Sisters in Law (29 page)

The justice-as-legislator theory seems to be supported by the paper trail in
Harris
. Although Court watchers often scoured the archival material made available by justices who opened their papers to the public, it seems no one ever looked at the paper trail in
Harris
, a decision that mostly mattered to women. Yet in O'Connor's letter to Blackmun refusing to equate sex harassment with race, there was O'Connor saying outright that she thought the racial-harassment standard—that everyone in the workplace should have
an equal chance to succeed—might be the right rule, but that she would wait, nonetheless, until “the time” for the Court to express the right outcome in a decision. The only thing that happened between O'Connor's decision to wait and the Court issuing the right opinion was that the lower courts wrestled unsuccessfully with what
Harris
actually required. Without comment, O'Connor joined the
Oncale
opinion. For reasons never expressed in opinion or in public, sometime between 1993 and 1998, O'Connor apparently decided the country was ready for the simple, equitable rule.

THE RELATIONSHIP WITH O'CONNOR WAS REALLY THE IMPORTANT ONE

Deliberately or coincidentally, the two women were more effective together than separately. Although Ginsburg pointed the way for the Court in
Harris
, she took great pains not to cross her predecessor. For a dozen years before she joined the Supreme Court, Ginsburg had followed O'Connor's career on the bench. Her files contain many articles about the FWOTSC. She had raved about O'Connor's opinion in the nursing school case, in which O'Connor ordered the Mississippi University for Women to admit men.

Hugh Baxter, back as Ginsburg's Supreme Court clerk after his first Ginsburg clerkship, quickly learned that O'Connor was a really important relationship to her. He never saw them going out together and it was not that the newer judge expected to influence O'Connor, but Ginsburg openly respected O'Connor as a fellow pioneer. Baxter thinks Ginsburg had a sense that, after she came, life was going to be different for O'Connor, and Ginsburg wanted it to be in a good way. Ginsburg was concerned about her relationship with the chief and with other justices, but, Baxter says, “It was really clear to me that the relationship with O'Connor was the most important one.”

For her part, from 1981 on, O'Connor had taken more clerks from Ginsburg's chambers than from any other feeder judge on all the courts below. As one of them, Joan Greco, puts it, “I interviewed with Justice O'Connor for the position because Judge
Ginsburg recommended me to her. The reason there was this group of clerks that clerked for both of them is that Justice O'Connor put so much weight on Judge Ginsburg's recommendations.” And when Ginsburg arrived at the Court that first summer, it was O'Connor who was her guide, just as Powell had been for O'Connor all those years before.

Justice Scalia would have been the obvious choice for Ginsburg to turn to—the Scalias and the Ginsburgs had been friends for years. Scalia was quoted, famously, in the run-up to Ginsburg's selection, as saying he'd pick her for his companion if consigned to a desert island. But O'Connor was “glad to have another woman on the Court.” O'Connor's delight that her first companion was so skilled and competent was, for her, gushing. In one of her letters to Barry Goldwater that first two-woman term, O'Connor gratuitously drops into the otherwise completely social missive that “Justice Ginsburg is a very capable and knowledgeable Justice.”

The Ginsburgs were not new to Washington, and Ginsburg was not new to judging federal questions. So she did not need the kind of heavy lifting that O'Connor got from Lewis Powell. But, when O'Connor paid the traditional call on the rookie, she told her to change the lighting in her chambers to a gentler glow. And from the beginning she did what she could to make sure Ginsburg succeeded. Ginsburg's first assignment was not the traditional “dog” case, where the Court is unanimous and the opinion uncomplicated. Instead, Chief Justice Rehnquist handed her a contentious 6–3 decision on one of the most complex federal statutes. “Sandra,” Ginsburg asked her predecessor plaintively, “how can he do this to me?” O'Connor (who was on the other side in the decision) made her typical flat-tire response. “Just do it.” Oh, and do it before he makes the next set of assignments, she advised. O'Connor knew—and it was one of the many unwritten rules of the institution that newbies must learn somewhere—that Chief Justice Rehnquist would not give Ginsburg another assignment until she had turned in the one she had. “Typical,” Ginsburg remembered years later, of her predecessor's no-nonsense guidance. She called O'Connor “the most helpful big sister anyone could have.” O'Connor welcomed
her sister's delivery of her first opinion with a note: “This is your first opinion for the Court, it is a fine one, I look forward to many more.”

