Widowers who did not have Social Security had to prove dependency on their dead wives. Since most men at the time worked and accumulated Social Security to the maximum allowed, they wouldn't have qualified for spousal benefits anyway. The only exception was that male public employees, who have their own pension plan separate from Social Security, could technically claim Social Security widowers' benefits under the precedents Ginsburg had established. Sooner or later, Ginsburg was going to
have to perform at the high court for a greedy widower who was getting, say, a teachers' pension and was not dependent on his dead wife's Social Security benefits, but who wanted to collect anyway. But for his sex, he would be eligible. In a trice after
Weinberger v. Wiesenfeld
, Leon Goldfarb, a public employee himself not eligible for Social Security, sued to collect a widower's benefit from his wife's contributions without proving he had depended on her. And he asked the ACLU for help.

Goldfarb had no minor children. He just wanted to be treated like a widow for Social Security purposes: Wiesenfeld without the “baby.” Ginsburg won it, but barely. The justices just hated the situation this small, clever woman had put them in, but five of them thought they were caught. Unless, as Justice Brennan opined at the conference, they wanted to overrule “
Weinberger
[
v. Wiesenfeld
] and
Frontiero
,” they had to give Goldfarb his windfall. “The Court has gone too far,” the newly appointed Justice John Paul Stevens thundered; he was “not content with the present state of the law, yet [felt] bound by cases already decided—[
Weinberger v.
]
Wiesenfeld
and
Frontiero
.” As the opinions circulated, Stevens voted for Ginsburg and then against and then again for her. Justice Stewart thought the distinctions in Social Security should have been left to the legislature but conceded that Ginsburg had driven the gender issue in the other direction. “If the slate were clean,” Powell grumbled, “I would certainly leave it to Congress . . . [but
Weinberger v.
]
Wiesenfeld
and
Frontiero
. . . certainly strongly support the decision [in Ginsburg's favor].” The government estimated a decision for Goldfarb would cost hundreds of millions of dollars, which would all go to men who did not need the money. The justices went back and forth for months trying to figure out an escape hatch. But brick by brick, one favorable word in one opinion at a time, Ginsburg had changed the law's presumptions about sex distinctions. In five short years, she had built a structure of women's equality using appealing litigants as much as she could. It is the ultimate testament to her architecture that now even unlikely occupants like Leon Goldfarb were sheltered by her work.

GIRLS

If treating widowers the same as widowed mothers was hard for the Court, equal protection for college girls and boys should have been easy. The rising generation of young females was changing at warp speed. The same 1974 term as
Weinberger v. Wiesenfeld
and the jury cases, the Court had heard a case,
Stanton v. Stanton
, from a divorcee in Utah who was trying to undo a divorce agreement that cut off child support for her eighteen-year-old daughter. Utah law held that girls did not need support because they were all grown up (and ready to marry) at age eighteen. Utah boys needed support until twenty-one, presumably so they could go to college. Preparing Justice Powell to address the case of unequal child support, Penny Clark asked her justice to “Pardon my outrage. This kind of assumption about behavioral differences between men and women, and especially the assumption that women do not have to support themselves, is at the heart of economic discrimination against women.” In 1975, without any help from Ginsburg, who was not involved in the case, the Court held the Utah law unconstitutional. Only Justice Rehnquist disagreed.

As she was preparing the hard work of representing Goldfarb in the term after
Stanton
, Ginsburg got wind of another girl case coming up without her careful stewardship. Girls in Oklahoma were allowed to drink 3.2% beer at eighteen, while guys had to wait until they were twenty-one. The Hoot and Holler drive-through supermarket sued.
Craig v. Boren
, as the near-beer case came to be called, should have been easy, too. The kinds of protective justifications for sex discrimination that dogged the widows' cases were
not at issue when young females were involved. Ginsburg thought the law was “ridiculous.” Justice Powell's clerk Christina Whitman thought the case was “silly.” But the case turned out to be much headier than the 3.2% subject matter predicted, because this time the state had a defense to justify discrimination: boys drive drunk a lot more than girls do. And technically the law discriminated against boys, who were hardly a victim class. How exactly did a law that treated young females as sober citizens harm them anyway? The local federal court upheld the Oklahoma law, and Ginsburg asked if she could help the beer drinkers' lawyer.

Ginsburg went a little easier on Craig's Oklahoma lawyer, Fred Gilbert, than on prior locals. She offered to take the friend of the Court role if he didn't want her to write his brief for him and disclaimed any intent to elbow him out of the fun of oral argument at the high court. The two civil rights lawyers engaged in a long-distance politeness contest, in which he hid behind the difficulty of brief writing at a distance and she conceded his point while continuing to try to write his brief from a distance. By the time they got to the third round of briefs, she was engaged in such tactics as sending him “the idea of an appropriate reply.” She actually arranged for oral argument in
Craig v. Boren
to take place before oral argument in her case,
Califano
v. Goldfarb
, which was, fortuitously, scheduled for the same day, October 5, 1976. He did a horrible job. Since she did not argue the Oklahoma case, the justices simply waited until Ginsburg stood up to argue her own case to ask her the questions they had left from the one before. No matter. Under her tutelage, Gilbert focused his efforts on getting the Court to recognize that it had in fact established a higher standard for laws that discriminated on the grounds of sex—maybe not as high as the barrier for laws based on race, but not where Ginsburg started in 1970 either.

