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I’m Ruth, Not Sandra

I’m Ruth, Not Sandra

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Celia Amster Bader, played a role. Bader’s niece Cousin Beth, née Amster, was married to a good

friend of Senator Daniel Patrick Moynihan of New York, one Stephen Hess. He and Moynihan had

served together in the Nixon White House and Hess was then at a powerful centrist think tank in D.C.,

the Brookings Institution. Beth’s husband sprang into action, reaching out to Senator Moynihan, who

turned into Ruth’s best advocate. Although they had never met, Moynihan, the brainy ex-Harvard

professor, knew Ginsburg, the brainy ex-Columbia professor, from her writings and her advocacy. In

some precincts, that’s as good as long acquaintance, and so it was with Moynihan. It was her views

on judicial respect for the legislature, he said in an interview, that attracted him to her. Of course, it

didn’t hurt that she was born in Brooklyn.

As the spring wore on, White House Counsel Bernard Nussbaum, who was a lead player in

picking a nominee, received an unexpected phone call from one of his pals at NYU Law School.

Would Nussbaum and his wife like to join him at a dinner for six at the posh Inn at Little Washington

in the nearby Virginia countryside? The other couple would be . . . the caller’s friends, Marty and

Ruth Ginsburg. “Of course I knew exactly what people were doing,” Nussbaum says. But the evening

was delightful. “I really saw her close up. All these things have an impact. I was impressed on a

personal basis.”

Moynihan flew from Washington to New York City with the president on Air Force One, and he

used the opportunity to lobby for his candidate. But Ginsburg was a bookish appeals court judge, just

the kind of appointment Clinton said he did not want, a “footnote” type rather than a political type,

who could sway the other justices his way. She was also sixty, and the White House staff was hoping

for someone younger, who would outlast the youthful Clarence Thomas.

Then opposition to Ginsburg surfaced, and from an unanticipated place: the left. Ginsburg’s entire

approach was based on treating men and women as legally similar and equal. Since her feminist

awakening in 1970, other players had arisen who challenged that strategy for helping women. Some

said, for example, that women were different but still entitled to social initiatives that would

empower them despite, or even because of, their differences.

It should not have been totally surprising; revolutions have been consuming their young since the

Bastille. Feminism, heavily anchored in colleges and universities, was particularly susceptible to

idealistic theorizing. In fact, just as Ruth was leaving the ACLU for the comfortable precincts of the

life-tenured judiciary in the early 1980s, the two new difference-based movements, each of which

profoundly challenged her life’s work, gained real traction.

Both took aim at Ginsburg’s organizing principle that men and women potentially aspire to the

same avenues to human flourishing and so should be allowed the same options. Catharine

MacKinnon, whose work played such an important role in the courts’ recognizing an action for sexual

harassment, asserted that men dominated women in ways unique to women. Ginsburg’s equality

argument was fueled by the denial that men and women could be assumed to be constitutively

different, often called the “anti-stereotype principle.” MacKinnon rejected this argument. Even when

there was no similarly situated man, she contended, women should not be required to overcome the

legacy of centuries of oppression and resemble men in order to claim the goods of society. The

policies and practices that made women’s lives worse—such as not supporting childbirth leave—

were illegal. Starting in the late ’80s, she attacked Ginsburg’s decade of achievement of simple

equality head-on. Most of what Ginsburg did, she argued, was to take away the few advantages

women had—widow’s preferences, for example. And she represented male plaintiffs! Women were



different, MacKinnon asserted. The question should not be Ginsburg’s question—are they treated

differently from comparable men. The question is: Are they treated badly in ways that men, given

their physiology, history, and social power, could or would never experience?

Women are different, the Harvard psychologist Carol Gilligan agreed in the second challenge to

Ginsburg’s work. They even think differently. When confronted with a moral problem like whether or

not to have an abortion, women think about the effect of their actions on their web of relationships,

not just on themselves. They reason, Gilligan concluded, not better or worse than men, but in a

different voice. Although Gilligan—not a lawyer—never took on Ginsburg directly the way

MacKinnon did, her arguments implied that women in decision-making positions might act quite

differently from similarly situated men. If the different voice is still valuable, then Gilligan’s claims,

like MacKinnon’s, are much more ambitious than Ginsburg’s simple plea not to stereotype women in

advance as different. Ginsburg’s lifelong crusade—which came to be known as “equality feminism,”

so radical in its time, did not last ten years when it was challenged by the call to recognize women’s

differences without punishing women for them. “Difference feminism,” as the new strands of thought

were named, was more demanding than Ginsburg’s theory. But it was also more dangerous. Whether

the difference is in greater vulnerability or a divergent moral outlook, it is a slippery gradient from

difference to discrimination.

