Sisters in Law (38 page)

Six weeks after the decision, in August 2014, Justice Ginsburg gave an interview to Katie Couric. She decried the inability of most of her male colleagues to understand the lives of women well enough to see the importance of contraception. She hoped
they would evolve, under the benign influence of their “wives and daughters.”

A few short weeks later, Ginsburg took the opportunity to reiterate her profound disagreement with Justice Kennedy on the subject of women: “What concerned me [in
Gonzales v. Carhart
, the “partial birth abortion” case] about the Court's attitude, they were looking at the woman as not really an adult individual,” she told Couric. “The opinion said that the woman would live to regret her choice. That was not anything this Court should have thought or said. Adult women are able to make decisions about their own lives' course no less than men are. So, yes, I thought in
Carhart
the Court was
way
out of line. It was a new form of ‘Big Brother must protect the woman against her own weakness and immature misjudgment.'” The author of the opinion in
Carhart
was none other than Justice Anthony Kennedy.

After her raft of public appearances in the summer of 2014, pundits speculated that she was trying to use public shaming on Justice Kennedy, who is notoriously conscious of his public image. And it may work.

The Internet troubadour Jonathan Mann sings it:

Chorus: OH the Court I FEAR has ventured into a minefield

Of slut-shaming geezers and religious extremism.

Ginsburg would never call them geezers, but at the end of the day, you can hear her warbling along with Mann's last line:

Oh, but one thing's CLEAR this fight isn't over we gotta stand together for what we know is ri-i-ight.

What is right? In the summer of 2014, as the calls for her to step down intensified in face of the imminent Republican takeover of the Senate, she abandoned her stance of political neutrality on the subject of retirement. Even before the midterm election, she asked in her interview with
Elle
magazine, “Who do you think
President Obama could appoint at this very day, given the boundaries that we have?” she asked. “If I resign any time this year, he could not successfully appoint anyone I would like to see in the court. [The Senate Democrats] took off the filibuster for lower federal court appointments, but it remains for this court. So anybody who thinks that if I step down, Obama could appoint someone like me, they're misguided.” Any Republican might have been enough for the pragmatic Sandra Day O'Connor, when she contemplated retirement on election night in 2000, but the theorist Ruth Bader Ginsburg wouldn't give up her seat even for any Democrat. She was waiting for someone just like her.

On November 4, 2014, the Republicans captured the Senate.

On November 25, 2014, Ginsburg began experiencing chest pains during her workout with her personal trainer. Doctors implanted a stent in her artery the next day; four days later, she took her customary seat on the bench for oral argument.

And so the story of Justices Ginsburg and O'Connor comes full circle. In most versions of the story, Sandra Day O'Connor is the icon and the cultural engine of change. A WASPy country club Republican with a passion for low taxes and states' rights, she was the only kind of woman who could have carried Ronald Reagan's rash promise of a female justice all the way to the high court. When push came to shove, she was loyal to the Republicans who put her in her high place. With her stiff-upper-lip rendition of the model minority, she was the perfect First.

She certainly made it easier for her sister in law, Justice Ginsburg. O'Connor was determined not to be the last, she said. After her arrival in what Justice Stevens described as their “trouble”-free integration, when President Clinton nominated Ginsburg, no one on the Supreme Court would have dared to utter a peep.

When Ginsburg first hit the public scene, she, the brainy Jew from Brooklyn with the ACLU card, was not an obvious candidate for the symbol of digestible social change. Her contribution was more in the arena of razor-sharp legal analysis and a farsighted strategy that would bring about social change, as Thurgood Marshall did, step by step. Until the Court had gone too far to turn back the clock.

As O'Connor had made it easier for her, she had made it easier for Elena Kagan, the first female dean at Harvard Law School, the first woman to serve as solicitor general, and the fourth WOTSC. Appointed in 2011 and now the youngest woman on the Supreme Court, she credits Ginsburg, her oldest colleague, with making her
career possible: “As a litigator and then as a judge she changed the face of American antidiscrimination law.” The barriers lifted, and Kagan rose just as traditional liberal feminism would have predicted.