And a palpably more searching review of sex-discrimination laws is exactly what she got from the “silly” near-beer case. The very unpersuasive statistical evidence the state of Oklahoma could muster about road safety failed to convince the Court that such an antiquated and “silly” law should make bad constitutional doctrine
in the area of sex discrimination. Brennan, the senior liberal, had at least seven votes—everyone but the conservative Rehnquist and Chief Justice Warren Burger—to strike it down. (Burger, newly converted to opposing sex equality, and Rehnquist continued to inveigh against creating
any
special standard for sex discrimination, proposing to roll back the clock to where Ginsburg stepped in,
Reed v. Reed
in 1970.) Brennan again assigned the opinion to himself.

And so, although he never got five votes to treat sex differences as harshly as race, Brennan continued to slowly raise the standard for laws that discriminate on grounds of sex. We know exactly how far Brennan pushed the envelope, because Powell's clerk Tyler Baker was on it like a heat-seeking missile. In a draft, Brennan proposes to rule that “To withstand constitutional challenge, previous cases establish that classifications by gender must serve
important
governmental objectives and must be substantially related to achievement of those objectives.” Wait a minute, Baker noted in a memo. Where did that “important” standard come from? That did not appear in any language they'd used before. But Brennan carried the day, simply by lining up Ruth Bader Ginsburg's great cases (and the non-ACLU case of the Utah teenager). One by one, he pointed out, the Court had rejected justifications for distinguishing between the sexes. In
Reed
it rejected administrative convenience, in
Frontiero
it rejected overbroad generalizations, in
Weinberger v. Wiesenfeld
it protected working women, and finally, in protecting
Stanton
's daughter in Utah, it rejected misconceptions about women's place in the home. If you added up all the moves the Court had ruled out, you'd see it was almost impossible for a law that discriminated on sex to be upheld. Somewhere along the line, the tiny advocate with the precise voice had raised the standard for constitutional scrutiny of laws that separate male from female. Powell wrote a separate opinion, concurring to say he didn't like it, but “candor compel[led] him to admit” that something like a legal change had been achieved.

Having set the hook in the now faraway case of Sally Reed, Ginsburg even won for the greedy widower in
Goldfarb
. Six
months after
Craig v. Boren
, she learned that the Court had handed down its opinion in her favor. Goldfarb was 5–4, much closer than her other victories, but widowers were always a harder sell to the Nine Old Men. Woo hoo, wrote the advocate to her favorite client, Stephen Wiesenfeld, on March 2, 1977. “Won Goldfarb 5–4! . . . Without the precedent in your case, we would never have achieved this success.”

IF MY FRIENDS COULD SEE ME NOW

A week after the decision in
Goldfarb
, Ginsburg appeared in
Time
magazine as one of “Ten Teachers Who Shape the Future,” alongside such luminaries as Harvard's legendary constitutional law guru Laurence Tribe, later of
Bush v. Gore
fame, and the man who suspended the death penalty, Anthony Amsterdam. She argued the cause of the Equal Rights Amendment in
The New York Times
. She testified before the United States Senate on the constitutionality of extending the ratification deadline for the ERA. She wrote (on the ERA) for
Cosmo
! Her daughter, Jane, having duly impressed Philip Kurland with her paper in his seminar at the U of C, made it to Harvard Law School, where she followed in her mother's footsteps onto the all-powerful
Harvard Law Review
. Even James, who had been the subject of annoying phone calls from school all those years, found computers a compelling subject and spent a happy summer on a student exchange to France. She and Marty celebrated their twenty-fifth wedding anniversary, “a rare thing these days,” she thought.

In 1977 she won a month's residency at the Rockefeller Foundation's famed Bellagio Center, in a castle perched high above Lake Como, Italy. She was supposed to write an article about the impact of her litigation on constitutional equality. “Heavenly,” she wrote to Stephen Wiesenfeld. Looking out over the towering pine trees and manicured lawns from the antiques-filled magisterial rooms, “It is,” she told her ACLU boss Aryeh Neier in a postcard he never expected to see, “a place not to work on a law review article but to write poetry to your lover.” But Ginsburg was always more than
a “mind in a vat” to the men who understood her. “She was an attractive woman,” Neier remembers fondly. “I could very well imagine a romantic attachment to her.”

