Wiesenfeld Brings Reality
Back in the days before Frontiero, when Justice Brennan failed to get his fourth vote for “strict scrutiny,” and back before Kahn, when Douglas led the majority backward to what she saw as “bad precedent,” Ginsburg had a sure view of Wiesenfeld: “if ever there was a case to attract suspect classification for sex lines in the law,” Wiesenfeld was that case. Legally, it had everything.
Unlike Reed and Frontiero, Stephen Wiesenfeld was Ginsburg’s client, and he had entered the case not for personal gain (since he did not expect to receive any money) but for the principle that a woman’s work should be worth as much as a man’s (or, in this case, that a woman’s insurance payout should be worth as much as a man’s). Unlike Struck, this case would not go moot. Wiesenfeld, she wrote to an associate in early 1973, “presents no possibility of settlement short of a declaration that the law is unconstitutional.”
And crucially unlike Kahn, Ruth Bader Ginsburg believed, Wiesenfeld did not attack a law that seemed to help women. Melvin Kahn had appeared to make a claim of reverse discrimination, to fire a salvo on behalf of what the media was beginning to call “men’s lib.” Only at first glance, Ginsburg believed, could Stephen Wiesenfeld be seen as another man using the rise of equal rights to get himself a bonus. By forcing judges to look closely at Wiesenfeld, Ginsburg hoped to show that discrimination against either sex ultimately hurt both. For years, Ginsburg had fought against the thinking behind such phrases as men’s lib and women’s lib. She wanted to fight for a broader liberation that freed society from such categorizing by gender. As Wiesenfeld moved to the Supreme Court, she would have her chance.
FOR THE CASE OF THE WIESENFELDS, the route to the Supreme Court would run, as Ruth Bader Ginsburg told Stephen Wiesenfeld in their first phone call, via district court in New Jersey. Because Wiesenfeld was a federal case (it challenged the federally funded Social Security program) and because it raised a constitutional question (did that program violate the equal protection clause?), it would be heard by not one but three judges. From there, since either party would appeal if it lost, the case could be expected to go to the United States Supreme Court.
To get the case ready, Ginsburg turned to the students in her Equal Rights Advocacy Seminar at Columbia Law School. At the start of each term that Ginsburg taught the seminar (its initials, like the amendment, ERA), students chose from among a menu of cases that Ginsburg might be taking to the Supreme Court. Students had worked on briefs for the wonderful Struck, the near-miss Frontiero, the hapless Kahn, and now Wiesenfeld.
At Columbia, Ginsburg teamed with unusual students. Few were fresh from college; one had been an art historian, another had a doctorate in French literature, and a third had worked as a journalist until she brought a sex discrimination case against her magazine. Many were ready to rumble; one class prided itself on getting the law school’s main women’s bathroom expanded by taking away part of the main men’s room. Ginsburg’s ERA seminar gave her students the chance to test themselves against major law. Taking on the federal courts felt like “breaking new ground”—in the words of Sandra Grayson, who took the assignment to write the Wiesenfeld brief for the district court—like an “uphill battle” in which you could never know whether you would succeed.
For each student and document, the pattern was much the same: a student would write; Professor Ginsburg would rewrite. Mary Elizabeth (“M.E.”) Freeman, one of the bathroom liberators who signed up for the chance to write the Wiesenfeld brief for the Supreme Court, remembered that case, with its compelling facts, as manna from heaven. “I mean,” Freeman would say years later, the youthful energy of those days bubbling up in her words,
to pick a man whose wife died in childbirth, something that doesn’t happen a lot in the latter part of the twentieth century, with a BABY—a child in arms that has, as its only parent left, a father who wants to take care of his kid! I mean, WIDOWS AND ORPHANS—you can’t get any better than that!
Brief drafting was fun. Students like Freeman would go overboard, filling early drafts with sarcasm and sometimes venom. Then “Ruth,” as all the students called her, would cut and polish. She would transform sarcasm to irony, venom to law. And sometimes Ruth would add one of her legal jabs—what students thought of as her zingers, so sharp that students would cry out, “OH, YES YES,” laughing aloud. For her classmates, Freeman thought, challenging the Court felt like their version of going to war—only two or three years out of a life, but a time of bonding and achievements to talk about for a lifetime. And unlike war, this was fun! It had no downside.