Then something unexpected happened. With the gift of the new media, Ginsburg herself became an icon. A half century after she took the helm at the ACLU, Ginsburg, with her minuscule frame, her classical taste in music, her subtly expensive outfits, her long, happy marriage, her children and grandchildren, seemed the embodiment of conventionality—until she opened her mouth. To the generation of young women hungry for reassurance about the normalcy of female power, as the Court increasingly began turning back the clock, such an unlikely ally was a gift from heaven. “That she was still so radical!” Knizhnik crows. “After all these years.”

Less visibly, the story took a final turn. As the Court began to roll the clock backward, the long-retired Justice O'Connor, whose uninspiring prose and uninformative analysis made her seem like the furthest thing from a big legal thinker, began to seem, in retrospect, like a gift from the gods of jurisprudence. Sounding so conservative and framing her mildly pro-woman decisions time after time as protective of authority—employers, school administrators—she represented the farthest women could hope to go in light of the irresistible conservative resurgence of the late twentieth and early twenty-first centuries. From the first women's rights case of her tenure to the last case she decided in 2006, she made the law for women more liberal or at least preserved the gains of the past. Public colleges are not segregated by sex, nowhere in the United States is abortion automatically criminal, and the Civil Rights Act prohibits employers from asking their employees to come down to the motel and negotiate their raise.

By now, both sisters in law are icons and both are beacons of feminist jurisprudence.

MAKING ALL THE DIFFERENCE

Are women justices different? Are women different? Society has been debating this issue probably since the apes fell from the trees.
The modern feminist movement started by attacking the difference, which had been used to keep women from serving on juries or owning their own bars, practicing law in firms, making equal pay, and serving their country. But as the formal barriers began to fall, the debate revived almost immediately with claims that women's voices were different, but just as good, because of the experience of subordination.

Ginsburg always “fudged” the question, she admitted. Her basic liberal principles were sufficient for most of the decisions she made. But from the editors of the
Harvard Law Review
equal-protection issue circa 1969 to the hilarity at oral argument in Savanna Redding's school search case decades later, when even liberal men seemed blind to women's lives, she was there to represent their existence.

O'Connor was explicit in her displeasure with the suggestion that she judged in a different voice. But she did. The law is not different for men and for women, and Justice O'Connor was not morally different from her peers. But she had her life experience as a woman. She worked for no salary in order to get a law job at all at the outset of her career. In ordering the integration of Mississippi's nursing school, right after she ascended the bench, she noted that the almost all-female nursing profession didn't claim such great wages. A fancy law firm offered her a secretarial job. Years later, she voted to take the case of a young woman turned down by King & Spalding right away rather than wait for a split in the courts below. With the richness of her experiences as a woman lawyer coming up when society was arrayed against her, O'Connor's record on women's issues is by far the most liberal of all the bodies of law she created in her long career and much more liberal than the other Reagan appointees, Scalia and Kennedy.

A WISE LATINA WOMAN

Sooner or later, someone was going to admit the obvious. It turned out to be then Circuit Judge Sonia Sotomayor, daughter of immigrants from Puerto Rico. “I would hope,” she said in a speech in
2001, “that a wise Latina woman with the richness of her experiences, would more often than not reach a better conclusion than a white male who hasn't lived that life.” Her critics made that statement into a rope to hang her with during her confirmation hearings, until, at last, she repudiated her own words, calling it “a rhetorical flourish that fell flat.”

Although she took the statement back, Justice Sotomayor quickly turned out to be the change she was seeking. Four years after she took her seat on the Supreme Court, Sotomayor wrote the story of her experience, specifically of growing up as a poor Puerto Rican immigrant child in the Bronx. The book was a bestseller, and Sotomayor became a genuine celebrity. In 2014 she wrote a long and impassioned dissent from her white male colleague John Roberts's opinion allowing a state to ban the use of affirmative action. A wise Latina judge, she explained how she would rule differently than that white man: “Race matters to a young woman's sense of self when she states her hometown, and then is pressed, ‘No, where are you really from?' regardless of how many generations her family has been in the country,” she wrote. “Race matters to a young person addressed by a stranger in a foreign language, which he does not understand because only English was spoken at home.”

When, during the flap over Sotomayor's confirmation, an interviewer asked Ginsburg if the results might be different in discrimination cases if more women sat on the Supreme Court, Ginsburg gave this answer: “I think for the most part, yes. I would suspect that, because the women will relate to their own experiences.”

