Sisters in Law (4 page)

Cushman taught his young protégée that “our country was estranged from its most basic values.” Americans have a history, he wrote, of assuming that constitutional democracy is “the true way of life” and that all societies will, in the long run, come to recognize that. If this were true, even the most generous scheme of freedom of speech, press, and assembly would “involve no actual danger to the public security or the stability of our institutions.” But, Cushman continued, vested interests, in particular the vested interest of “our traditional capitalistic system of economic life,” were making “dangerous assaults” on “freedom of opinion and public discussion.” The would-be oppressors, Cushman accused, are after not merely Communists, but, under the guise of a threat to public security, they pursue “any reformer who proposes any change in our economic system.”

By 1948, Cushman was supervising the overtly anti-McCarthyite Studies in Civil Liberty, funded by the Rockefeller Foundation. As the red-hunting reached fever pitch, one of the series authors, Robert Carr, recommended that the prosecutorial House Un-American Activities Committee should be abolished for having “encouraged a widespread witch-hunting spirit both in government and in private life.”

Unlike Rathbun, Cushman left his protégée not only with a charge to make the world better but with a clear idea of
how
to make things better. He was an articulate spokesman for the value of traditional liberal freedom. A trained political scientist, he focused on a problem endemic to liberalism: how to protect the liberal regime of freedom against people, such as Communists, who use freedom to advance ideas that attack freedom itself. His solution was to be faithful to freedom even in the face of such an assault. Too often, he taught, people purported to be defending liberal democracy when they were really defending economic privilege. Life would be “better,” to Ruth's mentor, if people stopped
using the language of patriotism to defend their privileges and the less powerful were free to speak against them.

During her time with Cushman, the future justice learned that “there were brave lawyers who were standing up and defending people before the Senate Internal Security Committee and the House Un-American Activities Committee, and reminding legislators that this nation is great because we respect every person's right to think, speak and publish freely, without Big Brother government telling them what is the right way to think.” Inspired, she got “the notion that lawyers could earn a living at that business, but could also help make things a little better for their community, both local—state, national—and world.” She saw “a trade plus the ability to use your learning, your talent, to help make things a little better for others.”

The young Cornellian left Cushman's service with a broad commitment to liberal politics. A Jewish girl from Brooklyn in the 1940s, she's unlikely to have been raised with conservative beliefs as O'Connor was. But as she describes it, her encounter with Professor Cushman enabled her to put a frame around her beliefs and inspired her to a life in the law, not a common dream for a female in 1952. As liberalism has done throughout its long history, the theory ultimately empowered her to see the grievances of a disempowered group, in her case, women like herself. Moreover, her later interest in women's rights, while primary, was embedded in an overall commitment to equality for all disempowered people. Although she did not fall into the trap of taking up every cause that came along, when she got to the bench and began addressing cases of all sorts, she followed a coherent liberal line.

As a liberal, then, the young graduate had her principles. When she got a chance to apply them as a Supreme Court justice years later, she did not have to reinvent legal theory. She was not, like William Brennan or William Douglas—or Antonin Scalia—a cutting-edge legal thinker. Once she took offense at the status of women, she took the existing liberal jurisprudence of equality under law and deployed it in the interests of women. As she saw it, the arc of American history bent toward including all marginalized
groups into equal participation in national life. Her strength lay not in inventing overarching new approaches, but in her meticulous command of the game by the rules set down. It would be a masterful performance.

LAW SCHOOL AND LIFE

Inspired by Rathbun, Sandra too set off to study law. Starting her senior year, she managed to condense the three years of graduate study into two, graduating from Stanford Law School in 1952. Stanford was, for Sandra, a conservative decision. She'd been an undergraduate there, so this western institution did not require her to adjust to a strange culture. Yet, in choosing Stanford Law School, as in so many instances in the rest of her working life, Sandra Day's conservative decision put her at the cutting edge of social change.

