Sisters in Law (7 page)

Within months of starting the research for her seminar, Professor Ginsburg was writing to the members of the relevant congressional committees urging them to pass the suffrage-era Equal Rights Amendment. If passed, the ERA, forbidding the government to discriminate on grounds of sex, would have made it close to impossible for any law to distinguish between male and female. Like the laws against race discrimination, any law treating men and women differently would have to serve a compelling government interest. Practically, almost no law ever passes that test.

Ginsburg first framed her letters to Congress as coming from her and from the students in her seminar. Soon, she stepped out of her cocoon of collective action and began asserting the arguments simply as coming from herself. The letters from the lady professor triggered hilarious efforts to address her. They called her Professor, Mrs., and the then newly conceived “Ms.” One Rep. Charles Sandman addressed her as “M's.” (Ginsburg famously refused to take the bait on how she should be addressed then or in her many appearances in the Supreme Court.) But as one of the few female law professors in the country, she was a natural advocate for the new legal order.

The task was great and the resources scant. Had the Equal Rights Amendment passed, Ginsburg would have taken a very different path from the long march she was now undertaking. While she waited and hoped, she knew she had to try to use the existing Constitution to free women from the sex-role stereotypes enshrined in law. From her perch on the Rutgers faculty, she started working on women's rights cases with her local New Jersey ACLU.

The problem with her campaign for constitutional equality was that all the equality language in the Constitution was rooted in the American struggle with slavery and racial inequality. By the early '70s, activists had succeeded in expanding the enforcement of equality beyond race—to protect aliens, and religious and ethnic
minorities, for example. But by the time Ginsburg started her quest in 1970, any hope of getting women the same protections from discrimination as blacks ran right into the powerful backlash that had formed after the wave of social change we call the '60s. Just as women took their place in the long march of American equality, the society—and the Court—were getting more conservative. It would be an exquisite task.

EVE'S RIB

No one was better suited for the exquisite task of radical politics than the diminutive, immaculate, soft-spoken thirty-seven-year-old denizen of the Upper East Side. By 1970, Brooklyn's Kiki Bader was living in a luxurious coop apartment at Sixty-Ninth Street and Lexington Avenue, in a building designed by Emery Roth and Sons, the same firm that produced some of New York's landmark apartments and hotels. Although she later dined out on the tale of how her son's school always bothered her alone until she reminded them that James actually had “two parents,” most bourgeois New York parents would have killed to be annoyed by the elite Dalton School. Martin Ginsburg, well into his career as a renowned tax lawyer by then, was not only a good cook, he could bring the bacon home.

In a scene right out of Hepburn and Tracy's battle-of-the-sexes movie
Adam's Rib
, Professor Ginsburg was working in her home office in their upscale apartment one night in 1970 when Marty waltzed into her sanctum with a tax advance sheet. Greeted with an impatient “no time for tax cases,” Marty persevered. This one she had to read.

Marty's case involved a lifelong bachelor, Charles Moritz, the sole support of his eighty-nine-year-old widowed mother. He tried to collect the $600 deduction the tax code provided for caretaking costs while he was out earning a living as a medical editor. The Internal Revenue Code, having no truck with lifelong bachelors and their mothers, allowed only the dependency deduction for caretaking women, widowers, and the unlucky married man whose wife is “incapacitated.”

The line separated men from women, full stop. There were no distracting issues here, unless the court was willing to say that it was unnatural for men, rather than women, to care for their mothers. From Ruth Ginsburg's strategic point of view, it did not matter whether the plaintiff was male or female. The only issue was whether, in 1970, the government could treat one sex unequally simply because . . . it could. Civil rights lawyers are always looking for the perfect case, one that squarely presents the injustice of the distinctions, with no distracting side issues and with a very appealing plaintiff to represent the cause. The Ginsburgs decided Charles Moritz was the plaintiff for them. (When Moritz first got their call, he thought someone was playing a joke. Why would fancy New York lawyers be bothered with him?) Unlike
Adam's Rib
, where the defense attorney played by Katharine Hepburn was at war with her prosecutor husband (Spencer Tracy) in the case against Judy Holliday's bloodthirsty wife, in the Moritz case the Ginsburgs were on the same side. Moritz was, of course, ecstatic to have them. Since he had lost before the tax court, the next step in his case was to appeal the decision to the local federal court of appeals in Colorado, where he lived. The Ginsburgs wrote the papers to start the appeal and began working on the brief. When it was done they sent some copies around to lawyers they thought might be interested.

CARD-CARRYING MEMBERS OF THE ACLU

The liberal NYU professor Norman Dorsen was sitting in his faculty office at the Law School when the Ginsburgs' brief arrived. Dorsen, who was an important general counsel at the national office of the American Civil Liberties Union, thought it was a great job. “Marty doing the tax side and Ruth making the equal protection argument, I wrote her and said it was an absolutely brilliant piece of work.” Dorsen—and the ACLU—mattered. That's why the Ginsburgs sent him their brief. They were looking for help with the thousands of dollars of expenses they knew they would incur representing Charles Moritz in the federal court of appeals.