David Kuhn: you saved my life. Thanks to Becky Sweren, Jessie Borkan, and all the good people at Kuhn Projects. Thanks again to best editor and dearest friend Gail Winston at HarperCollins and to all the good people there—Jonathan Burnham, Emily Cunningham. And to Sarah Blustain, the mother of it all. Stephen Wagley again did yeoman service on the citation front. I had research help from Jessica Anne Gresko and Robert Wyatt. No one writes about women and judging without a big boost from the incomparable Lynn Hecht Schafran, and the University of Chicago's Geoffrey Stone provided stimulation as well as information. Thanks to all the clerks who chatted, overtly and covertly. I never had such a smart set of interview subjects. Walking pals Loretta McCarthy, Jill Faber, and Gloria Feldt listened patiently and helped every way they could. Phoenix pal Paul Eckstein knew everyone. Washington and Lee's Ann and Kent Massie put me up and put up with me. Powell papers' John Jacobs was incredibly helpful. I get by with a little help from my friends. My daughter, Sarah Shapiro, herself a lawyer, reminded me that a new generation of women had come to the Court, and gave me an ending.

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Note: Final bound volumes for the U.S. Supreme Court's United States Reports exist only through volume 557, covering cases decided on or before October 2, 2009. Cases decided after that date are published without a page number.

INTRODUCTION: RUFFLED COLLARS

  
xi  somber black robe: William Peacock, “Friday Frills: The Jabot (or Neck Doily),”
Findlaw Supreme Court
, February 7, 2014,
http://blogs.findlaw.com/supreme_court/
2014
/
02
/friday-frills-the-jabot-or-neck-doily.html.

  
xi  
United States v. Virginia
: 518 U.S. 515 (1996), http://www.oyez.org/cases/1990-1999/1995/1995_94_1941.

xii  “This should be Ruth's,” she said: Nina Totenberg, interview with the author, September 6, 2013. Nina Totenberg, Introduction to
The Legacy of Ruth Bader Ginsburg
, edited by Scott Dodson (New York: Cambridge University Press, 2015), p. 18 of draft; Totenberg apparently means Justice Stevens, who would have been the assigning justice if Rehnquist had voted for VMI. Stevens has no memory of the conversation (Justice John Paul Stevens, interview with author, July 21, 2014). Rehnquist ultimately concurred with the majority, so it may have been Justice Rehnquist whom O'Connor approached.

xiii  and nodded: Linda Greenhouse, “From the High Court, a Voice Quite Distinctly a Woman's,”
New York Times
, May 26, 1999; Lyle Denniston, “Justice's Crusade: ‘We the People' Includes Women—Ginsburg Led Military-School Ruling,”
Seattle Times
, June 27, 1996,
http://community.seattletimes.
nwsource.com/archive/?date=
1996
0627
&slug=
2336534.

xiii  “everything changes”: Gail Collins's excellent history of the modern women's movement is
When Everything Changed: The Amazing Journey of American Women from
1960
to the Present
(Boston: Little, Brown, 2009).

  
xv Girl of the Golden West: Aryeh Neier, interview with the author, July 8, 2013.

  
xv know who she was: Mike Sacks, “Women Supreme Court Justices Celebrate 30 Years Since Court's First Female,”
Huffington Post
, April 11, 2012,
http://
www.huffingtonpost.com/
2012
/
04
/
11
/supreme-court-women-justices_n_
1419183
.html.

xv “she never held us up”: Justice John Paul Stevens, interview with the author, July 21, 2014.

xvi Associations of Women Judges: “Sandra Day O'Connor—Member,”
Iraq Study Group Report
, Future of the Book,
http://www.futureofthebook.org/iraqreport/sandra-day-oconnor/index.html;
“O'Connor is a member of the American Bar Association, the State Bar of Arizona, the State Bar of California, the Maricopa County Bar Association, the Arizona Judges' Association, the
National Association of Women Judges
, and the Arizona Women Lawyers' Association.”

xvi “into a judicial question”: Alexis de Tocqueville,
Democracy in America
, chapter 16, “Causes Which Mitigate the Tyranny of the Majority in the United States,”
http://xroads.virginia.edu/~Hyper/DETOC/
1
_ch
16
.htm.

xvii whole web of discriminatory laws at once: Roberta W. Francis, “The History Behind the Equal Rights Amendment,”
Equal Rights Amendment
(website),
http://www.equalrightsamendment.org/history.htm.

