To the Supreme Court
As soon as the Supreme Court decided in early October of 1985 to hear the case of Mechelle Vinson, Pat Barry began asking for more help, and attorneys around the country responded. Many thought Vinson was an awful case—plagued by factual voids (no transcripts) and factual confusions (hypothetical facts)—with which to introduce the issue of sexual harassment to the Court. They sought to avert disaster.
The attorneys needed someone to coordinate their efforts. The task went to Sally Burns, who, from her base as assistant director of the Sex Discrimination Clinic at the Georgetown University Law Center, could bring together a wide range of important attorneys working on women in law. Burns’ boss at the clinic, for example, was Susan Deller Ross, who had been drawn to the law center by one of her closest friends, Wendy Webster Williams, now professor of law at Georgetown. Further, Burns had been friends with Catharine MacKinnon since their days as law students.
In Burns’ view, Bork’s dissent represented his deliberate choice to hook the Court with a case that could seem to involve a “bad woman”—one whom a trial judge seemed to have found was lying about at least her willingness to have sex (if not about having had sex at all). In choosing a bad-woman case, Burns supposed, Bork was choosing a case that exemplified his “world view”: Here was a woman who voluntarily engaged in sex and then, when it went bad, sought vengeance. And, thanks to the existence of important federal law against discrimination, this vengeful woman had (in Burns’ view of Bork’s dissent) “been afforded the opportunity to make a federal case out of a failed relationship.”
Burns began holding meetings with allies who could assist by writing supporting briefs as amici curiae—Latin for “friends of the court,” but really legal friends of Vinson and Barry. Since the bank would also have its amici (Latin plural, masculine), Pat Barry began to think of her allies as the amicae (Latin plural, feminine).
JUDGE ROBINSON HAD RELIED HEAVILY on the guidelines of the Equal Employment Opportunity Commission in deciding for Mechelle Vinson. In October of 1985, word reached Barry and her amicae that the EEOC leadership was preparing to attack Judge Robinson’s opinion.
The EEOC seemed divided. First, its general counsel, Johnny J. Butler, prepared the groundwork for what the EEOC could be expected to do: support Robinson’s opinion and reject the claims of the bank. But Robinson’s opinion was quickly countered by one of the EEOC’s five commissioners, Rosalie Gaull Silberman. In a long memo to the commission, chaired by Clarence Thomas (who would join the Supreme Court in 1991), she argued that the EEOC should have “one overriding objective: to support our guidelines and their fundamental proposition that sexual harassment is a violation of Title VII.” Silberman then made explicit a considerable fear: if the Supreme Court repudiated the claim of Mechelle Vinson, it might simultaneously repudiate the EEOC guidelines. Silberman offered a crisp strategy: attack Judge Robinson’s opinion to save a limited version of the guidelines.
Robinson’s opinion, Silberman argued, “relies upon what I believe is a misconstruction of our guidelines.” As part of her strategy to “clarify” the guidelines, Silberman urged a variety of special protections for the employer—particularly in what she called “private, one-on-one ‘environment’ cases.” Word spread quickly that the EEOC might, in a striking departure from its norms, support the employer against the employee. One headline, in the Daily Labor Report of October 29, 1985, read, “Controversy Builds at EEOC over Upcoming Sexual Harassment Case.”
Silberman’s willingness to defend employers in “environment” cases aligned with little-known work by Clarence Thomas before he became EEOC chair. As a member of a transition team created in 1980 by President-elect Ronald Reagan, Thomas coauthored a report criticizing the sexual harassment guidelines created by Eleanor Holmes Norton. Focusing on environmental harassment, his report argued that “the elimination of personal slights and sexual advances which contribute to an ‘intimidating, hostile or offensive working environment’ is a goal impossible to reach. Expenditure of the EEOC’s limited resources in pursuit of this goal is unwise.” It added that environmental harassment “undoubtedly led to a barrage of trivial complaints against employers around the nation.”
One attorney at the EEOC who apparently tried to defend the guidelines in discussion with Clarence Thomas was his special assistant, Anita Hill. Soon after she joined the EEOC in 1982, unaware of Thomas’ work for Reagan’s transition, she was asked to review the EEOC’s official stance on sexual harassment. The subject resonated (as the nation would learn in 1991 from her testimony during Thomas’ hearings for confirmation to the Supreme Court). In earlier work as his assistant in another government post, according to Hill, he had pressed her to have a social relationship, and she declined. Her working relationship, she would testify,
became even more strained when Judge Thomas began to use work situations to discuss sex. . . . His conversations were very vivid. He spoke about acts that he had seen in pornographic films involving such matters as women having sex with animals and films showing group sex or rape scenes. . . . On several occasions, Thomas told me graphically of his own sexual prowess. . . . My efforts to change the subject were rarely successful.