Just three years before she arrived, Stanford Law School, a respectable, but not outstanding, institution, had hired a transformative dean, Carl Spaeth. Spaeth had credentials from teaching at Yale and Northwestern, and came from a high post at the Department of State. Before Spaeth, Stanford had no national law review, that peculiar institution where outstanding students judge and edit the scholarly writings of their teachers (and teachers from all over the academy) as well as learn to write legal articles themselves. By the time Stanford got its law review, just before Sandra arrived,
Harvard Law Review
, founded in 1887, had published definitive works on everything from the right to privacy to the meaning of the rule of law itself. All ambitious law students aspire to be selected for law review, a traditional stepping-stone to prestigious clerkships with prominent judges, lucrative and high-status careers. Prior to 1949, Stanford had never placed a single one of its students in the pinnacle of clerkships, a Supreme Court position. In 1949, just before Sandra arrived, Warren Christopher, later secretary of state, arrived from Stanford to clerk for Justice William O. Douglas. Stanford was on the move.

Young Sandra Day checked all the boxes at the newly rising
Stanford Law School. She was an editor of the law review; she was elected to the honorary society Order of the Coif. Popular, a fearless questioner in class, she seems never to have realized that being a woman would pose a problem for her as she sought to realize her potential (as her old mentor Rathbun would say). Although there were only four women in her class, and only two on the law review, there are no stories from her Stanford years of faculty hazing and rude questions about taking up a place a man would want.

Everybody loved Sandra, particularly John O'Connor III, the dashing, handsome son of a San Francisco physician. John, a year behind his future wife, spent an evening with her in the romantic pursuit of proofreading and citation checking for a law review article. Having the bright idea that a beer would lighten their labors, they took the draft to Dinah's Shack. And they never dated anyone else.

Coming out of Stanford Law School, then, the young rancher's daughter had no reason to suspect that being a woman was a problem. Her early life had prepared her to expect to do anything as long as she, no excuses, did the work. Embedded in an isolated family life and educated in the rising waters of the postwar West, she was raised outside of society's prescribed hierarchy—a sort of wild child.

As graduation loomed, seeing law firm jobs posted on the bulletin board at school, she started to phone around.

—This is Sandra Day. I saw your job posting on the Stanford bulletin board, and I'd like to apply.

—Well, we didn't mean women. We don't hire
women
.

After forty or so such exchanges, the young lawyer made a signature move—she rattled her network, and asked a college friend to arrange an interview with the friend's dad, a big deal at the California law firm Gibson, Dunn & Crutcher.

“This firm,” her friend's father told her, “has never hired a woman lawyer. I don't see the day when we will. . . . Our clients wouldn't stand for it.

“Well, now,” he continued, seeing her disappointment, “would you like me to explore whether we could find a place for you here as a legal secretary?”

“No, I don't think so. Thank you.”

As O'Connor has told it a thousand times since, even after forty other rejections on the phone, she was still shocked. She was going to have a long uphill journey to get to the place she had thought so blithely was hers by right.

Just as O'Connor got the bad news about the status of women in the legal profession, Ginsburg started down the same road. She was going to go to Harvard, where her husband was already a year ahead. Although Ruth selected her life partner, Martin Ginsburg, long before either went to law school, like the O'Connors, their professional ambitions meshed. Martin Ginsburg was the only young man she dated, she always said, who cared that she had a brain. (Of course, she was only seventeen when she met him.) Fast friends from their first blind date at Cornell, they became engaged in two years and arranged to marry when Ruth graduated, a year after Marty got out. Fortunately, Ruth, who was first in her class at Cornell, had no trouble getting into Harvard Law School too. But in good '50s fashion the future feminist leader put her legal education on hold when Marty was drafted out of Harvard, and the young married couple headed off to Fort Sill, Oklahoma.

