The Chief Justice’s Second Draft
When the claim that law firms could discriminate against women in their partnership decisions reached the Supreme Court in the 1980s, the firm making that claim was arguably more high powered than Sullivan & Cromwell. Griffin Bell, one of the senior partners in the firm, King & Spalding of Atlanta, Georgia, was both a former federal judge and a former attorney general of the United States.
Bringing the case against them was a young attorney named Elizabeth Anderson Hishon, known to her friends as Betsy. In the first year that Harriet Rabb worked at Columbia, and shortly before Ruth Bader Ginsburg arrived there, Hishon finished her law degree, graduating in 1972. Few if any of the women’s rights leaders at Columbia recalled her playing an activist role in their law school days. She saw herself as someone who did not wear armbands or march in demonstrations. She distinguished herself not with activism but scholarship, and she graduated as a Harlan Fiske Stone Scholar.
Before she arrived at King & Spalding, the firm had hired one woman attorney, as an associate, back in about 1944, and then promoted dozens of men to partner while that woman remained an associate for over three decades. She worked for the firm, still not as a partner, when it hired Hishon in 1972.
Seven years after the firm hired Hishon, it passed her over for partnership and forced her to leave. She believed it had failed to meet one of the promises it made when it recruited her out of Columbia Law School: “fair and equal” consideration with men in competition for partnership. Arguing that she had been discriminated against by the firm, which still had never promoted a woman to partner, she filed papers in federal court charging Atlanta’s most powerful law firm with discrimination.
The firm chose not to argue that it did not engage in discrimination. Instead it made a counterargument that followed the path set by Sullivan & Cromwell in its replies to Diane Blank. King & Spalding argued that its partnership decisions could legally discriminate against women. And it argued not just that Title VII did not cover partnerships, but further that the First Amendment of the Constitution granted law partners the right to freedom of association and expression that would be violated if they were forbidden to apply whatever selection criteria they chose—even if this meant engaging in sex discrimination or, incidental to this case, race discrimination.
The law firm won first in federal district court and again before a three-judge panel in a court of appeals, which ruled that “Title VII does not apply to decisions regarding partnership.” The reach of Griffin Bell and his firm extended so pervasively in that southern court that, according to Hishon’s attorney, “nine of the twelve active judges of the Eleventh Circuit may have disqualified themselves” to avoid potential conflicts of interest. When the case seemed likely to go to the Supreme Court, the head of the Civil Rights Division in the Office of the Attorney General, William Bradford Reynolds, let his staff know that he sided with the firm. Undefeated in court, supported in the Office of the Attorney General, and known for having among its partners a previous attorney general of the United States, the firm stood poised for a victory that would declare that law firms, in the selection of partners, were exempt from antidiscrimination law and could legally discriminate against women.
Some lawyerly fun in the summer of 1983, before argument in the Supreme Court, may have hurt the firm’s case in the court of public opinion. For a summer outing, King & Spalding planned originally to hold a wet T-shirt contest featuring a few of the women among its associates. When soaking the women’s shirts seemed impolitic, the firm instead held a bathing-suit contest. It gave a prize to a summer intern, then entering her third year at Harvard Law, who, in the words of one partner, had “the body we’d like to see more of.” This story spread, with help from the Wall Street Journal.
ORAL ARGUMENT ON HALLOWEEN in the case of Betsy Hishon brought sustained insistence by King & Spalding’s attorney, Charles. J. Morgan Jr., that “lawyers are entitled to the highest degree of First Amendment associational freedom” and that the Constitution protected them from Title VII. Further, although no congressman during debates had suggested exempting lawyers from Title VII, he argued that congressmen had intended the exemption. His reason: many congressmen were lawyers and, in passing Title VII, “certainly had in their minds that they were lawyers.” Justices resisted, insisting that lawyers in Congress “knew full well how to write exemptions.” Morgan asserted also that law partnerships’ freedom from Title VII meant partners could force women to work more years than men before being considered for partnerships. Arguing against him, Emmett J. Bondurant II—a family friend of the Hishons who at first urged Betsy not to sue, on the grounds that she would “get over” the pain of injustice—contended that the special position of lawyers in society, and the importance that minorities advance within the legal profession, “advocates for and not against coverage of Title VII.”