According to Hill, whose testimony was mostly denied by Thomas, such pressure stopped before they both moved to work for the EEOC. Nonetheless, Hill would later recount in Speaking Truth to Power, preparing to defend the guidelines concerning environmental harassment to Clarence Thomas made her feel “as though I had been dipped in a vat of scalding water. . . . I was flooded with embarrassment at my own experience.” Culminating her review, in 1982 Hill met with Thomas. Not mentioning vivid conversations from the past, she urged him to support long-standing EEOC policy and guidelines. Thomas “grumbled and muttered,” Hill recalled. Nonetheless, she understood that he was accepting her recommendation.
Years of the Reagan administration sniping at claims of sexual harassment apparently found, in 1985, a precise target in the case of Mechelle Vinson. At the end of October, the EEOC’s five commissioners, chaired by Clarence Thomas, met in closed session. In a vote said to be 3–2 by the Daily Labor Report, the EEOC decided to support the bank and oppose Vinson. For longtime watchers of the gyre of gender discrimination law, such as Donna Lenhoff of the Women’s Legal Defense Fund, the decision seemed part of the administration’s long-expected attack. Lenhoff heard that staffers for both Silberman and Thomas had lobbied other commissioners to support the bank. For Vinson’s case, the commissioners’ vote meant that the EEOC, on whose guidelines Vinson’s slight success had rested, would now oppose her.
THE BRIEF OF THE UNITED STATES and the EEOC against Vinson tracked much of Bork’s dissent. First, it treated the relationship between Vinson and Taylor as consensual and praised the lower court for seeking to “ensure that sexual harassment charges do not become a tool by which one party of a consensual sexual relationship may punish the other.” Second, the government brief sought to minimize the impact of a hostile-environment complaint by insulating employers from responsibility. Speaking of “the naturalness, the pervasiveness, and what might be called the legal neutrality of sexual attraction (as opposed to racial prejudice),” it praised Judge Bork for seeking to limit employer liability. It quoted Judge MacKinnon, in his concurrence from Barnes, that it is not always easy to discern “the distinction between invited, uninvited-but-welcome, offensive-but-tolerated, and flatly rejected sexual advances.”
Pat Barry, reading the government brief for the EEOC, grew livid. Where the government began to explain how the term agent technically (based on the common-law history of tort law) might not apply to Sidney Taylor, she wrote in the margin, “I really despise this intellectual dishonesty.”
Writing the brief for Mechelle Vinson became, at Barry’s request, MacKinnon’s task. Working in early 1986 in her rented cabin, affiliated professionally with only a study center at Stanford University called the Institute for Research on Women and Gender, which gave her stationery but not money, MacKinnon began writing the Supreme Court brief on the law she had begun trying to define in law school.
As MacKinnon drafted, she remained hamstrung by the lack of a transcript, which Judge Penn had denied on the grounds that Vinson’s appeal did not raise a “substantial question.” Worse for MacKinnon, money could talk. Fragments of transcript, dramatically incomplete, had been created for the bank at the court of appeals. They contained, for example, what Vinson said when she was being grilled, on cross-examination, by the attorneys for the bank and Sidney Taylor. But they omitted what she said before that in her direct testimony—an omission that undercut Vinson along with the context for her cross-examination.
MacKinnon insisted to Sally Burns and other amicae that they needed all the testimony. A full transcript would cost up to $3,000, which a well-paid lawyer might have earned in three days. Vinson’s underfunded amicae held a benefit concert at a club called Tracks, with contributors chipping in a dollar at the door. Burns tossed in more from her own pocket, getting the total to $650—enough to pay a typist for another batch of fragments. As MacKinnon’s deadline loomed, many of those fragments still hadn’t arrived. With about two weeks to go and still low on transcripts, MacKinnon kept typing.