xviii “bra and her wedding ring”: Joan Biskupic,
Sandra Day O'Connor: How the First Woman on the Supreme Court Became Its Most Influential Justice
(New York: Harper Perennial, 2006), 4 and prologue 9.

xviii believing it: Harriet Rabb, interview with the author, October 15, 2013.

xix firstborn child: Biskupic,
Sandra Day O'Connor
, 21.

xix when she graduated in 1957: Sheldon M. Novick, “What Makes a Great Judge, His Reasoning or His Vision?”
Los Angeles Times
, April 22, 1994,
http://articles.latimes.com/
1994
-
05
-
22
/books/bk-
60553
_
1
_learned-hand/
2.

xix most fun talk she'd ever delivered: Brian Baxter, “Justice O'Connor Dings Gibson Dunn on Letterman Show,”
Am Law Daily
(blog), June 24, 2009,
http://amlawdaily.typepad.com/amlawdaily/
2009
/
06
/oconnor-on-letterman.html.

xix it had been a
joke
: Ira E. Stoll, “Ginsburg Blasts Harvard Law; Past, Present Deans Defend School,”
Harvard Crimson
, July 23, 1993,
http://www.thecrimson.com/article/
1993
/
7
/
23
/ginsburg-blasts-harvard-law-pin-testimony/.

  
xx demands of the Junior League: Biskupic,
Sandra Day O'Connor
, 34.

xxi first year on the Court in 1981: Ibid., 119.

xxi “worst mistake I ever made”: Totenberg interview, September 6, 2013.

xxi to save him: Mel Wulf, interview with the author, June 20, 2013.

xxii men in power have always done: Ginsburg, letter to Philip Kurland, March 20, 1975, Ginsburg Archive, Library of Congress, Box 16.

xxii should be spanked: Michael Murphy, “Conservative Pioneer Became an Outcast,”
Arizona Republic
, May 31, 1998,
http://archive.azcentral.com/specials/special
25
/articles/
0531
goldwater
2
.html.

xxii viewed generically: Catherine Ho, “Justice Ginsburg Happy to No Longer Be Confused with Sandra Day O'Connor,”
Washington Post
, December 17, 2013,
http://www.washingtonpost.com/business/capitalbusiness/justice-ginsburg-happy-to-no-longer-be-confused-with-sandra-day-oconnor/
201
3
/
12
/
17
/d
8
ba
9
c
5
c-
6731
-
11
e
3
-a
0
b
9
-
249
bbb
34602
c_story.html.

xxii wrong name: Lawrence S. Wrightsman,
Oral Arguments Before the Supreme Court: An Empirical Approach
(New York: Oxford University Press, 2008), 45.

xxiii “than mouse”: Jeffrey Rosen, “The Book of Ruth,”
The New Republic
, August 2, 1993,
http://www.newrepublic.com/article/politics/the-book-ruth.

CHAPTER
1
: COUNTRY GIRL, CITY KID

   
3 Growing up on a ranch: The story of O'Connor's early years was beautifully remembered in her memoir with her brother, Sandra Day O'Connor and Alan Day,
Lazy B: Growing Up on a Cattle Ranch in the American Southwest
(New York: Random House, 2002), and in Joan Biskupic's invaluable biography,
Sandra Day O'Connor
, esp. 7–21.

   
3 always “a lady”: “Sandra Day O'Connor,” biography.com, http://www.biography.com/people/sandra-day-oconnor-9426834?page=1#early-life-and-career.

   
4 “head down the path together”: Biskupic,
Sandra Day O'Connor
, 21.

   
4 free-market variety: Ibid., 13–14.

   
4 “we survived”: C-Span, Influential Women of the West, January 14, 2015,
http://www.c-span.org/video/?
323615
-
1
/discussion-influential-women-west.

   
4 flat tire: The story appears, essentially exactly like this, in
Lazy B
, 240–41.

   
5 “gorgeous clothes”: Biskupic,
Sandra Day O'Connor
, 23.

   
5 “We were blown away”: Ibid., 23.

   
5 for only one year: Harriet Haskell, interview with Phoenix History Project, January 31, 1980.

   
5 calls herself a “cowgirl”: “Sandra Day O'Connor Pt. 2,”
The Daily Show
, March 3, 2009,
http://thedailyshow.cc.com/video-playlists/rldluj/daily-show-
14030
/
8
twc
8
o.

