Women and the Law
Despite her outsider status at Yale Law School through most of the early 1970s, MacKinnon remained part of the community of law students—attending law classes, whether registered or not. In the spring of 1975, she became part of a course on sex discrimination taught by a young professor named Barbara Underwood, who assigned a new textbook: Sex Discrimination and the Law: Causes and Remedies. Almost no one called it by that title. Using the names of its authors, students called it Babcock, Freedman, Norton, and Ross. The authors were well known to Underwood and many others, particularly at Yale and New York University, for the book’s origins lay in the earliest courses on women and the law—courses originated at NYU in the fall of 1969 by Susan Ross and later taught by Eleanor Holmes Norton, whose Yale Law roommate, Barbara Babcock, had been the first instructor to teach a women-in-the-law course at Yale after its initiation in the spring of 1970 by Yale students including Ann Freedman. The courses had evolved into a casebook two inches thick that made it possible for all law schools to offer instruction on gender issues.
What MacKinnon encountered in her 1975 course troubled her. The key analyses of Sex Discrimination and the Law, like many analyses of Professors Ruth Bader Ginsburg and Herma Hill Kay in their Text, Cases, and Materials on Sex-Based Discrimination of 1974, depended on one crucial starting point: a fundamental similarity between women and men, a presumption that men and women are “similarly circumstanced” (the words from Royster Guano that Professor Ginsburg dug up for the Reed case at the Supreme Court) or “similarly situated” (from the closing lines of the Reed opinion). But MacKinnon believed that the crucial starting point could not be similarity; it had to acknowledge women’s second-class status, which often led to what she called their “disadvantagement” because of sex. The summer before MacKinnon enrolled in Underwood’s course, the Supreme Court had delivered the fiasco of Geduldig v. Aiello, the pregnancy case in which the classification of “pregnant women” and “nonpregnant persons” had allowed the Court to deny women health benefits. For MacKinnon, this legal discrimination would come to represent women’s sex-based subordination and disadvantagement.
When MacKinnon received the “Dear Sisters” letter of March 1975, she thought, as she would recall for years, that what happened to Carmita Wood was “about everything the situation of women was really about” but that the existing law of sex discrimination made difficult or impossible to address. She sent a copy of the letter to Underwood, suggesting it might make a good exam question—one that asked, “How is this sex discrimination?” since the harassment described in the letter involved “conditions of work, not hiring, firing, promotion and other clear thresholds.”
At about the same time that law students were preparing for exams, in Ithaca a group calling itself Working Women United, growing from the work of Farley, Meyer, and Sauvigné to help Carmita Wood, was preparing what would become the first large-scale discussion of “sexual harassment.”
THE WORKING WOMEN UNITED speak-out in Ithaca, on May 4, 1975, brought 275 women together on folding chairs in a local gymnasium, beneath battered basketball hoops, to listen as about twenty women, including Carmita Wood, retold experiences with sexual harassment. Although galvanizing for the organizers of the new institute, the speak-out itself did not reach far beyond the gym walls. Some women had spoken with no agreement for making their testimony public, and in any event the institute would not manage for half a year to complete a transcript.
Word spread thanks largely to a reporter for the New York Times, Enid Nemy, whose interest was piqued thanks to an initiative of Eleanor Holmes Norton. As soon as Norton moved from the ACLU to the rights commission in 1970, and as she was preparing to teach her first course on women and the law at NYU, she began to organize a governmental hearing on women’s rights, probably the first in America. For a new set of hearings in late April of 1975, Norton’s commission invited Lin Farley to give testimony on sexual harassment. That caught the attention of Nemy, who in her years as a reporter doing interviews had heard, “continually but peripherally,” women’s stories of being grabbed in offices or denied promotions after declining to go on dates with supervisors, usually from women who viewed it as one of the “penalties you paid for being a woman in the workplace.”
During the summer after the speak-out, Nemy conducted follow-up interviews, and her article of late August in 1975 quoted numerous women describing sexual harassment. A Cornell student spoke of being pawed while working as a waitress to put herself through college, explaining that because you need the tips, “you aren’t in any position to say ‘get your crummy hands off me.’ ” An employee in the personnel department of Ithaca College said that she had encountered problems in every job she had held, beginning with babysitting when “husbands taking me home would make passes at me.” A nurse at a university hospital called sexual harassment “a working condition between doctors and nurses.” A woman who had trained briefly in commercial real estate told of being propositioned by a superior who, after she refused him, told her she would be “sorry” and worked to end her training as a realtor. Nemy’s retelling in the New York Times broke new ground, for, as she heard from the president of the National Association for Women, “sexual harassment is one of the few sexist issues that has been totally in the closet.”