Although Ginsburg was on the bench when much of this new thinking surfaced, she wasn’t totally

silenced politically. She was uncharacteristically open about her unhappiness with MacKinnon. After

hearing MacKinnon speak on pornography at Columbia Law School in the late ’70s, Ginsburg, who

remained loyal to conventional liberal free speech, confided to a friend, “That woman has bad

karma.” In 1988 she even took MacKinnon on directly: “the ACLU Women’s Rights Project was not

so bold as to essay articulation of a complete theoretical world in which men did not define women’s

place.” Her litigation, rather, was intended to “unsettle women’s separate spheres.” She was more

annoyed by MacKinnon’s ingratitude for her and the other pioneers’ efforts than by the substance of

MacKinnon’s more ambitious claims to protection for women disadvantaged by history and culture.

Next to MacKinnon’s place on the program, she noted, “arrogant.”

She was more circumspect with the different-voice theory. When confronted with such claims, she

admitted in May 1991, “I abstain or fudge . . . [finding] no reliable indicator of distinctly male or

female thinking.” Coincidentally, by 1991, the sound of the different voice had even reached the ears

of the less academically inclined Justice Sandra Day O’Connor. O’Connor was clearly nettled by the

suggestion that her own decisions could be understood as an example of, as one benighted law

professor essayed, “Judging in a Different Voice.” O’Connor devoted a substantial portion of her

1991 Madison Lecture series at NYU to decrying these suggestions as a dangerous throwback to the

era when women were judged as too delicate to participate in rough activities like practicing law and

voting: “Ironically, the move to ask again the question whether women are different merely by virtue

of being women recalls the old myths we have struggled to put behind us. Undaunted by the historical

resonances, however, more and more writers have suggested that women practice law differently than

men. One author has even concluded that my opinions differ in a peculiarly feminine way from those

of my colleagues.” A few months after O’Connor’s lecture, Circuit judge Ruth Bader Ginsburg

received a copy of O’Connor’s remarks, faxed from the Supreme Court chambers.

The following year, Judge Ginsburg also chose the vehicle of the Madison Lecture to dissent from

a feminist article of faith, the abortion decision, Roe v. Wade. Ginsburg repeated and amplified the



critique she had first articulated in 1984. She was obviously very concerned about the political

friction generated by the abortion issue, especially compared with the relatively smooth debut of the

equality revolution she had orchestrated in the ’70s. “A less encompassing Roe, one that merely

struck down the extreme Texas law and went no further on that day,” she asserted, “might have served

to reduce rather than to fuel controversy.” Abortion is not like school segregation, she asserts,

because women are men’s wives, daughters, and sisters. Politics could work better where people are

intermingled. Once women saw the injustice of their inequality, they could educate their oppressors,

literally, at “home.” Maybe the men would not then have kept trying to oppress their wives, sisters,

and daughters with criminal abortion laws. The racial minority, she argues, was, by contrast,

hopelessly divided from the majority and could not bring about further change in any way but through

the courts.

In retrospect, the best thinking is that Ginsburg was wrong about the backlash. Women, unlike

racial minorities, were deeply divided on the subject of their rights. Their distribution in the

households of their oppressors gave them a chance not only to educate but equally to sell out the

movement. Religion would play a powerful role in women’s thinking. The backlash against abortion

rights was well under way when the Court decided Roe v. Wade . And nothing the Court could have

done would have staved off the resistance to abortion rights in particular or women’s rights in

general.

Right or wrong, however, the timing of her remarks could not have been worse. The week she

unloaded on Roe v. Wade in the very public forum of the Madison Lecture, Justice Byron White

announced his retirement, leaving President Clinton with a slot to fill. Ginsburg’s name was on most

of the long, early lists. White House temperature-takers learned, however, that there was resistance to

her candidacy in “certain women’s groups,” the National Abortion Rights Action League’s influential

Kate Michelman among them. It’s not that radical academic feminist theorizers are serious players in

national political circles, but the competition for a Supreme Court seat is so tight that any opposition

or problem at all is disproportionately threatening to the nominee. Soon Ginsburg stopped being the

subject of speculative leaks. Other names took the fore.