By 1970, anyone who was anyone in social change was banging on the door of the ACLU. Ruth and Marty Ginsburg, however, weren't just anyone. At Rutgers, Ruth was already starting to take sex-discrimination cases for the New Jersey ACLU. One day that fall, she opened her office door at Rutgers and who should be standing there but Mel Wulf, the dining hall waiter at her old summer camp, Camp Che-Na-Wah. Wulf, the legal director of the national ACLU, was visiting Ruth's former student and present colleague Frank Askin, who was already a member of the ACLU board. After the customary chat about Swedish civil procedure, Ginsburg told Wulf she was doing a sex-discrimination case for the New Jersey ACLU. He was not impressed with her little local litigation, although he later called this the moment he “plucked Ruth Bader Ginsburg from obscurity.” As usual with Ginsburg, it was more like she did it herself (backwards and in high heels). She sent Wulf a follow-up letter with an appeal for help with the Moritz case. Getting no response, Ruth deployed her second arrow—a clever, musically themed letter to Wulf about the value of the Moritz case, in the form of a play on Gilbert and Sullivan, familiar from their camp productions.

Her interest in Wulf intensified when she read that the ACLU was already in charge of
Reed v. Reed
, the first constitutional sex-discrimination case to go to the Supreme Court since 1961. The Reeds, separated and then divorced, were in court because the state of Idaho had a law preferring men over women as the administrators of dead people's estates. When the Reeds' son died, Cecil Reed was appointed executor, over the mother, Sally. Sally Reed's sense of injustice may have been fueled by the tragic circumstances of her son's death. A judge had ordered Sally to turn her son over to his father under the then-standard doctrine that a child old enough to need education about the world should be transferred to his father, once the “tender years” spent with his mother were over. Right after she relinquished him to his father, the boy had killed himself. Now his father was going to administer their son's estate.

Ginsburg asked to see the papers Mel Wulf was drafting to appeal
Reed v. Reed
to the high court. Her reading was that Wulf
wasn't moving aggressively enough to change the legal landscape for women. She wrote to Wulf again and suggested that perhaps he could use a woman's touch with his brief to the Supreme Court on behalf of women's rights. Teaching a course and trolling for relevant cases, skinny, bookish Ruth Bader Ginsburg took a look at
Reed v. Reed
and decided to stand on that lever and move the world.

But first a word or two about that world.

EVERYTHING YOU ALWAYS WANTED TO KNOW ABOUT THE CONSTITUTION BUT WERE AFRAID TO ASK

The Constitution, c.
1970
: No Girls Allowed

There's a reason Ginsburg was in favor of women having a constitutional amendment of their own, the Equal Rights Amendment. The Fourteenth Amendment to the United States Constitution, which mandates the equal protection of the laws, like all of the amendments passed after the Civil War, was interpreted to apply to discrimination on the grounds of race (or servitude). If a law discriminated on the basis of race it was suspect, and had to be justified by a compelling state interest. After all, that's why the Civil War was fought.

Until Ruth Bader Ginsburg started her crusade, trying to get constitutional protection against discrimination for any human person other than a black person was almost impossible. Legislatures “discriminate” all the time in the ordinary course of making laws. Driving fifty miles an hour, illegal; forty, legal. Voters at twenty-one, disenfranchised at twenty; employers of more than fifty covered by the labor law, those employing fewer than fifty not covered. Judges and scholars worried that once these legislative decisions to divide the population could be challenged in court, where would the challenges stop? It's one thing to say schools couldn't be segregated into black and white, but demanding the legislature to justify all classifications would lead to anarchy.

Almost four decades before the reborn feminist movement, the
Supreme Court had said that the standard for review of most laws would be whether they are rational. Only a tiny category of laws would be looked at hard, what the Court called a strict-scrutiny standard of review. Those were laws that discriminate on race or alienage and laws that impact the explicit protections of the Bill of Rights, such as freedom of speech and religion. Otherwise, all the law required was that the legislature have some rational basis for distinguishing between its citizens, including its male and female citizens. Rational basis was the lowest standard of judicial review of legislation.

When Ruth Bader Ginsburg took pen to hand for the mother who wanted a fair shot at administering her dead son's estate, the Court had repeatedly turned back pleas to stop the states from treating women differently from men. Just ten years before, in
Hoyt v. Florida
, the Court had said it was okay to discourage women from serving on juries. Between 1961 and 1971, however, lay the earthquake we call the feminist movement. Now seminars full of newly enrolled female law students around the country were turning up examples of how the discriminatory laws hurt women. They wanted the equal protection of the laws applied to them, too. Could the feminist law professor Ruth Bader Ginsburg persuade the Court to apply the race-based Civil War amendments to the altered landscape of sex?