Nemy’s reporting also showed that it was coming out of the closet. Eleanor Holmes Norton told her that the Commission on Human Rights was working on sexual-harassment language to be included in all the city’s affirmative-action agreements. Early drafting read as follows: “respondent agrees to afford protection to male and female employees alike against unfair abuse of sexual privacy.” If Norton’s legal pioneering made her actions unsurprising, the same could not be said for the director of the Unemployment Division of the New York State Department of Labor—the division whose hearing officer had refused unemployment benefits to Carmita Wood on the grounds that she had quit her job for “personal non-compelling reasons.” Did the Department of Labor indeed believe that someone who quit her work in response to sexual harassment had quit “without good cause”? Speaking to Nemy of the New York Times, the boss of the hearing officer declared that sexual harassment, if proven, was “good cause for leaving a job.”
Although Nemy’s article went a long way toward giving sexual harassment a national name, it indicated how far sexual harassment remained from gaining a clear place in the law. The article did not appear with the legal news of the Times. It appeared in the “family/style” section. The only legal case Nemy mentioned, involving the two women in Arizona who charged that their boss had subjected them to sexual advances, was thus far a loser. Legally, what could turn the tide from losses toward victories? The New York labor director sounded sympathetic about sexual harassment, for example, but he wanted proof. Nemy’s article showed that much legal work lay undone.
In the fall of 1975, as MacKinnon re-enrolled in Yale Law School—this time for a full law degree—she read Nemy’s article and read also the first issue of a newsletter from Working Women United, called Labor Pains, which arrived in her Yale mailbox. Its headline announced, “Speak Out Draws Tears and Anger.” Inside the newsletter an article by Carmita Wood described poignantly what she had experienced when she decided to “become a public figure involved in an issue that has only been whispered about.” In words suggesting she had not imagined what she was getting into, she acknowledged, “It’s rough,” and continued,
Inside myself there was fear, self-doubt, and insecurity. I asked myself if I really had the courage to go through with it. Would it affect my family and friends? Would people look at me with disgust and scorn? Would they think I had made the whole thing up for some obscure reason of my own? Would it affect any future employment I might try to get? Would anyone else support me in this issue except my closest friends and the immediate group of women I was already working with?
To all the questions above, Carmita Wood continued, the answer was yes.
In law school, MacKinnon decided to begin an independent project (“supervised analytic writing,” as Yale called it, working with the guidance of Professor Thomas Emerson) that would attempt to develop a legal theory of sexual harassment as sex discrimination. Although MacKinnon hoped that her law school paper might directly help Carmita Wood, when MacKinnon called Karen Sauvigné in the fall, she learned that the final attempt by Working Women United to help Wood get unemployment benefits had been rejected. Wood could still appeal to federal courts, but at Working Women United there was, as MacKinnon penned in her copy of Labor Pains, “not energy to appeal.”
In the paper that she titled “Sexual Harassment of Working Women: A Case of Sex Discrimination,” MacKinnon set out to tackle the two halves of the title in sequence. First, through dozens of pages, she depicted the harassment, drawing on information from Working Women United, from Enid Nemy’s article in the New York Times, and from her own interviewing of women around her. Second, she began to argue the case that such harassment—far from constituting “a natural sex phenomenon” or revealing “the subtleties of an inharmonious personal relationship”—was illegal discrimination. MacKinnon’s challenge was to shape the law of sex discrimination to address the facts of sexual harassment. To make her case, MacKinnon devoted much early effort to a version of the challenge that Ruth Bader Ginsburg had taken on in her brief for Sally Reed: reveal the linkages between illegal racism and still-legal sexism. But MacKinnon re-entered that old discussion with a new insight, which would emerge as her drafting proceeded: that forms of discrimination the Supreme Court had treated as neutral and ruled legal led, in fact, to what MacKinnon called women’s “disadvantagement.”