Within weeks of the cooling on Ginsburg, Stanford Law Professor Barbara Babcock’s phone went

off at seven a.m. Martin Ginsburg was calling. “Those East Coasters,” Babcock said. “They are up

and it is way early here but what they want is so important to them, they call anyway.” Babcock was

one of a handful of prominent feminist law professors who could reassure the White House that Ruth

was a legend in the women’s movement. “He was absolutely sure I would go to bat for Ruth,”

Babcock recalls. “And, actually, he was right.” Babcock reached out to her former student Cheryl

Mills, deputy White House counsel, to speak for Ginsburg. Marty’s minions ginned up so many

letters, no one at the White House could read them all. The presidents of Stanford and Columbia

wrote. The female Democratic governor of Texas, Ann Richards—a newly minted celebrity from her

showstopping performance at the 1992 Democratic National Convention—wrote. That rare bird, the

African-American Republican stalwart, and Gerald Ford’s transportation secretary, William

Coleman wrote. However, Clinton yearned for Cuomo and still leaned toward Stephen Breyer.

Then it emerged that the refined and aristocratic Judge Breyer (or his titled British wife, the

Honourable Joanna Freda Hare Breyer or, technically, both) had failed to pay Social Security taxes

for their household help, the same issue that had brought down two of Clinton’s cabinet appointments.

Although some in the White House thought Breyer was the perfect candidate to face down the “nanny



tax” troops, in 1993, Clinton actually wasn’t eager for another incident. (Ginsburg, who had many

employees over her long working life, and her tax lawyer husband were squeaky clean.)

And so Ginsburg’s name bobbed up again. Many observers credit Attorney General Janet Reno

(who, one would think, Clinton might have consulted) with asking the president about Ginsburg.

Nussbaum thought she would be a good selection because of her historic role at the ACLU. Somehow

—sources credit Marty Ginsburg with digging out the quote—Clinton learned that Ginsburg’s bête

noire Dean Erwin Griswold of Harvard had called her the Thurgood Marshall of the women’s

movement. She sounded good, Clinton admitted to Bernie Nussbaum, but the president had heard she

was a “cold fish.” “Well,” said Nussbaum, “did I mention that I had dinner with her three weeks ago?

Her husband called, and I knew what they were doing, but I had dinner with her and she’s actually

very nice.”

So, Nussbaum says, he called Ginsburg to come to the White House. “Oh, no,” the judge said.

“We’re just back from Vermont, and I have informal clothes on.” It was Sunday, after all. “Not to

worry,” Nussbaum assured her. “The president will be coming back from playing golf! I’m sure you

don’t have to worry.” He went to the Watergate to pick her up. She had on perfectly respectable

slacks, Nussbaum says, and some kind of a top. Just not what you’d ideally choose to go to the White

House in.

When they arrived at the Residence in the White House, standing at the end of a long hallway, the

president emerged, impeccably dressed in a navy blue suit, shirt and tie. That Sunday, Bill Clinton

decided on church rather than golf. “Bernie, what have you done to me?” she asked. “Don’t worry,”

he answered the famously impeccable dresser from the D.C. Circuit. “Everything is going to be fine.”

An hour and a half later, the president called to tell Nussbaum they were finished talking and he

could take Ginsburg back to the Watergate.

When Nussbaum circled back to the White House, Clinton said he’d made his choice. The two

former law professors had talked mostly about her children and other kinds of personal things,

nothing serious. “I’ll call her after the basketball game,” which was about to start, Clinton blithely

announced. Nothing Nussbaum could say would get him to act sooner. But knowing that Ginsburg

must be in purgatory, Nussbaum called her himself. He couldn’t tell her she’d been chosen, but he

said what he could. “Ruth,” he said, “I don’t know what time you go to bed normally, but don’t turn in

early tonight.”

And he says he heard her begin to cry.

PLAY BALL



The next day the tall president and the judge who did not reach his shoulder appeared in the Rose

Garden for the announcement. Ginsburg had on a natty blue coat dress with a big blue ribbon adorning

her customary ponytail. She thanked many people. She thanked the women’s movement and the racial

movement from which it sprang. Finally, she remembered her mother and said she hoped she’d be all

that her mother would have been had she lived in an age when women can aspire and achieve and

daughters are cherished as much as sons.