In conference on November 2, 1983, all nine justices voted against King & Spalding and apparently in favor of applying Title VII to partnerships. Chief Justice Burger took the opinion for himself. For the rights of women, he seemed inauspicious. While Diane Blank had been seeking jobs with law firms in late 1970, Burger—during oral argument in a Title VII case—had sought reassurance that federal judges could, “as a matter of general policy,” refuse to hire a “lady law clerk” if she had an infant child. (Privately in the fall of 1971, he was resisting so strongly the possible appointment of a woman to the Supreme Court that he delivered to the White House a letter of resignation.)
The chief made a last effort to protect partnerships. His draft opinion, which remained hidden from public view, stunned fellow justices. Apparently recognizing its historical worth, Justice Blackmun scrawled atop his copy a tall exclamation point and then, in script far larger than his usually small handwriting, “Do not Destroy.” Burger devoted much of the first half of his opinion to suggesting that partners of King & Spalding might not be “employees” for the “purposes of Title VII” and thus might be exempt from Title VII.
Then the chief justice explained that Betsy Hishon’s chances would depend on her claim that King & Spalding had made a “contract”—unusual among law firms—that specified she would be reviewed for partnership on a “fair and equal” basis. Burger’s opinion offered her the chance to bring “evidence” showing the firm “indeed made such a contract.” After extended discussion suggesting that partnerships might be protected by the Constitution against intrusion by civil rights law, he said, “The question is not whether Congress intended Title VII to intrude on partnership decisions but whether Title VII provides a federal court remedy when a partnership has made the kind of contract that petitioner alleges.” Put another way: Only when a partnership is so generous or foolish that it contracts to make hiring “fair and equal” can Title VII enforce its prohibition against hiring that is unfair or unequal. Any partnership smart enough to avoid such explicit contracts would be unaffected by Hishon. And King & Spalding would be unaffected if it could convince a lower court that it had not made such a contract.
The chief justice’s last effort to protect law partnerships brought instant opposition. On the day the draft appeared, in a letter to all justices, William J. Brennan attacked Burger’s effort to limit Title VII. Two days later, Justice Stevens rebuked the chief justice for not following the unanimous vote in conference. That day also, Justice Brennan circulated a full draft attacking the chief justice’s “novel theory of Title VII under which petitioners must prove the existence of a common law contract in order to receive the protections of a federal statute.” Congress would not have bothered to create what Brennan called “the elaborate scheme” of the Civil Rights Act of 1964 merely to “afford a federal forum to enforce common law contracts to provide a ‘fair and equal’ treatment.” In short, Brennan argued, King & Spalding’s “obligation to treat its employees equally does not derive solely from its voluntary promise to do so. It is, instead, a mandate of federal law.”
Under attack, and with other justices including Thurgood Marshall and Sandra Day O’Connor opposing his contract theory, Chief Justice Burger surrendered. He wrote to his fellow justices that “there seems to be considerable feeling that the case should not turn on the contract” and “I will try my hand at another run.” Next to “not turn on the contract,” Justice Blackmun penciled, “Of course!”
The chief justice’s next run went slowly. In May he delivered an opinion with new twists. After again discussing the alleged “contract,” in a footnote he conceded that Title VII made such contracts unnecessary. After quoting a Court opinion from 1973 that “private discrimination may be characterized as a form of exercising freedom of association protected by the First Amendment,” within a few words he also quoted that opinion’s comment that such discrimination “has never been accorded affirmative constitutional protections”—leaving open whether constitutional protection might yet be accorded to discrimination. The chief justice’s writhings could make full sense only to the few readers who saw his first-draft efforts to help King & Spalding. Finally, if reluctantly, he overruled the lower court decision that had exempted partnerships from Title VII and thus freed them to discriminate.
Having missed the chief justice’s contortions, the press reported the decision’s straightforward impact. The New York Times announced on its front page that the Court had “ruled unanimously today that law firms may not discriminate on the basis of sex, race, religion or national origin in deciding which young lawyers to promote to the status of partner.” The Washington Post pointed to the case’s broad effect, reaching other partnerships such as “advertising agencies and architecture, engineering and accounting firms.”
Now that law firms could no longer claim a legal right to discriminate against women or blacks or Jews, the ruling seemed obvious. As George Will wrote in the Washington Post, the Supreme Court’s decision said to King & Spalding, “Give me a break.” This was a law firm, Will added, “from which a sophist could take a correspondence course in sophistry.” Hidden from all but a few justices and clerks was the fact that, only months before and trying to deliver an opinion of the Supreme Court, the chief justice of the United States had been writing on the side of the sophists.