The law against discrimination, she pointed out, “has emerged as a response, however inadequate, to the demands by black people for legal equality as a means to social equality.” In the process of creating that law, she continued, “courts have been brought to see that many practices are unquestionably racist, practices which they allow to persist in their corresponding sexist forms.” As an example, MacKinnon proposed a corporation that “hired only blacks for positions which, as a persistent side-component, required personal services such as making coffee for the white superiors” or running personal errands for white superiors. No court, she argued, would hesitate to condemn this hiring pattern as racially discriminatory. Similarly, no court would hesitate to condemn a corporation that, for aesthetic reasons, dressed blacks—and only blacks—in busboy uniforms. But, she continued,
How many employers, by contrast, hire women for their “aesthetic” appeal in Playboy bunny-type outfits? To further unpack these “aesthetics,” should it be all right if employers just find women behind typewriters “prettier to look at” than they would men?
“Does this mean,” MacKinnon asked, “that being looked at (for a start) by the boss (male) is part of what many women are hired for?” The courts’ current acceptance of sexism, she pointed out, paralleled their older acceptance of racism.
Like Ginsburg and her students, MacKinnon found a stunning resemblance between old legal racism and enduring legal sexism. On one page, MacKinnon juxtaposed three legal opinions that showed remarkable continuity in phrasing:
Old sexism (from Bradwell, Illinois, 1869):
That God designed the sexes to occupy different spheres of action, and that it belonged to men to make, apply, and execute the laws, was regarded as almost axiomatic truth.
Old racism (from a miscegenation case, Virginia, 1959):
Almighty God created the races white, black, yellow, Malay and red, and He placed them on separate continents. . . . The fact that He separated the races shows that He did not intend for the races to mix.
Modern sexism (from a public assistance case, Oregon, 1970):
The Creator took care of classifying men and women differently, and . . . we are not prepared to say that the classifications thus made were without good reason.
A continuity stood out in the minds of judges: that God had separated men from women, just as he had separated whites from blacks. But a discontinuity was also clear—judges had decided to act against racism. MacKinnon’s goal was to pose a primary question: why had judges dropped the language of divinely ordained spheres in matters of race but not sex? Put another way, what permitted judges, now repudiating old racism, to persist in modern sexism?
These questions recalled early efforts by Ruth Bader Ginsburg. What led judges to refuse to scrutinize sex discrimination with the same level of suspicion that they directed at race discrimination? What led the Supreme Court to reject Ginsburg’s arguments that sex, like race, be a “suspect category,” and thus that sex discrimination be subject to “strict scrutiny”? The questions also recalled the pregnancy fiascoes experienced by Wendy Webster Williams and Ruth Weyand. What led the Supreme Court to decide that discrimination against pregnant women was not discrimination against women? MacKinnon was setting out, in part, to find a way to address the problem that had stopped Ginsburg from reaching her goal.
What began to emerge in MacKinnon’s law school paper was a complex argument about what judges saw when they saw discrimination. Because discrimination law “emerged as a response . . . to the demands by black people for legal equality as a means to social equality,” that law became in origin, MacKinnon argued, “a substantive law on blacks: shaped by their social experience, tailored to the effects of racism and the history of slavery, and applied only in a limited way to other groups.” Substantive law, a key phrase in MacKinnon’s paper, meant law that saw not just form but substance, law that saw not just discrimination (which could seem neutral, as when one discriminates vanilla from chocolate) but disadvantagement.
As a classic example in which the Supreme Court saw discrimination without disadvantagement, MacKinnon pointed to the famous Plessy case of 1896, in which the Court upheld as constitutional the segregation of blacks and whites into “separate but equal” railroad cars. The Court’s nineteenth-century majority refused to recognize that separation was a badge of disadvantage, that separate might mean not equal but subordinate. It argued that a law which makes “merely a legal distinction”—that is, which merely discriminates or merely separates—“has no tendency to destroy the legal equality of the two races.” Plessy’s argument, the opposite of substantive, asked not about substance but about form. Seeing only form, the Supreme Court saw no inequality.
But in race cases, eventually, such arguments for formal equality failed. Even in Plessy in 1896, the failure was prefigured in Justice Harlan’s famous dissent, which MacKinnon quoted:
Everyone knows that the statute in question had its origin and purpose, not so much to exclude white persons from railroad cars occupied by blacks as to exclude colored people from coaches occupied by or assigned to white persons. . . . No one would be so wanting in candor as to assert the contrary.