A JUSTICE OF HER PEERS

Justice Ginsburg had reason to expect that she'd be writing one of those fine future opinions very soon.
J.E.B. v. Alabama
, a case challenging one of the few remaining instances of sex discrimination in jury service, came before the Court in her very first term.

Ginsburg's expectation of getting the assignment in
J.E.B.
was understandable. In the 1970s, she had been the architect of the legal strategy that got women equal access to jury service. On its face, the new jury case was just the latest in a long line of cases that applied the rules about racial exclusion to women. As part of the century-long battle over black jurors, prosecutors had been using their right to challenge jurors in any case for no reason at all to keep juries white. These attacks, called “peremptory challenges,” have a long tradition of being the vehicle for a “lawyer's instinct” about who is likely to help or hurt their client. In 1985, the Court put a stop to this practice. In
J.E.B.
, the state used its peremptory challenges to keep the jury one sex. So
J.E.B.
was, on its face, just a mop-up operation to establish that the rules applying to race in jury service also applied to sex.

The state peremptorily struck the guys off the jury, because the case involved an order of paternity and child support for a baby the defendant had supposedly fathered. Predictably, the defendant struck as many women as he could, but the heavily female jury roster still produced a distaff gathering, and the all-female jury found J.E.B. to be the father and ordered child support. J.E.B. appealed, arguing that the state's use of peremptory challenges to eliminate one gender—in this case, men—from the jury was unconstitutional.

If it weren't for Ginsburg and her ilk, J.E.B., defendant in a paternity case, wouldn't have even had a problem with female jurors. Alabama didn't let the little darlings serve until women sued in
1966 in the original feminist campaign to integrate juries. The fact that the particular discrimination was leveled against male jurors in J.E.B.'s case did not matter. Whether feminists such as Catharine MacKinnon liked it or not, discrimination against men was now well accepted as a proxy for sex discrimination generally.

But sex is not always like race. The state asserted, and it presented some social-science research to support the claim, that the state had reason other than pure sex discrimination to strike all the guys. The state surmised that in a paternity case male jurors were a better bet for the defendant. It wasn't their sex per se that the state cared about; men's gender was a proxy for men being more likely to rule for the defendant. So the state knocked the men out of the jury.

Alabama may have had a good argument, but the justices voted 6–3 at conference to forbid the use of peremptory challenges to eliminate members of either sex. Since the chief was in the dissent, after conference, the decision about who should write the opinion fell to the senior in the liberal majority, Harry Blackmun. Giving the nod to Ginsburg, the author of the law of women's equality on juries, would have seemed the obvious move. But instead he kept it for himself.

Blackmun's tone deafness vis-à-vis his female colleagues was well known. Although he denied it at the time, the opening of his papers revealed that he resented Justice O'Connor from the get-go. After O'Connor was selected, he groused about her overnight fame and her energetic embrace of the Washington social scene. His clerks report that he did a wicked imitation of his female colleague's distinctive loud, nasal diction. Blackmun had actually never thought that much of Ginsburg either; when the legendary Supreme Court litigator first appeared, he gave her a C+ on her oral argument.

In fairness, Blackmun was not irrational to resist the love fest around O'Connor's appointment. He anticipated that the anti-abortion Reagan administration would appoint someone to undo
Roe v. Wade
. O'Connor's assertion during her confirmation process that she considered the procedure personally “abhorrent” did not
reassure him. He knew his own beloved daughter would have had an abortion when confronted with an out-of-wedlock pregnancy before
Roe
, had the process been legal. That O'Connor adopted, whole cloth, the Reagan solicitor general's suggested cutback on
Roe
in the first abortion case of her tenure,
Akron v. Akron Center for Reproductive Health
, confirmed his worst fears.

It was one thing to take heat on abortion from O'Connor, an emissary from the Reagan Revolution, but how much more unjust was the same criticism coming from the lion of the women's movement, Ruth Bader Ginsburg! As Blackmun was well aware, Ginsburg began her criticism of his opinion and methodology in
Roe
in 1984 in a speech shortly after the
Akron
decision and then expanded on the theme in 1993 with great fanfare in her Madison Lecture. Although Ginsburg clearly supported the outcome in
Roe
, Blackmun was unhappy with her for the criticism. When she came on the Court, Ginsburg knew he was unhappy with her. In his papers he called her “pushy,” which some people took as an unpleasant coded phrase.