Working with Ruth also brought a shocking change from the rest of law school classes, where the abstract could crowd out the human. Clients like Stephen and Jason Wiesenfeld became part of the students’ lives. Students saw letters Stephen wrote and letters Ruth wrote back, advising him, for example, about his nanny woes: “Having gone through more helpers and housekeepers than I care to count over the past seventeen years,” she told him, with her mix of optimism and realism, “I know that eventually the right person does appear, and then you are set for a few years.”
The students in Ginsburg’s seminar came to realize that the story of the Wiesenfelds offered a window into Ginsburg’s vision of an ideal society: one in which fathers cared for and helped raise kids, in which gender lines blurred toward invisibility. Freeman, looking back years later, saw the case as “illustrative of what Ruth has been saying her whole life, about children and parents and childcare. She has always emphasized the need to bring fathers into the picture and make them fully responsible. And here Stephen was stepping up to the plate and doing it.”
TO GET WIESENFELD READY for the Supreme Court, in the spring semester of 1973 (in the months after she argued Frontiero but before she received the opinion and learned that Brennan had failed to win five votes for strict scrutiny), Ginsburg challenged her ERA seminar to go, in the period of one semester, from startup to a hearing before a three-judge panel of a district court. The students sprinted to draft and file all the papers: the legal complaint, the application for a three-judge court, and various motions and depositions.
The law school term had just ended when a three-judge panel in Trenton heard the case. The government’s attorney argued that the law acknowledged a “natural basis” for widows to be more protected than widowers. Ginsburg argued for strict scrutiny. Either way, the decision of the district court seemed unimportant since, no matter how the case was decided, it was going next to the Supreme Court. But during the argument in the district court, Stephen Wiesenfeld heard the government make an argument he was not expecting: because he now had a good job, the case should be dismissed.
The government’s argument was strong: to be eligible for full “mother’s insurance benefits” of just under $250 per month, which were apparently designed by Congress to help a widow stay at home and care for a child, Stephen’s own income could not exceed $200 per month. Since he was now earning $1,500 a month at Cyphernetics, his case seemed to involve no money. Under federal law, to bring suit Stephen had to prove that the amount of money in controversy reached at least $10,000.
After all the time and effort from Ginsburg and her students, Stephen worried that his job might cost them their case. Before the district court could decide, and without describing his scheme to Ginsburg, Stephen Wiesenfeld made a decision. To save the case, he gave up his job at Cyphernetics.
The law’s criteria forced Stephen to apply his MBA skills to choosing a new line of work, one that had to meet tricky specifications:
1. He needed the ability to control his income. That meant he should again become a sole proprietor of a business, into which he could reinvest any profits while paying himself a salary small enough to qualify for Social Security.
2. He needed a place for Jason to play while he worked. That suggested he should run a retail shop near home.
3. He didn’t want to commit himself and Jason to long hours in a store. That mandated he make rapid sales of a few high-margin items.
He needed, in order to keep his hours short and margin high, a product about to experience a jump in demand. Choosing that product posed the biggest challenge. To determine where demand might jump, Stephen read the newspapers with new acuity. In the news in the summer of 1973, the big drama was far away: tension in the Middle East. This settled him on his choice, one not obvious to everyone: from a small storefront near the Rutgers campus, from 1:00 to 5:00 p.m. daily, he would sell high-grade bicycles.
Stephen’s MBA had served him well. In October, he opened a store with just enough room to hold ten Fuji bikes (a well-made product otherwise unavailable nearby) and tucked a playpen for one-and-a-half-year-old Jason in a corner. Late that month, Arab nations announced an oil embargo. As fuel prices soared, Americans rediscovered the bicycle. Into Stephen’s store came young doctors and lawyers and Rutgers students. His income again would have quickly disqualified him for Social Security if he had not invested his profits back in the business. He bought bicycles galore, jamming them into his garage.
As soon as Wiesenfeld told Ginsburg he was out of his $1,500-a-month job, she saw the legal gain. He was, she wrote to one of her former Rutgers students who was assisting her as co-counsel on the case, “back in the situation he was in just before the complaint was filed—jobless and unquestionably qualified for benefits, apart from his sex.” She asked her former student to put together an affidavit to inform the court.
Wiesenfeld never told Ginsburg that he left his well-paid job to preserve her case. Certainly she had never asked him for that sacrifice. “She was the kind of person,” he would say years later, “you knew would not ask you to alter your lifestyle or what you want to do in order to keep her going.”