Once nominated, “there was no chance, zero, that she would fail to be confirmed,” says Clinton’s

advisor Joel Klein, who had the job of shepherding her through the process. She had racked up a

relatively centrist record on the D.C. Circuit, with decisions tough on crime and sometimes in favor

of business. Republicans had already greeted the appointment with praise. And, as usual, her calm



and precise demeanor at the introduction was universally acclaimed. But Ruth Bader Ginsburg was

obsessed. “She prepared for those hearings as if it was going to be 51–49,” Klein recalls. She took to

phoning him at all hours of the day or night. What if they ask this? What if they ask that?

Since the Supreme Court candidate Robert Bork told the Senate about his legal philosophy and

went down in flames in 1987, all the players in the Supreme Court confirmation business have

understood that the rule is to say nothing. Or at least give the smallest possible answers you can get

away with. Judge Bork’s experience gave rise to a verb, “borking,” for killing a nominee by letting

him expand upon his weirdly marginal beliefs. Ever since, administrations have instructed their

nominees to plead the confirmation equivalent of the Fifth Amendment: I respectfully refuse to answer

on the grounds that it might come up in a case that might come before me. “No one ever lost by saying

nothing,” Klein remembers.

Joel Klein tried, but she gave her minders fits. On July 14, the White House counsel Ron Klain

wrote to Clinton’s advisor David Gergen that he expected trouble in the hearings. “She has an instinct

for defending some rather extreme liberal views” when asked about the ACLU, Klain said. “She also

relishes defending the ACLU as an institution, and its importance in American society.” And she takes

forever to answer. And she nitpicks the questions. Don’t tell her what we want her to do, though,

Klain continued. She does not see her interests as the same as ours.

As it turned out, she was quite circumspect about her judicial views in the hearings themselves.

But despite her unexpected compliance, her confirmation hearings actually tell a lot about her. For

one thing, it quickly became clear—as a T-shirt given to her by the National Association of Women

Judges would later say—“I’m Ruth, not Sandra.” (The judges also gave O’Connor the companion T,

“I’m Sandra, not Ruth.”) The Second WOTSC sounded a lot more liberal than her sister in law. And

on stuff that matters.

In the 1987 affirmative action case Johnson v. Santa Clara County, O’Connor had given Justice

Brennan fits, insisting that an employer with an affirmative action plan must admit that it previously

probably violated the Civil Rights Act. (Brennan had the votes, so O’Connor’s was only a

concurrence, but still.) When asked what she thought about that test for affirmative action, Ginsburg

agreed with Brennan: “Sometimes it would be better for society if we didn’t push people to the wall

and make them say, yes, I was a discriminator,” she testified. “In place of a knock-down-drag-out

fight, it might be better to pursue voluntary action, always taking into account that there is a

countervailing interest. . . .” Ginsburg shows a willingness to push private institutions such as

employers to take up the burden of making the workplace better.

She also thought the harsh restrictions on women in the new abortion order since Casey were

inconsistent with abortion rights laid down in the earlier cases: “So I must say yes, the . . . decisions

are in tension, and I expect that the tension is going to be resolved sooner or later.” In a less guarded

moment in her Madison Lecture, she had already expressed her opinion of the plurality opinion that

sustained the onerous restrictions upheld in Casey: “those Justices did not closely consider the plight

of women without means to overcome the restrictions” when they accepted provisions of the

Pennsylvania law that clearly violated Roe v. Wade.

While disagreeing with O’Connor on the substance of particular decisions, she also claimed

O’Connor as a model on the big question of constitutional interpretation in general. Insofar as she had

an overarching concept of the Constitution, O’Connor embraced a kind of moderate social analysis in

deciding cases that made a claim for new rights. While not eager to overturn precedent, she was



willing to consider whether the social concept of rights in a particular area had changed. She thought

the Court had some obligation to honor people’s expectations of how they would be able to live their

lives. She signaled this open-mindedness early on when she cast the decisive fifth vote to integrate

the all-female nursing program in Hogan v. Mississippi. Regardless of what the drafters had been

thinking about sex discrimination in 1867, when they drafted the Fourteenth Amendment after the

Civil War, by 1981, Justice O’Connor believed, people expected some restraints on arbitrary

divisions by sex. This openness distinguished her from Justice Scalia, who would mostly stop the

clock when the ink was dry on the Constitution.