Yet he actually produced a perfectly serviceable draft opinion in
J.E.B
. In a virtual recitation of Ginsburg's litigation career, he suggested that sex-based peremptory challenges are just as bad as the racial kind already struck down. The cost of excluding citizens from juries is high, the sexual stereotypes hoary. Blackmun emphasized the citizen's right
to be a juror
, which is the point Ginsburg was after all those years ago in her jury discrimination cases. He even included a footnote reminding the Court that it had reserved the question of whether sex discrimination is always the same as race, citing Ginsburg's concurrence in
Harris
. Within a day she wrote to tell him she would join his opinion and to thank him for the shout-out in the footnote. (The court reporter Linda Greenhouse called the footnote a “bouquet” to his new colleague.)

Ginsburg would have preferred power to the posies. She quite reasonably thought the
J.E.B.
opinion should have been hers. It must have been so galling, after finally crossing the bench to the other side, to still have to beg Harry Blackmun to get the opinion she wanted. But, Ginsburg is nothing if not disciplined. So, as she
did with so many recalcitrant local lawyers at the ACLU all those years ago—she tried to write the thing for him. The exchanges that ensued give a delicious glimpse into the mano a mano that often engages the justices behind their exquisitely civilized trappings of robes, velvet curtains, ritual handshakes, and boring collective lunches on argument day.

In the sweetest possible way, Ginsburg wrote, she just had “a few suggestions for you to consider, take or leave.” First, in listing the authority for not shaping juries by sex, why don't you cite
Duren v. Missouri
? Of course, she didn't say anything about
Duren
being her signature case. She instead reminded Blackmun that one of
his
former clerks worked on the brief for the petitioner, Duren. “Would it not be appropriate to cite the decision that administered the coup de grâce?” she asked. “Check the cite,” Blackmun noted on his copy of the letter, as if the legendarily careful Ginsburg would miscite a case. Then, she asked, why are you citing
Schlesinger v. Ballard
for the proposition that laws can't rest on archaic generalizations about gender?
Schlesinger
, she reminds him, actually held that women could be excluded from the military, relying on an archaic generalization about gender. So although it has good language in it, why not cite—and here she appends a laundry list of cases that actually were decided in women's favor. Blackmun puts one of his signature exclamation points beside this suggestion, and then the number “6,” probably reflecting his displeasure that Ginsburg offered him six better authorities for his statements. With her keen sense of history, she next suggested that he refer to the fact that Alabama had to get sued before it recognized women for its juries in 1966. Finally, she corrected his description of the holding in
Weinberger v. Wiesenfeld
as striking down part of the Social Security Act, which the decision decidedly did not do. Instead of calling him (or his clerk) on a technical error, she wrote, “It was critical to Stephen Wiesenfeld that the Court did not ‘strike down' the provision. Because the provision survived, shorn of the sex classification, he was able to get child-in-care benefits.”

Ginsburg was new, and Blackmun was famously thin-skinned.
Despite her best efforts, he was bound to see that she thought she would have been a vastly better choice to write the opinion in
J.E.B.
Blackmun's files do not include the first draft of his letter back to Ginsburg. But it must have been a doozy, because his clerk, Michelle Alexander, suggested that he might be “a bit more diplomatic.” Why don't you say, Alexander advised, that Ginsburg's suggestions are primarily matters of style usually left to the author of the opinion. A week later, he wrote back to Ginsburg that he was disinclined to drop
Schlesinger v. Ballard
. After all, “the quotations are apt.” As to the rest, he wrote, adopting Michelle Alexander's suggestion, such matters are usually a matter of authorial style. But, in a classic male-to-female move, Blackmun treated Ginsburg's letter as being an emotional event. Since Ginsburg “appear[s] to be
uncomfortable
[emphasis added] with some details” he had “tried to accommodate” her. And so he did, adding
Duren
and the Alabama litigation history and correcting the description of
Weinberger v. Wiesenfeld
.