In December of 1973, just as Stephen’s bicycle shop was beginning to boom, the district court issued its opinion in Wiesenfeld. It devoted two pages to what it called the government’s “strong argument for dismissal”: Stephen’s Cyphernetics salary had meant that his case involved no money, and surely less than $10,000. To Stephen’s relief, on the grounds that “he is now unemployed,” the court ruled not to dismiss the case.
The district court then proceeded to give Ginsburg an unprecedented victory. Not only did it rule in Stephen’s favor, it went beyond precedent by citing what Justice William Brennan had asserted in Frontiero—that sex was “inherently suspect” and thus deserved strict scrutiny. Astonishingly, the district court chose to ignore the Supreme Court majority, which had rejected Brennan’s argument. The stage was set for a battle at the Supreme Court.
THE GOVERNMENT COUNTERATTACK came under the direction of the solicitor general of the United States, Robert Bork. Despite the powerful role of the solicitor general in shaping American law, for years it had remained a somewhat obscure position, little noticed by the public. Two months before the district court’s decision in favor of the Wiesenfelds, however, Bork had briefly lifted the role of the solicitor general into the public glare. At that point, in October of 1973, Archibald Cox of Harvard, who had himself served as solicitor general under President Kennedy, was acting as a government-appointed special prosecutor, charged with deciding what indictments, if any, should be brought against Nixon and his associates in conjunction with the combination of burglary and cover-up that had become known as “Watergate.”
Three months before, when the nation first learned that President Nixon had been secretly taping his phone conversations and White House meetings, Cox had subpoenaed key conversations. Nixon resisted; Cox persisted. Finally, in what became known as the “Saturday night massacre,” on October 20, 1973, Nixon ordered Attorney General Elliot Richardson to fire Cox. Refusing, Richardson resigned. Richardson’s deputy attorney general, William Ruckelshaus, given the same order, also resigned. Next in line was Bork, who, thanks to two resignations, had risen to acting attorney general. Bork fired Cox.
The national outrage swelled so fast that within a week, Nixon had relinquished his tapes, and soon after, Bork, as acting attorney general, had appointed a new Watergate special prosecutor. Not long after, with the appointment of a new attorney general, Bork returned to focus again on his role as solicitor general.
One of the many cases then before his office was Wiesenfeld, and in February the Office of the Solicitor General notified the Supreme Court that, as Ginsburg had anticipated, it opposed the district court’s ruling. Its appeal contended that precedent in Kahn, which declared a constitutional preference for widows, governed Wiesenfeld. Courts should focus on the government-created advantage (to widows) and not on any government-created disadvantage (to female wage-earners).
Ginsburg responded not just by rebutting the government’s arguments but also by reversing their sequence. Her argument began by focusing on (and attempting to see through the eyes of) one particular female wage-earner. Ginsburg’s brief commenced its argument with Paula Wiesenfeld, who
contributed to Social Security on precisely the same basis as an insured male individual. Upon her death, however, her family received fewer benefits than those paid to similarly situated families of male breadwinners. The sole reason for the differential was Paula Wiesenfeld’s sex. As a breadwinning woman, she was treated equally for Social Security contribution purposes, but unequally for the purpose of determining family benefits due under her account.
Standing before the court, in oral argument, she extended this line of attack, condemning this law that, because “the deceased worker is female,” subjected her family’s protection “to a 50 percent discount.” Because the law classified people not by their work but by their sex, she told the justices,
Paula Wiesenfeld, in fact the principal wage earner, is treated as though her years of work were of only secondary value to her family. Stephen Wiesenfeld, in fact the nurturing parent, is treated as though he did not perform that function. And Jason Paul, a motherless infant with a father able and willing to provide care for him personally, is treated as an infant not entitled to the personal care of his sole surviving parent.
Repeating each of the Wiesenfelds’ names in turn, Ginsburg made the entire family part of the case. She always used both of the infant boy’s given names, as if the claim of Jason Paul kept alive as well the claim of his mother Paula. Also present, not just nominally, was Stephen Wiesenfeld. Ginsburg sat him directly beside her and directly before the justices at the counsel table. She had not done this before with a client and never would again at the Supreme Court. She would never know if the justices knew that the man sitting at her side was Stephen Wiesenfeld. But she did know that judges worry about made-up cases, and she wanted to send a signal that “this was as genuine as any case” and that “this sort of sex stereotyping hurt many people, everyday people, people like Stephen Wiesenfeld.” And she wanted—and for this it mattered that Stephen was a man—the justices to be able to see themselves in his situation.