As MacKinnon recognized, Harlan was rebuffing the formal argument: the argument that each side is merely discriminated between, that neither is discriminated against. Harlan answered with a substantive argument: socially, everyone knows that being black has meant being excluded, and such exclusion is part of what the Thirteenth Amendment to the Constitution sought to prohibit when it forbade practices that impose “badges of servitude.”
Although the Supreme Court had long refused to apply the Thirteenth Amendment to women, women could use—and had used, beginning with Ginsburg in Reed—the Fourteenth Amendment’s guarantee of equal protection of the laws. Under the Fourteenth Amendment, MacKinnon argued, the concept of “suspect classification” had functioned as a substantive classification for blacks. Because race was a “suspect classification,” judges scrutinized lines drawn by race with the suspicion that they should be illegal. Had Ginsburg succeeded in her efforts to make sex also a suspect classification, women would have benefited from the Court’s helpful suspicion—a perspective that carried a sense of substance. But the courts had rebuffed Ginsburg, leaving the law with a neutral presumption about sex discrimination—a presumption not of suspicion but of rationality. Discrimination against women was acceptable if it was, to use the most common test, not “arbitrary.”
The word arbitrary had come to pervade the law of sex discrimination. Like the notion of “similarly situated,” it had arrived when Chief Justice Burger, in the Reed case, took the hook that Ginsburg had baited with Royster Guano. Following the language she had given him from that obscure fertilizer case from the 1920s, the chief justice had ruled that when a government makes a classification that draws a line between men and women, that classification
must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.
Thanks to Ginsburg’s ingenious introduction of Royster Guano into Supreme Court decisions on sex discrimination, the low-level standard of what is reasonable had been defined and thus raised toward what eventually became called “intermediate-level” scrutiny. But when the Court rejected Ginsburg’s effort to raise the level as high as she wished, to strict scrutiny and suspect classification, the law of sex discrimination was left with the language of Royster Guano, and particularly two concepts: similarly circumstanced and not arbitrary. And quickly those concepts had become crucial to all cases of sex discrimination.
Combined, those two concepts meant that a woman who complained of sex discrimination had to prove she was treated less well than similarly circumstanced men; if she was a typist, to use an example of MacKinnon’s, she needed to prove she was treated worse than male typists (if her company employed male typists). And once she had proved her treatment was worse, she must prove it was also arbitrary—not based on, say, the fact that she typed eighty words per minute while the company’s average (or only) male typist could type eighty-five. No court would rule unlawful a company’s desire for faster typists. But what, MacKinnon asked, if the company’s bosses desired to look at “pretty/attractive” typists? Would this mean, as MacKinnon asked, “that being looked at” by a boss “is part of what many women are hired for?”
MacKinnon’s question about a starting point for sexual harassment became far from hypothetical when combined with Paulette Barnes’ experience with her government supervisor and then with the district court. Making the first federal court decision on sexual harassment (but not using that term), the court ruled in effect that Barnes’ problem arose from being attractive. It ruled that she was discriminated against “not because she was a woman, but because she refused to engage in a sexual affair with her supervisor” whom she had attracted. Though the court judged his behavior inexcusable, it judged his behavior was not sex discrimination because it did not “evidence an arbitrary barrier to continued employment based on plaintiff’s sex.” That crucial formulation imbedded both key components—arbitrary and similarly situated—of what MacKinnon was critiquing as a search for equality in form but not in substance, a search for “formal equality.” Losing her job (what the judge called hitting “an arbitrary barrier to continued employment”) was not based on sex, thought the judge, because no man was similarly situated to Barnes: no man had attracted her male boss and then refused the boss’s advances. And losing her job was not arbitrary because the barrier to her employment was purposeful, created not for all women but for one woman, by her boss, for the purpose of getting that woman into bed (or out of a job)—and she could choose.
Sex discrimination law, as analyzed by MacKinnon, seemed ridiculous. To bring a claim of sex discrimination, a woman must prove she is situated similarly to some man but treated differently—and arbitrarily differently. The worst joke came in pregnancy cases which,
because of the physical impossibility of men getting pregnant, make clear the inadequacy of “arbitrariness” logic to comprehend that disadvantagement of pregnant people is disadvantagement of women.