In mid-January of 1986, Barry received an almost-full draft one day and then a day later, before she had time to respond, another draft, utterly revised. MacKinnon’s emerging brief, to Barry’s delight, flashed with outrage. Barry read with glee the draft’s attack on her bête noire, Judge Penn’s hypothetical finding that if there was sex it was voluntary. How might one know, MacKinnon’s brief asked, “that, if a sex act which may or may not have occurred, occurred, the woman did consent to it”? The doubling of occurred was vintage MacKinnon, mixing classical rhetoric (parenthesis and epistrophe) with sass. Penn’s hypothetical, MacKinnon continued,
is a metaphysical riddle, not a factual finding. It is nothing other than a ruling that this is a woman who would have wanted it, whether it happened or not. As such it is not a finding of fact, it is an assassination of character.
While the hypothetical expresses Judge Penn’s point of view about Vinson, MacKinnon continued, “it fails to enlighten reviewing courts about what Mr. Taylor did or did not do to her.” Barry was delighted. In the space beneath the words did or did not do she wrote, “Yea!” and then, doubly underlined “Catharine!”
As new bits of transcript reached her, MacKinnon strengthened her brief’s evidence that Barry had indeed argued a case of environmental harassment to Judge Penn. And indeed, here and there within the emerging transcript, MacKinnon found Barry’s fruitless efforts to convince Judge Penn to consider “acts of discrimination against other women in the environment,” as Barry put it, or “the daily environment . . . encountered whenever Mr. Taylor was . . . in that office.”
Barry pushed MacKinnon to use the transcript to “hit the court with the facts of the case” in order to break down what she called, in a hand-scrawled note of February 1, “everyone’s (bank & friends) cavalier treatment of case as ‘love-affair-gone-sour-let’s-get-even’ case.” A few sentences later, along similar lines, Barry continued:
Don’t you think we need a powerful fact statement and then rant & rave in our argument portion? I realize and acknowledge chauvinism of Bench, but they surely want to know what happened—actually happened—to Vinson.
She added in closing, “I remain optimistic.”
In mid-February, MacKinnon’s brief reached the Supreme Court. It began indeed, as Barry had urged, by using new bits of transcript to hit hard with the “facts of the case” as told by Vinson and several co-workers:
40 or 50 episodes of undesired and traumatic sexual intercourse . . . , bleeding and infections, inability to eat or sleep normally, loss of hair . . . , [bleeding] from the vagina for weeks . . . , threats of reprisals, including against her job . . . , [coworkers’ testimony that] they had seen Mr. Taylor sexually accost, abuse, and handle Ms. Vinson at work, that she repeatedly asked him to stop, and that she appeared upset by it.
At the same time that she hit with the facts, MacKinnon hit with the absence of facts. She argued that the Supreme Court should, even at this late date, simply send the case back to a lower court for fuller findings of fact. To buttress this argument, MacKinnon offered a catalog of uncertainties, including the hypothetical finding of fact (if there was sex it was voluntary) that, she charged, “finds no facts at all.” MacKinnon sought to turn Judge Penn’s vexing “fact,” which Judge Robinson strove to swerve around in order to justify a review, into a non-fact—a reason for the Supreme Court to send the case back down.
MacKinnon also attacked the bank’s concluding efforts to limit employer liability and thus to turn sexual harassment into second-class discrimination. Trying to distance the realm of sexuality from the realm of discrimination, three times in its two concluding paragraphs, the bank’s brief had spoken of sexual activity as special in nature. Sex, insisted the bank, was special because it was “generally secretive” and often “welcomed, desirable, and proper.” The bank asked, Did sexual harassment have any place in the law of Title VII? Based on the same specialness, the bank said no.
MacKinnon excoriated the bank for claiming that “sexual activity is special” in order to “render sexual harassment an injury especially difficult for victims to prove.” And she pounced on the effort to blur forced sex with welcome sex.
Whatever specialness inheres in sex, it inheres in sex freely chosen. To the degree that freely chosen sex is special, forced sex violates that specialness. Sexual harassment by definition is never wanted. If it may be said to be special at all, it is especially abusive. Yet both the bank and their amici conflate unwanted forcible sexual initiation with welcome friendly suggestions. They equate forced sex with all sex, implying that if wanted sex has value, forced sex must also, a value to be recognized by special legal exemption. The value of something freely done, like philanthropy, does not undermine the culpability of the same act when it is forced, as with theft.
One deep fear, MacKinnon continued as her brief neared conclusion, “seems to be that if a woman can sue for forced sex at work, there will be no voluntary sex at work. . . . In this view, if women are given legal backing to decline unwanted advances, the only future will be an ‘entirely asexual’ workplace.” The end of sex, she told the court, was not imminent. Ironically, in challenge to the bank, she asked,
If an employer can be sued for culturally biased acts and epithets, can cultural holidays not be celebrated and discussed? With all respect, it is difficult . . . to believe that if forced sex is actionable, voluntary sex will become too big a risk to take.