Throughout his case, Ginsburg had made Stephen feel close to this extraordinarily public presentation of his life. The night before they would appear in Court, she had called him to discuss her strategy for oral argument. She had expressed her fears: only three votes would come easily, a fourth (Potter Stewart) would be wavering, and four more would likely be opposed. With William O. Douglas incapacitated and absent for this argument, she might do no better than a 4–4 tie, and could easily do worse.
Now, seated beside her as she spoke, Stephen heard not her recent fears but her enduring assurance. The experiences of his family, she told the Court, epitomized the reality that most laws which purport to give special help to women in fact strike against those women like Paula Wiesenfeld who “choose to be wives and mothers and, at the same time, to participate as full and equal individuals in a work-centered world.”
For years, Ginsburg had been arguing that such double-edged damage typified the effect of laws that allegedly favor women. Now standing before the Court, in oral argument she admitted to the justices (as she had tried to avoid the year before in Kahn) that the gift of a $15 tax break to widows represented a rare single-edged law that gave an advantage to some women but did not, with a second edge, strike directly against others. But Wiesenfeld was not a case of a man grasping after a woman’s benefits.
Paula’s unacknowledged labor represented both the norm and the archetype of the double-edged law—an insurance benefit that, although it gave to the family of a nonworking mother who survived, took away from the family of a hard-working mother who died. American law’s devaluation of Paula Wiesenfeld’s labor, wrote Ginsburg in one of the zingers in her brief, “presents a classic example of the double-edged discrimination characteristic of laws that chivalrous gentlemen, sitting in chambers, misconceive as a favor to the ladies.” Ginsburg’s oral argument made clear that any Supreme Court justice was following chivalric code, rooted in the Dark Ages, if he voted to support Social Security regulations that had taken Paula Wiesenfeld’s money and then, because she was female, gave nothing back.
Precisely two months after he and Ginsburg walked away from the counsel table, Stephen Wiesenfeld was sitting at home when a neighbor called. News had come over the radio: victory at the Court.
Minutes later the phone rang again. Ginsburg was calling him, from a phone booth next to her parked car just off a roadway. She too had been listening to the radio. She sounded ecstatic, rambling, far from her normal self. She asked Stephen, What was the decision? How did the justices vote? She wanted to know, in essence, what have we won? He had no idea.
The decision was unanimous. Justice Brennan’s opinion was joined by all the justices but Rehnquist. And even he—the lone dissenter in Frontiero and an opponent in Kahn—did not dissent. The Court’s opinion criticized the government (and, implicitly, the solicitor general). “The Government seeks to characterize,” it said, the payment of widows’ benefits rather than parents’ benefits as an effort to compensate women for economic difficulties “which still confront women who seek to support themselves and their families.” But the Court dismissed this argument, responding that “the mere recitation of benign, compensatory purpose is not an automatic shield” that prevents the Court from asking why a law exists. By looking closely at the history of the law, the opinion revealed that its purpose was to permit a surviving parent to stay at home to care for a child. To discriminate between surviving parents based on their gender, the Court ruled, was “entirely irrational.”
Hidden from Ginsburg’s view was a last burst of discrimination against women that had played a role in her victory. She received a hint of it a few weeks later from a former student, Lynn Hecht Schafran, now clerking with the judge, Edmund L. Palmieri, who had welcomed Ginsburg after other judges refused to hire a woman. Replying to an invitation to celebrate the Wiesenfeld victory with the Ginsburgs, Schafran added a story she had heard about one of Brennan’s clerks:
This was Justice Brennan’s year to have a clerk from Berkeley and when he wrote inquiring as to the name of their best candidate, they replied with the name of a woman. Brennan wrote back saying no, no, he wanted the name of their best male candidate. Berkeley replied that this was the only candidate they had any intention of recommending and that Brennan had better shape up, which is why he has a female clerk this year.