In 1989, Justice Scalia had tried his hand at sneaking his rule of strict interpretation into a

plurality decision. Traditional practices, he suggested, could not be undone by newly developed

claims of right. Scalia’s time travel would, needless to say, undo most of the jurisprudence of the

prior six decades. But O’Connor and Kennedy had both called him on it, reducing his support for the

footnote coup to a minority of two. In her hearings, Ginsburg embraces the O’Connor position on

constitutional interpretation, a position that allows the Court a fair amount of latitude for bringing the

Constitution out of the periwig age. Going up to the high court, the Second Woman agreed with the

First that the Constitution needed to ride the train to the present world.

Still, their visions of the present world were very different. Not because they were living in

different worlds; they were not. Their lives were actually so similar that a certain amount of

Sandra/Ruth confusion might be understandable. They were only three years apart in age. By 1993,

they were both rich and richly privileged. Ruth lived in the luxury Watergate apartment complex and

Sandra in Chevy Chase. Children grown and husbands earning good money, they would often see each

other at Washington National Opera performances or at a dinner for the Washington National Opera

Lawyers’ Committee. When not on the bench they traveled around, giving speeches and classes in

nice places such as Florida and Salzburg.

In the confirmation process, it emerged that Ginsburg had long tried to see a world beyond her

privileged surroundings. “One of the things that I have done every other year with my law clerks,

more often, if they are so inclined,” she testified, “is to visit the local jail and Lorton Penitentiary,

which is the nearest penitentiary. We visited St. Elizabeth’s, the facility for the criminally insane,

when it was a Federal facility. . . . I do that to expose myself to those conditions, and also for my law

clerks. Most of them will go on to practice in large law firms specializing in corporate business, and

won’t see the law as it affects most people. That is one of the things I do to stay in touch.”

Even though the White House managed to control her inclination to extoll the ACLU in her

hearings, Ginsburg’s opponents from the right correctly figured out that the mild-mannered feminist

with the history of occasional conservative votes on the appeals court would be bad for them. They

were not happy with their inability to get any traction against her. In a heated exchange with the

chairman of the Conservative Caucus, Howard Phillips, Senator Orrin Hatch made clear the

congressional Republicans’ position in those early days of the Clinton administration. They had lost

the election of 1992 and they would not fight Ginsburg’s nomination: “So don’t try and change the

Supreme Court in the sense of politicizing it and electing people who will be prolife,” Hatch told

Phillips. “We now have a President who believes this way and he has picked a person who believes

this way, and he has a right to do so and that is the point.”

The vote was 96 to 3.



AT HOME IN HER CHAMBERS



The new justice was novel to the Court in more ways than just her newness. Previous justices had

always resigned themselves to the lousy chambers available to the newest member in order to be on

the first floor, where all the other justices were. Not Ginsburg. She willingly paid the price of

distance from her colleagues for much more gorgeous quarters on the isolated second floor. Then she

broke with all existing Court decorating styles, with sheer curtains, a light-colored plain carpet, and

the iconic mid-century modern Eero Saarinen Tulip Table beneath modern pictures borrowed from

the National Gallery and from her own collection. Her office would be contemporary and luxurious,

like her home.

And filled with family. To “Justice Ginsburg, the clerks were family,” her first Supreme Court

clerk, Margo Schlanger, says. After all, she picked them like family. First, like family, they had to

resemble her, not physically, but in coming from somewhere in the vicinity of first in their class.

Margo Schlanger was at Yale, which, famously, does not rank its students, but she was at the top of

her class and did win the Vinson Prize for excellence in clinical casework and edit the Law Journal,

a dead giveaway. Yalie David Schizer, also at the top of the class, edited the Law Journal too. Sean

Donahue graduated with high honors from Chicago, and David Post was summa at Georgetown.

Exactly like Ruth, Alexandra Shapiro was first in her class at Columbia. But anyone who gets into the

Supreme Court clerk pool is likely to have great paper. Ruth was looking for something much more

basic. She wanted relatives. It was well known among the clerks that Ginsburg didn’t, as the Chicago

machine pol famously said, “want nobody nobody sent.”