Even Liberal Lawyers Are Conservative

Paradoxically, the American legal system is as conservative as the American Revolution was revolutionary. Despite the revolution, America inherited its legal system from the mother ship, England. In our mutual system of common law, which developed over centuries, deciding one case at a time, courts can make law. But because courts are usually not elected, when they make common law, they are reluctant to make it seem as though they are legislating from the bench. They pretend they're just applying what the prior cases required. The federal courts, which mostly interpret the U.S. Constitution, are also not elected. The Constitution is so old, and the language so broad, that when a court lays down new
rules, it appears to be just making stuff up. So the courts try really hard to convince themselves that what they are doing is just discovering what the Constitution meant.

Asking a court, conservative by nature and history, to make the leap from protecting the constitutional beneficiaries of the Civil War to applying equality to their wives was a big jump. At that time, Justice William Brennan, the liberal judge Ginsburg was counting on, wouldn't even hire a female student to be his law clerk.

In 1969 the “liberal”
Harvard Law Review
published a 150-page article on equal protection, the very constitutional doctrine Ginsburg was invoking. The word “sex,” as in “sex discrimination,” appears four times—three to distinguish it from genuinely suspect categories such as race and once in a footnote to ask whether “experience teaches that the biological differences between the sexes are often related to performance.” The brainiacs at Harvard then offered their ultimate argument against constitutional equality for women: Who could imagine gender integration in the military?

Ginsburg had her work cut out for her.

WOMEN'S LIB AT THE LIBERTIES UNION

The American Civil Liberties Union invoked by Ginsburg in 1971 was almost as white and male as the Arizona legislature O'Connor sought to join. Of the ACLU National Board, which had the authority to dictate policy, 91 percent was male. The leaders of both staff and board were all white, male, Ivy League–educated lawyers: Executive Director Aryeh Neier (New York, Cornell J.D.), Legal Director Melvin Wulf (New York, Columbia J.D.), General Counsel Osmond Fraenkel (New York, Columbia J.D.), Marvin Karpatkin (New York, Yale J.D.), and Norman Dorsen (New York, Harvard J.D.).

Until just a few months before Wulf ran into Ginsburg at Rutgers, the ACLU was not even on record as supporting the Equal Rights Amendment. Board members with ties to organized labor had long opposed the equality provision because it threatened the
labor laws that gave special protections to women. More regrettable was the attitude reflected in the
Harvard Law Review
article, that women's rights simply weren't worth more than a footnote. The Congress on Racial Equality's Floyd McKissick, who served on the ACLU Equality Committee, was forthright: CORE would work on black male power. Women could wait until “tomorrow.” As women began demanding legal equality more loudly in the early '70s, a lot of liberal men decided that the civil liberty of equality, like the Civil War amendments, really should apply only to race. Dorothy Kenyon and Pauli Murray, the two intrepid women who had been trying to liberalize the ACLU, in some cases for decades, were starting to have “tantrums.”

Relief came from an unlikely source. In the wake of the feminist movement, the women from ACLU chapters out in the hinterlands formed a woman's caucus. They threatened to quit, called the organization on its founding principles, and started asking for surveys of everybody's salaries in the ACLU itself. Fortunately for them, the ACLU had made the fundamental error of holding biennial conferences with representatives from all the affiliates gathered together with the overwhelmingly white male national board. In June 1970 the women made their move, presenting the conference with a resolution to make women's rights a priority. With one dissenting vote, the board did a 180-degree turn and endorsed the Equal Rights Amendment. And they elected Kentucky's Suzy Post, a Berkeley grad and an old activist in the racial civil rights movement, to the board.

Abigail Adams once predicted that if the Framers left women out of the new republic they were founding, the “ladies” would “foment a rebellion.” Here it was.

While Ginsburg was trying to get Mel Wulf's attention to let her in on
Reed v. Reed
in the fall of 1970, Suzy Post went to the next level. Why, she and her caucus asked in a fiery letter, were there not more women in a position to decide whatever issue came along? Why was the ACLU National Board 91 percent male? The women began to use dirty words like “quota.”

Just then, Ginsburg and the caucus women caught a break from
two men at the top of the ACLU. The newly elected executive director, Aryeh Neier, adopted a strategy he had developed at his former post, the New York Civil Liberties Union, which involved identifying a problem and putting a civil liberties frame around it. One such problem was the society assigning groups to enclaves of inequality. Neier and the other NYCLUers included women high on the list of groups with a history of unequal treatment, now making a claim to equality as a matter of civil rights. At the ACLU, the volunteer general counsel Norman Dorsen, also a law professor, readily endorsed the concept of equality as a civil liberties issue and assigned a student to make the argument for the ERA. Under their leadership, the ACLU weighed in on the feminist revolution.