Here emerged MacKinnon’s answer to questions about the Supreme Court’s blindness to both pregnancy discrimination and sexual harassment. Question: What had led the Court to decide that discrimination against pregnant women was not discrimination against women? Answer: Because no men were similarly situated to women, no discrimination existed between similarly situated men and women—between, that is, pregnant men and pregnant women. Question: Why had the Court failed to see that sexual harassment was a form of sex discrimination? Answer: So long as only women were attractive to male bosses, no discrimination existed. Using its arbitrariness approach, typified by Justice Stewart’s “pregnant women” and “nonpregnant persons,” the Court could see sexual harassers as merely distinguishing between attractive women and nonattractive persons. (Don’t we all, a judge might wonder, make such distinctions?)
As an improvement to this arbitrariness approach—and as the goal of her paper on sexual harassment—MacKinnon advanced a method to scrutinize sex discrimination that she called a disadvantagement approach (and in later years would call a dominance approach). The disadvantagement approach was not formal but substantive. As MacKinnon saw it, the arbitrariness approach turned on whether a practice (excluding, for example, pregnant women from health benefits) differentiated arbitrarily between citizens who were similarly situated (women who were pregnant and men who were similarly pregnant). Pushing beyond such absurdity, and pointing to other substantive recognitions in the law such as Justice Harlan’s vision that discrimination imposes “badges of servitude,” MacKinnon proposed a disadvantagement approach that “turns upon whether the practice or rule disadvantages one sex and not the other.”
Using this approach, a court would ask simply, If pregnancy benefits are denied to women, “will any man himself ever be disadvantaged?” The answer would be clear: men did not suffer but women did. Under MacKinnon’s approach, an instance of disadvantage because of pregnancy or sexual harassment in the workplace, if proven, would become illegal discrimination under Title VII. Judges would scrutinize sex discrimination (including harassment) that, like race discrimination (including harassment), for too long had both sustained and relied upon a workplace hierarchy that MacKinnon condemned, as she concluded her law school paper, as “separate and subordinate, not equal.” Without such a major change in thinking, however, the law’s support of sex discrimination would leave judges where they had once been with race. Although what MacKinnon called “judicial participation in the subordination of blacks” had been recognized and repudiated, what remained alive and well was judicial subordination of women.
JUDICIAL CONSIDERATION OF on-the-job harassment of women remained in its early stages in the autumn of 1975 as Catharine MacKinnon, in her first term studying for a JD at Yale Law, continued working on her draft. No federal court opinion had used the term sexual harassment. In the same months, lawyers for Paulette Barnes, using the term sexual blackmail, were preparing for oral argument in the first harassment case to reach a court of appeals. MacKinnon kept working on her paper during Yale’s Thanksgiving and Christmas holidays that year, even when she traveled to her parents’ home in Washington and to her father’s chambers in the Court of Appeals for the District of Columbia, where, although at first she had not realized it, Barnes had been scheduled for argument.
Researching a paper on a topic unrecognized by law posed problems. To find federal cases on a legal topic such as assault, a law student could go to shelves of fat books called West’s Federal Practice Digest. Because West assigned “Key Numbers” to key terms such as assault and battery, a student flipping through pages could find hundreds of cases. But sexual harassment had no West Key Number. One day that fall, Judge MacKinnon told his daughter that his courthouse had received a new and expensive machine, called Lexis, which could search for any words that appeared anywhere in legal opinions.
Catharine MacKinnon could imagine the possibilities of Lexis. On a day when almost no one was working in her father’s courthouse, perhaps the Friday after Christmas in 1975, he led her out the back door of his chambers. Carrying her law school draft, she entered the back door of the court’s library, which was being remodeled. In a closet-sized room with its floor still torn up and its lights incompletely wired, she found a just-installed Lexis terminal.
On December 17, Barnes was argued. It had been screened in advance and assigned to the court’s summary calendar—used for cases that the screening judge felt were less important and deserved less time than cases on the regular calendar—by Judge Spottswood Robinson III. After the argument, Catharine MacKinnon heard that its three-judge panel, not announced in advance, included her father. When he led her to Lexis, he knew that she was doing research on issues related to Barnes and harassment but, as she recalled years later, “that was all he knew” about her paper.
Although she had never used a computer, MacKinnon started to figure out how this machine could help her find cases she might have missed. When she typed in sexual harassment, nothing came back. So MacKinnon tried phrases like sexual advances and employment. She tried sexual abuse at work and other variations.
Suddenly a young woman in a dark suit appeared, standing in front of her. To MacKinnon she looked professional, with soft dark curls, prominent eyes, and beautiful skin, pinkish in the cheeks. The woman said she worked with Judge Robinson. MacKinnon guessed she was a law clerk.