Yale Law Journal ’s Schlanger came from . . . her father Michael Schlanger, who grew up with

Marty Ginsburg on Long Island. Their families belonged to the same golf club. And for years after

they all grew up, Margo’s father, a New York lawyer, and Martin Ginsburg, then a New York lawyer,

would go out a couple times a year and play golf. Offspring of the handful of female students in Ruth’s

Class of ’59 at Columbia Law School turned up with clerkships—whether it was David Goldberg in

her Circuit Court days or David Schizer at the Supreme Court. All the clerks in 1991 knew Sean

Donahue had an edge for Ginsburg’s 1992 Circuit Court clerkship. He was a classmate of James

Ginsburg at the University of Chicago Law School. (Even before she went up, her Circuit Court

clerkships often led to a berth on the Supreme Court; Goldberg with Souter and Donahue with

Stevens, for example.) Her strategy was to get clerks from people whose ties to her were deeper and

more important than just regular reference writers. All the candidates were elite; she was just

reproducing her trusted family circle.

Perhaps her favorite in those early years was David Post, who came back to her Supreme Court

chambers after he had clerked for her on the lower court. Post’s special appeal was that he, like

Stephen Wiesenfeld, broke the sex-role-stereotype mold. When his first child was young, he took on

the primary parenting role so his wife could work. “That was the best career move I could have

made,” Post says, because it made him so desirable for the first Ginsburg clerkship. When he went for

the second round, he was already tending his second child, which he did throughout his clerkship.

“She was the best boss you could have wished for,” he says. “She did not care if you were there early

or late or at all. As long as you got the work done.”

On so many fronts, ties to Ruth Bader Ginsburg were ties that bind. In April 1993, she found out

from Stephen Wiesenfeld that Baby Jason was applying to law school. Ruth advised him to send

Jason to her daughter Jane at Columbia. When Wiesenfeld thought a letter from Ginsburg might



motivate his son, she wrote to Jason directly: “Dear Jason, I have the good news from your father that

you are applying to law school. My daughter, Jane, who now teaches at Columbia Law School, would

be glad to talk to you.” She corrected Jason’s application essay. A year later, she called to

congratulate Stephen on his son’s acceptance. “Thank you for your phone call,” Stephen wrote.

“Jason was absolutely thrilled with his acceptance at Columbia.” The stories are legion. One year she

took all her clerks who had married or become engaged to each other to the fancy D.C. restaurant

Asia Nora for dinner on Valentine’s Day. After dinner they were presented with fortune cookies with

love poems inside.

Nor did Ginsburg forget her tribe. The first Jewish justice in a generation, she was immediately

approached by the clerk of the Court to help out with a Jewish question. Orthodox Jewish lawyers

had been sporadically objecting to having the year on their certificates of admission described as

“The Year of Our Lord.” In typical Ginsburg fashion, she initiated a survey of the lower federal

courts’ practice. Learning that some had altered the certificate to avoid offending lawyers who didn’t

count the years from the birth of Jesus, she sent a letter to the chief, asking for a change in the

practice. As she reports it, she caught some flak. “I was told by a colleague, ‘Why are you making a

fuss about this? It was good enough for Brandeis, it was good enough for Cardozo and Frankfurter.’ I

said, ‘Stop. It’s not good enough for Ginsburg.’” Although Ginsburg does not reveal the source of the

resistance, one of her clerks thought Justice Rehnquist was less than pleased, and Justice Blackmun’s

papers include his note on the discussion to the effect that “we protest too much.” Nonetheless the

Court agreed to change its practice and offer people a choice in the wording of their ceremonial

paper.

Unlike the tidal wave of attention that greeted the First WOTSC, coming second, Justice

Ginsburg’s swearing-in was an intimate affair, with just “judicial colleagues, extended family, and

closest friends” in the East Room of the White House. No phalanx of media, except the reporters

drawn to the site by the awful coincidence of more scandal over the White House counsel Vince

Foster’s suicide. But it was a big day anyway. As Gloria Steinem’s office wrote to Stephen

Wiesenfeld, “now that Ruth Bader Ginsburg has been confirmed, we can rest assured that the

Supreme Court now has a true feminist voice.”



15

Ginsburg’s Feminist Voice



THE FEMINIST VOICE



As the October 1993 term opened, one of the first cases up was a sexual harassment suit, the

notorious Harris v. Forklift Systems. Sexual conduct had been front and center in the culture wars

since the courts began recognizing harassment at work, most notably in the 1986 Supreme Court

decision in Mechelle Vinson’s case against the bank. Nothing unbalances the balance of power

between the sexes like the possibility that a woman can bring a costly and embarrassing lawsuit

grounded in sex.