MacKinnon then turned to a problem that had worried Pat Barry from her first days on the case: Mechelle Vinson may have said no to sex, and Mechelle Vinson may have resisted. But finally, she said, she had failed to make her refusal effective.
What made this case unusual, Catharine MacKinnon continued, was that Vinson differed from most women who,
once forced to have sex, are too humiliated and intimidated to complain. The result is that most reported cases of sexual harassment involve victims who were able successfully to resist. Unless rectified, this can mean that if a perpetrator can render a working situation sufficiently coercive to force the woman to have sex, by whatever means, he can then get away with anything.
Stigmatized for having yielded to coerced sex, women such as Mechelle Vinson suffered what MacKinnon called “the vicious paradox that some of the least of sexual harassment’s victims are the most likely to sue, leaving some of the most injured of women effectively outside the ambit of judicial relief.” Privately, Catharine MacKinnon had a shorter phrase for this vicious paradox: “if you’re fucked, you’re fucked.”
WITH UNDER THREE WEEKS LEFT before oral argument, scheduled for March 25, Pat Barry arrived at Georgetown law school to face two days of “moot court,” a practice session familiar to most law students and appellate advocates. In what amounted to a dress rehearsal for a major drama, Barry’s role was to play herself, making her oral argument to the Supreme Court. Acting the roles of justices—set to probe and test and interrupt her, to push her argument in all its weakest places—were some of the nation’s smartest analysts of sexual harassment law, including MacKinnon, and many of her amicae: Carin Clauss of the University of Wisconsin and formerly of the Department of Labor, Debra Katz of the Conference of Labor Union Women, and Sally Burns and Wendy Webster Williams of Georgetown University Law Center.
Hovering over many of the amicae was the awful Rehnquist decision in Gilbert, which had declared that under Title VII one could legally discriminate against pregnant women without discriminating against women in general. What if Rehnquist built on that ruling? What if he declared that sexual harassment, like pregnancy discrimination, was not illegal sex discrimination? What if he suggested that amorous men, following Stewart’s template, distinguished attractive women from unattractive persons? Would Barry be ready to handle a tricky inquisition from Rehnquist and his allies?
As Barry began her presentation, a shock hit her assembled amicae. Barry had prepared no argument. She had been “doing a lot of self-sabotaging,” as she said later, “like I didn’t have an oral argument ready when I went to moot court.” This approach came partly from her sense that some of the amicae wanted a more experienced advocate to take the lead at the Supreme Court. Months earlier she had declined an offer from Professor Laurence Tribe of Harvard to assist with her brief, saying in a letter to him that she would write it herself, although she eventually handed that responsibility to MacKinnon.
Barry began her moot-court argument before the simulated justices. She cited one case as precedent, and the justices asked her to distinguish it from other cases. She couldn’t. She tried arguing on the basis of California law—but this was a federal court. They fired more questions. To some of the assembled amicae, Barry’s performance was terrifying.
Vinson understood that the rehearsals were awful. She heard that the experts were pushing Pat to surrender the argument. Pat’s “mannerisms” weren’t appropriate for the Supreme Court, Mechelle Vinson recalled hearing, and Pat wasn’t able to “present herself.” As a consequence, recalled Vinson, Pat “was paranoid, and I was paranoid. I was calling her and she’s uptight and there’s no money, and, you know, a lot of things going on. . . . Then I say, my camp is falling all around me again, all falling down.”
After the moot court, some amicae urged that Laurence Tribe should argue the case. Another suggestion was Professor Carin Clauss of Wisconsin. Barry, unsure whether to cling to arguing before the Supreme Court, talked to her mother. She asked friends, Should she give up the case? She asked another lawyer, and he told her, Look Pat, if you think you can do it, you can do it. Did she think she could do it? Well, she wanted to do it—partly for the glory and excitement—to stand up there, all alone, before the Supreme Court justices, trying to defend her client and to shape the law. She thought to herself, she would recall later, that the amicae wanted Tribe to do the oral argument and wanted themselves to sit at the Supreme Court counsel table, and then they wanted finally that “Mechelle and I would be eternally grateful to them. And I said, ‘No, noo, noo, I want to argue it.’”
Unnerved after the grilling at Georgetown, Barry got help from an attorney who had helped her before her earlier Supreme Court appearance. They staged another moot court to ensure that Barry was better prepared to face the justices.