Then she said, as MacKinnon recalled, We understand you’ve written something on this subject that nobody around here knows anything about—this sexual byplay at work, when the woman doesn’t want it.
Neither MacKinnon nor the clerk mentioned Barnes. MacKinnon remembers the woman asking, If somebody is making sexual advances to a woman at work, can that be sex discrimination?
Yes, said MacKinnon, I think it is.
The young woman asked, Do you have anything written? We can’t find anything on it.
MacKinnon would always remember what happened next. She picked up her only copy of her paper, a sheaf an inch or two deep, thinking, If she loses it, I don’t have a copy. MacKinnon said the draft was only partially done.
Whatever it is, the young woman said (in words MacKinnon would long recall as verbatim), “it’s got to be more than we’ve got.” The woman said she would make a copy and return the paper. To MacKinnon, handing over her paper felt like giving away her baby to a stranger.
MacKinnon had not started writing her paper just for school. She was writing it for the real world. “This is my shot,” MacKinnon thought. “I’m taking it.” The young woman carried off the paper. MacKinnon never saw her again. The paper came back in an envelope, handed to her by her father. They didn’t discuss it, and he seemed to have received it without explanation via his secretary. As for the views of Judge Spottswood Robinson, whom her father and other colleagues on his court often called “Spotts,” Catharine MacKinnon would wait many months before hearing his opinion about sexual harassment and Paulette Barnes.
JUDGE SPOTTSWOOD W. ROBINSON III was the child of a successful lawyer and businessman in Richmond, Virginia, who enrolled in Howard Law School in 1936, planning to get his degree and return to legal practice with his father. Those modest goals paled beside those of his dean: Charles Houston, graduate of Amherst College and Harvard Law, one of approximately a hundred black lawyers in America who had a degree from a first-rank law school. Appointed a decade earlier to give new life to Howard Law, Houston had dropped the number of degrees granted by the school from fifty-eight in the early 1920s to eleven in 1933 and raised the school’s level. Houston drove his students ferociously, and with a goal beyond making them great lawyers. He had taken over at Howard in an era when the law continued to discriminate shamelessly against blacks, when state laws still restricted Negro voting, when courts could exclude blacks from sitting on juries, and when federal courts still endorsed segregated schools, restaurants, and trains. In the words of one Howard graduate, the new goal of Howard Law under Houston was “to learn how to bend the law to the needs of blacks.”
Robinson arrived at Howard Law a year after Charles Houston moved from his deanship to become special counsel to the NAACP while remaining the law school’s behind-the-scenes inspiration. The day Robinson put his foot in the door of Howard Law, he would later realize, was the turning point in his life. Charles Houston became his idol. At Howard, Robinson showed the habits of hard work and attention to detail that would stay with him the rest of his life. He would graduate in 1939 with the highest grade-point average in the history of Howard Law.
After briefly joining his father’s law practice, he returned to Howard Law to teach and to join the effort to end segregation in America. With another Howard graduate, in 1943 he created a Virginia firm devoted to fighting for civil rights. By the early 1950s, as Brown v. Board of Education was heading toward the Supreme Court, perhaps only Thurgood Marshall, as head attorney for the NAACP, had spent significantly more time working for school desegregation than Spottswood Robinson.
Robinson had also become a brilliant legal writer, full of passion that may have been heated at least slightly by the experience of getting turned away from segregated lunch counters as he traveled for legal work in the South. When the time came in late 1953 to give a final polish to the NAACP’s 235-page brief to the Supreme Court in the pivotal segregation cases that became Brown, Robinson provided that polish. And when a series of NAACP attorneys went before the Supreme Court to make the winning arguments in the Brown case, Robinson presented the first argument.
In 1964, after spending four years as dean of Howard Law, Robinson became the first black judge on the United States District Court for the District of Columbia. In 1966 he became the first black to serve on any federal court of appeals—the court for the DC circuit, on which he distinguished himself for the extraordinary scholarship of his opinions and came to be known as “Mr. Footnote.”
So when Catharine MacKinnon handed over her draft, full of linkages of legal racism to legal sexism, to someone she understood worked with Judge Robinson, she was apparently sending it to the judicial chambers of one of the most brilliant advocates in the history of the American battle against race discrimination.