No one wanted to advocate for people like the noxious bank manager Sidney Taylor, so the

discussion took cozier forms. Judge Alex Kozinski, a conservative intellectual beacon of the Ninth

Circuit Court of Appeals, worried that people would hesitate to initiate “office romance.” Without

romance, the office would be a much less inviting place and who would want to work there?

Harvard’s media star Alan Dershowitz thought offensive sex talk in the workplace was protected free

speech under the First Amendment. The well-respected conservative legal theorist Judge Richard

Posner wondered if sexual harassment wasn’t just usually a misunderstanding.

The pushback often focused on women’s capacity to take a hit. Dershowitz called complaining

women “crybabies.” And that’s exactly the issue the Court had to decide when it took up the matter

again in Harris. How bad does it have to get before a woman can push back against sex in the

workplace?

Harris was pretty raw: the company president, Charles Hardy, had called the manager Teresa

Harris “a dumb-ass woman” in a company that “needed a man,” he said. But while she was there, he

asked her (and other female employees) to fish in his front pants pockets for coins, to pick up objects

he threw on the ground, and to come down to the Holiday Inn to negotiate her raise. He was surprised,

he said, that she was offended by this merriment and promised to stop. Instead, he interrupted her in

conversation with a customer, asking her if she’d offered to “bugger him.” (The Supreme Court

opinion euphemistically translates Hardy’s inquiry as did she “promise the guy some [sex] Saturday

night?”) Harris quit. Then she sued.

In the seven years since the Court’s sexual-harassment decision in Vinson v. Meritor Savings

Bank the lower courts had divided over how bad sexual harassment had to get before it violated the

Civil Rights Act. Meritor, involving allegations of sexual extortion, rape, assault, and indecent

exposure, hardly gave much guidance on how to handle lesser affronts. The law did not require the

employee to have been fired or demoted before she could sue. However, some courts, like the lower

courts in Harris, thought the employee had to have suffered somehow, and psychological injury was

the next thing to suffering actual material damage. Other federal courts said no such injury was

required. The Equal Employment Opportunity Commission had proposed guidelines rejecting the

requirement of psychological injury and suggesting a looser standard still, which would require only

that “the environment hampers her opportunity to succeed vis-à-vis her male peers or denies her



credit for her achievements.” The lower federal courts in Tennessee read the earlier decision to

require severe psychological injury, and they did not think that Hardy’s behavior was serious enough

to cause Harris such harm. So they ruled against her.

At conference, everyone agreed that the lower courts should stop requiring plaintiffs to show

severe psychological injury in sexual-harassment cases. Such a standard had the perverse result of

rewarding the psychologically weak with a lawsuit for her suffering and penalizing the woman

worker who can take the heat by requiring her to stay in the hot factory. The chief assigned O’Connor

to write the opinion.

Her cautious first draft only marginally reduced the standard for proving sexual harassment,

suggesting the workplace must be abusive before a victim could sue. O’Connor’s effort immediately

triggered a robust critique from Harry Blackmun. Even the Court’s prior opinion, Blackmun reminded

her, included redress for a “hostile” or “offensive” environment as well.

Ginsburg did not even try to negotiate the language of O’Connor’s draft. Instead she joined

immediately, always welcome when the writing justice is trying to assemble a majority, even when

the vote at conference was unanimous. Ginsburg was, she said, merely appending a “brief concurring

statement,” just a tiny addition “on a point I wish to emphasize.” Ginsburg’s point, not remotely tiny,

was that the standard for sexual harassment under the Civil Rights Act should be the same as the rule

for race: Would the offending behavior make it harder for a reasonable person to do their job? At

oral argument, she had leaned all over the lawyer for the obnoxious Mr. Hardy to admit this: “If it had

been race-based or religion-based or national origin, would your analysis be any different?” she

demanded. “It is the same statute, Title VII, what applies to race applies to gender, right?” And so in

her modest addition, she asserted that the Court should apply the standard used to interpret the Civil

Rights Act in racial harassment cases such as Davis v. Monsanto Chemical Co.

Under the racial standard, “it suffices to prove that a reasonable person subjected to the

discriminatory conduct would find, as the plaintiff did, that the harassment so altered working

conditions as to ‘ma[k]e it more difficult to do the job.’ . . . Title VII declares discriminatory

practices based on race, gender, religion, or national origin equally unlawful.” Ginsburg’s “brief”

addition, which closely tracks the EEOC’s regulations, would have made it much easier to prove

harassment and also emphasized the equality agenda always in the forefront of her analysis. Harassing

a female worker made her unequal to her male colleague in the amount of effort she had to expend to

do the same job.