Ruth got a full blast of the illiberal world outside of Cornell University when she took a modest job at the local Social Security office near the base. When her supervisor discovered she was pregnant, he said, “Well, you can't fly to the training session [for the promised job promotion] pregnant. So you can't be promoted.” The ever-observant Ginsburg noted that another woman, who kept her pregnancy a secret, did not suffer a similar fate. The de facto demotion cost the young clerk real money. But of course she didn't sue. In 1954 the Supreme Court told the nation that states could not segregate the races. But nothing the government supervisor did to
women
was considered illegal in 1955. Ginsburg gave birth to her first child, a daughter, Jane, that year.

She did make strides on the home front, though. When Marty,
who had been a chemistry major at Cornell, sat down to a meal prepared by his new bride early in their long married life, he immediately concluded that he had to spend some of his time mastering the art of French cooking. Someone had given the young couple a copy of
The Escoffier Cookbook
, and Martin Ginsburg began making every dish in the several-hundred-pages-long tome one meal at a time.

Marty turned into a legendary amateur chef. His spouses' dinners for the justices of the Supreme Court evoked such warm memories that when he died the Court published a cookbook in his memory (
Chef Supreme
). He also made sure his birdlike wife actually consumed something once in a while, hovering over her to be sure she ate. Ruth's kitchen saga says much about her overall strategy of obliquely offering the narrowest target in making social change. “The children,” Ruth always contended, “banished” her from the stovetop after tasting some of her offerings. Ruth Bader Ginsburg didn't make a thing out of it. She just didn't learn to cook. Sometimes it pays to be a little hungry.

A few months after Jane was born, the Ginsburgs returned to Harvard Law School, Marty to resume his second year and Ruth as a lowly 1L. Unlike the upstart western Stanford University, Harvard had its gender hierarchy firmly in place. The only ladies' room at Harvard was in the basement of one of the two classroom buildings.

Erwin Griswold gave a dinner party to find out how the women justified taking a place a man would otherwise have had. Following a well-established tradition, each of the women students was escorted by a male faculty member. Ginsburg's date was the constitutional law scholar Herbert Wechsler, who, she thought, “looked more like God than any man I ever saw.” It was an ironic pairing. When he squired the young lady law student to the dean's dinner, Harvard's godlike Wechsler was about to become the point man in the scholarly resistance to the Supreme Court's 1954 desegregation decision. His rabid criticism of that case made him the father of harmfully retrograde attacks on every subsequent move to equality: extending the Fourteenth Amendment to women, abortion rights,
gay marriage. Unknown to her, Ruth Bader Ginsburg's life work would have been a lot easier if her dinner companion had choked on his hors d'oeuvres. In due course, Griswold called on Ginsburg to justify her presence in the law school. To her lifelong unending astonishment, the future feminist icon answered the dean, “it's important for wives to understand their husband's work.” Harvard concluded its hostile treatment when, a couple of years later, Ruth Ginsburg, who had predictably gotten good enough grades for law review, asked Harvard Law School to grant her a degree if she finished her third year satisfactorily at Columbia. She wanted to keep her family together while Marty started practicing law in New York. They said no.

Years later, the law school announced that students in “significant relationships” could carry their Harvard degree after transfer. Marty, ever the advocate for his talented wife, immediately shot off a letter to the school newspaper. “In 1958,” Marty wrote, “the administration's response was uncomplicated. Ruth was not asked if she was ‘seriously involved' with spouse or child or both. No one inquired as to the likelihood of divorce on the one hand, or marital stability and even additional children on the other. No one speculated as to the quality of third year legal education at Columbia. It was all irrelevant. To bestow the crowning accolade of a Harvard degree, Harvard required the third year be spent at Harvard. Career blighted at an early age, Ruth transferred her affections to Columbia and satisfactorily completed the third year. After reading that transfer by reason of marriage now is viewed more kindly in Cambridge, I asked Ruth if she planned to trade in her Columbia degree for a Harvard degree. She just smiled.”