Schafran had the story basically right, although it remained murky even to Brennan’s clerk, Marsha Berzon. In her last months at Berkeley, Berzon heard she had got the clerkship, then wouldn’t get it, then got it again. From Professor Stephen R. Barnett, who phoned her at each reversal, she heard the rumor that opposition came from Brennan’s secretary; but when Berzon arrived at his chambers, everyone got along well. Another rumor suggested the justice liked to curse in chambers, but Berzon never heard cursing. Around her the justice had the manner, she recalled later, of “an older gentleman.” But he had, she gathered, earlier turned away another woman nominated by her law school.
When Wiesenfeld arrived, as neither Ginsburg nor Schafran could know, Brennan involved Berzon before the justices met in conference, where votes split badly. Burger, Rehnquist, and apparently Blackmun planned to vote against Ginsburg’s case. Looking to gather support as she drafted an opinion for Brennan, Berzon followed a cue that she felt Ginsburg had planted with a footnote in her brief: dig into the history of the law from the 1930s that created mother’s insurance benefits. Berzon found what she needed. She wrote what became the climactic section of the opinion by Brennan, a historical discussion showing that Congress had written its law not to aid wives whose husbands had died but to aid children whose parents had died. Given the goal of aiding children, the opinion argued, a law must be overturned as entirely irrational if it “discriminates among surviving children solely on the basis of the sex of the surviving parent.”
Berzon’s historical analysis apparently lifted Wiesenfeld to unanimity. Most surprising, Rehnquist concurred. Writing separately, he too praised the opinion’s legislative history and joined its attack on the irrationality of a law that discriminated against a child merely because “the only parent remaining to it” is male. Decades later Ginsburg would marvel that for once she had won Rehnquist’s vote in a case involving equal protection. Wiesenfeld “had to be the perfect case, or we couldn’t have got Rehnquist,” she remarked years later. “Rehnquist was caught by the baby.” He was also caught by the research of a clerk who had almost lost her chance to work at the Supreme Court because she was a woman.
But the perfect case produced an imperfect victory. Gone, as if forgotten, was the long-running argument that Ginsburg had been building since her first Supreme Court case on behalf of Sally Reed: that classification by gender deserved the Court’s “strict scrutiny,” that sex was a “suspect classification,” that discrimination against a woman was as significant as discrimination against someone from a racial minority.
After the failure to win strict scrutiny in Frontiero, and after the outright loss in Kahn, and after other disappointments that suggested a growing hostility from Justice Stewart—all entwined with the arrival on the Court of new conservatives—Ginsburg had dropped her claim for full equality of the sexes. She knew Brennan could not muster the votes. Instead of insisting that sex discrimination face the hard test of “strict scrutiny,” she had decided to argue merely that it face some form of test, what she viewed as “ ‘heightened scrutiny’ without further labeling.”
Her reasoning was simple. After Kahn, she could not afford another loss, particularly in a case that she had once believed was her best. She could not afford to let what she believed was the right claim lead the court to a wrong decision. And never again as a litigator would Ginsburg push the Court to give strict scrutiny to the claims of women. Throughout the next generation, whenever women asked the Supreme Court to enforce the Constitution’s promise of “equal protection of the laws,” they would have to accept that the Court saw discrimination against women as merely second-class discrimination. Not until Ginsburg became a justice of the Supreme Court was she able to nudge the Court’s language higher—to what she called “skeptical scrutiny” in her 1996 Court opinion that ended exclusion of all women from Virginia Military Institute, but never to “strict scrutiny.”
STEPHEN WIESENFELD, after Ginsburg won his case and the Social Security Administration granted him parent’s benefits, wanted the victory to be not just principled but practical. Making use of the Social Security benefits of $248 a month awarded by the Supreme Court, he decided to raise Jason at home. He sold his bicycle shop, a year and a half after opening it, at a $22,000 profit. He then moved from New Jersey to Florida, seeking a location with low taxes and good public schools, where he lived from 1975 to 1982 on Social Security benefits and raised Jason. “I wanted to make sure that I qualified for the benefit for a while,” Wiesenfeld later explained, “so that all her work would have some value.” In 1982, his latest at-home entrepreneurial venture, writing accounting software for nonprofit institutions, became suddenly so profitable that he had to return that year’s Social Security benefits and once again began making considerable amounts of money. In 1993, Stephen Wiesenfeld testified to the Senate Judiciary Committee in support of Ruth Bader Ginsburg’s nomination to the Supreme Court. In 1998, Justice Ginsburg presided at the wedding of Jason Paul Wiesenfeld, who had just graduated from her alma mater, Columbia Law School.