Blackmun’s clerk Sarah Cleveland thought Ginsburg had a capital idea. Her “brief” concurrence

captured the inadequacy of O’Connor’s draft and focused on an equality-oriented standard. Cleveland

thought Justice Blackmun should join Ginsburg’s concurring opinion. Instead he wrote to O’Connor

again, suggesting using the Davis standard. But O’Connor was having none of it. “Perhaps,” she wrote

in her letter to him, with copies to everyone, “the Davis test will ultimately prove to be the right one,

but now is not the time for us to decide this.” And so, in the next round of drafts, she explicitly

refused to chime in, opining, “We need not . . . specifically address the Equal Employment

Opportunity Commission’s new regulations on this subject.”

Instead O’Connor invoked what the Court had said in the bank case seven years before. “When

the workplace is permeated with discriminatory intimidation, ridicule, and insult,” she held, “that is

‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an

abusive working environment.’ . . . Title VII is violated.”



Since the lower courts had been having a problem figuring out what in the world the Court had

meant, she tried to clarify: “Conduct that is not severe or pervasive enough to create an objectively

hostile or abusive work environment—an environment that a reasonable person would find hostile or

abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the

environment to be abusive, the conduct has not actually altered the conditions of the victim’s

employment, and there is no Title VII violation. But Title VII comes into play before the harassing

conduct leads to a nervous breakdown.”

Despite this explicit refusal to adopt her suggested standard, Ginsburg, who had received a copy

of O’Connor’s letter to Blackmun, apparently decided to “be a little deaf.” In Ginsburg’s concurring

opinion pitching the standard in the race cases—exactly what O’Connor was not ready to embrace—

she asserted that since O’Connor’s majority opinion was “in harmony” with her beliefs, she would

join in.

Ginsburg’s right-hand man that first year, her former D.C. Circuit clerk Hugh Baxter, calls these

unfounded agreements Ginsburg’s “happy face dissents, writing all the things that were good” about

the majority decision. Her motivation to find “harmony,” even in face of an explicit rejection, was

partly strategic, he concluded, to save the day for another case by minimizing the harmful aspects of a

loss. “Very smart,” he thought. “After all, she was a cause lawyer and knows how to build things for

the future.”

DEFENSE AND OFFENSE ON THE SUPREME COURT



This exchange, from the very beginning of their twelve-year tenure together as justices, set

O’Connor’s and Ginsburg’s respective roles in the cause of women’s legal equality. Sandra Day

O’Connor played defense; she would not permit the courts to roll the equality ball backward.

O’Connor had already manifested that commitment when, most famously in Casey, she refused to

overturn Roe v. Wade. In the sexual-harassment cases, she joined all her colleagues to deny that the

employee must have “a nervous breakdown” to recover. But in the abortion cases, her rulings meant

that women who wanted equality had to be willing to endure every burden short of criminal penalties

and spousal notice in order to get their abortions. In the sexual-harassment arena, she would have

them suck it up and survive harassment on the job until things got so bad the workplace was outright

hostile or abusive. Channeling her father, Harry Day, plaintiffs would have to jump on the lug wrench

and get the tire changed before the courts would come in to help them.

In hindsight, these opinions look ungenerous. But O’Connor’s clerk Stephen Gilles and the

ACLU’s Aryeh Neier, an astute social observer, both credit her with laser judgment about what the

Court—and the society—would digest at any particular moment. Certainly Anthony Kennedy, the

crucial third vote in the opinion that saved abortion rights in Casey, repeatedly demonstrated his lack

of sympathy for women’s equality in the years after 1992. Had O’Connor used their brief agreement

on abortion to strike down any more of the Pennsylvania law, he might well have walked. Sometimes

a courageous rearguard action is exactly what an army needs.

Ruth Bader Ginsburg, who had been presented to the solons of the Senate as a charming moderate,

played offense. At the oral argument in Harris one month into her first term, she officially revealed

how her life work for women’s equality would infuse her judging on the Court. When Justice Stevens

began a humorous colloquy with Harris’s lawyer about an employer who might say “You’re a man,

what do you know” since, he admitted, Stevens’s wife often says such things to him, she cut him off.



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