While Ruth was hanging out with the movers and shakers on the op-ed page of
The
New York Times
and dreaming among the murmuring pines, people, including her devoted husband, were mobilizing to move her up to the next career plateau. Marty, whose tax prowess made him emminently employable, left his law firm to take up a job teaching tax at Columbia. So they were colleagues. He was also portable.

Once Jimmy Carter, a Democrat, was elected in 1976, he was committed to integrating the federal judiciary with racial minorities and women. And women's expectations went way up. The path was tortuous. First the Carter White House had to wrench the job of finding nominees from the members of the white and male United States Senate. Carter achieved this early in his term, creating citizens' nominating committees to suggest names for the all-important courts of appeals. Then the women's advocates on staff at the White House had to wrench access to the Carter committees from the clueless Justice Department, which would normally have had responsibility for justice-related matters such as nominees to the federal courts. The department, led by Attorney General Griffin Bell, whose longtime law firm, King & Spalding, was later successfully charged with illegal sex discrimination, was not a hotbed of diversity. And then, the newly enlightened White House had to fight off the American Bar Association, which still demanded fifteen years of legal experience to be labeled qualified to be a judge. That rolled the clock back to women who graduated law school before 1962, a group who could essentially be counted on one hand.

From the moment of Carter's election, Ginsburg's name started appearing in articles on the list of likely nominees. By 1978, Congress had voted to create dozens of new federal judgeships, and it looked like the logjam for female and minority appointees was about to be broken. Surely, of the handful of arguably qualified women to start integrating the federal bench, Ruth should have
been on everybody's list. Marty Ginsburg, until 1979 a very influential tax lawyer at the powerhouse New York law firm Weil, Gotshal & Manges, began a letter-writing campaign. His well-connected partner Ira Millstein wrote in support of Ruth to a close Carter connection at Griffin Bell's law firm. Unknown to her, a throwback to her original interest in foreign law brought her useful attention. She was chosen to be part of an eleven-person delegation from the American Bar Association to China, which she described as “a country of many millions without any lawyers.” Such trips were invaluable for the networking that is essential to ascending a high federal bench. Blessedly, she reports, as the lone woman she had her own room. “My colleagues were required to double, and constantly complained of each others' snoring.” Regardless of the banality of the conversation, her companion on that China trip, Chesterfield Smith, an immediate past president of the ABA, wrote to his successor, the
chairman
of Carter's Citizens' Commission for Appointments to the Second Circuit, Lawrence Walsh. “Without reservation,” Smith told Walsh, he was “confident that Ruth Bader Ginsburg would make a perfectly splendid appellate judge.”

Judge Patrick Higginbotham, the prodigiously talented, youngest sitting federal judge, got one of his pals to write directly to Michael Egan, the guy at Justice responsible for vetting the appointments. Marty used every occasion, including the not obvious occasion of the meeting of the American Law Institute Federal Income Tax Project, to buttonhole well-connected acquaintances. Not satisfied with his surrogates, Marty Ginsburg wrote to Associate Attorney General Michael Egan himself. If Egan needed a reference for Ruth, her husband wrote, his exceedingly well-connected friends would be “happy to supply it.” And in case the Justice Department did not have a full-enough file on her, Marty was sending Egan some newspaper and magazine articles.

Despite its origin in Carter's desire for more diversity, the Second Circuit commission produced an all-male list of potential nominees. When Carter filled all the vacancies on the Second Circuit with men, women's groups, which had organized robustly to
penetrate the judicial selection process, were very unhappy. And vociferous. Susan Ness, the well-connected Washington insider running the process for the National Women's Political Caucus, went public with her criticisms of the old boys' networks set up by Senators Javits and Moynihan of New York. Javits's panel, all men! Moynihan's panel, one woman, not a lawyer! And that from New York, which had the highest concentration of women lawyers in the country. Ness specifically called the Carter administration on the failure to appoint Ginsburg, who, as usual, was more circumspect, letting her aggressive feminist shock troops do the work. “A federal appellate judgeship is not in the cards for me, it seems,” she wrote to her chum William Spann, president of the ABA, in 1979, “—a disappointment, although in retrospect I suppose my expectations were unrealistic.”

By now Ginsburg, in her mid-forties, was a little fried. In a 1977 speech to the American Trial Lawyers Association, she advised future Supreme Court advocates to “feed the Court” what it needs, in the form of “chunks” of text in the brief “they can lift verbatim” into their opinions. “Dress conservatively,” she cautioned, and “prepare for their lack of manners”! Nor did brilliance excuse the rudeness: “No justice ever asked better or harder questions than my colleagues at Columbia did in the moot court” rehearsals they held beforehand; indeed, she told her audience, the justices make terribly annoying and mistaken statements from the bench. She shared with her colleagues a few of the worst examples, especially the reflexive sexist wisecracks that she deafened herself to ignore. The impolitic tone of the speech reflects her desire to be done with the work of persuading her intellectual inferiors to do the right thing.