   
6 read to her: Ruth Bader Ginsburg, interview, Academy of Achievement, August 17, 2010,
http://www.achievement.org/autodoc/page/gin
0
int-
3.

   
6 distinguishing herself: Assistant Principal Rita Menkes, interview with the author, October 2013.

   
6 doing her homework: Phil Schatz, “Judicial Profile: Hon. Ruth Bader Ginsburg,”
Federal Lawyer
, May 2010, available at
http://www.wandslaw.com/phils-book-reviews/
90
-judicial-profile-hon-ruth-bader-ginsberg.html.

   
7 “as much as sons”: Malvina Halberstam, “Ruth Bader Ginsburg,”
Encyclopedia
, Jewish Women's Archive,
http://jwa.org/encyclopedia/article/ginsburg-ruth-bader;
“Ginsburg Supreme Court Nomination,” C-SPAN, June 14, 1993,
http://www.c-spanvideo.org/program/
42908
-
1.

   
7 scholarship help: Nichola D. Gutgold,
The Rhetoric of Supreme Court Women: From Obstacles to Options
(Lanham, Md.: Lexington Books, 2012), 48.

   
7 little knotted scarf: Richard H. Penner,
Cornell University
(Charleston, S.C.: Arcadia Publishing, 2013).

   
7 of human life: “The Reality of Ideas,”
Stanford Review
, May 29, 2009,
http://stanfordreview.org/article/reality-ideas/.

   
7 “What is my destination?”: Harry J. Rathbun, audio recording, 1955, Stanford Digital Repository,
http://purl.stanford.edu/qq
737
wt
2311.

   
7 was mesmerized: Charles Lane, “Courting O'Connor: Why the Chief Justice Isn't the Chief Justice,”
Washington Post
, July 4, 2004, http://www.washingtonpost.com/wp-dyn/articles/A16332-2004Jun29_3.html.

   
8 bright and curious youngster: Biskupic,
Sandra Day O'Connor
, 23–24.

   
8 an unknown world: Rathbun.

   
8 “nature of reality”: Ibid.

   
8 “new religion”: Steven M. Gelber and Martin L. Cook,
Saving the Earth:
The History of a Middle-Class Millenarian Movement
(Berkeley: University of California Press, 1990).

   
8 “it would blow away”: Steven M. Gelber, interview with the author, April 2013.

   
9 “philosophy of life”: Adam Gorlick, “Former Justice Reflects on How Law Professor Helped Shape Her Life Philosophy,”
Stanford Report
, April 23, 2008,
http://news.stanford.edu/news/
2
008
/april
30
/sandra-
043008
.html.

   
9 public lawn (allowed): Angie A. Welborn,
The Law of Church and State: Selected Opinions of Justice O'Connor
, Congressional Research Service, Report for Congress, July 20, 2005, http://congressionalresearch.com/RS22201/document.php?study=The+Law+of+Church+and+State+Selected+Opinions+of+Justice+OConnor.

   
9 “ineffable gift”: Aryeh Neier, interview with the author, July 11, 2013.

  
10
“Civil Liberty After the War”: Robert Cushman, “Civil Liberty After the War,”
American Political Science Review
38 (February 1944): 12–13.

  
10 “in government and in private life”: Guenter Lewy,
The Cause That Failed: Communism in American Political Life
(New York: Oxford University Press, 1990), 99.

  
11 “a little better for others”: Ruth Bader Ginsburg, interview, Academy of Achievement, August 17, 2010,
http://www.achievement.org/autodoc/print
member/gin
0
int-
1.

  
11 a cutting-edge legal thinker: Geoffrey Stone, interview with the author, September 12, 2013.

  
12 participation in national life:
The Nomination of Ruth Bader Ginsburg, to Be Associate Justice of the Supreme Court of the United States: Hearings Before the S. Comm. on the Judiciary,
103d Cong. 127 (1993), Statement of Ruth Bader Ginsburg,
http://www.loc.gov/law/find/nominations/ginsburg/hearing.pdf.

  
12 to study law: Biskupic,
Sandra Day O'Connor
, 24. Rathbun considered law as the expression of an orderly society: Harry J. Rathbun, audio recording, 1955, Stanford Digital Repository,
http://purl.stanford.edu/qq
737
wt
2311.