Early on a series of mornings in January of 1995 at the Supreme Court, I unlocked a massive door leading to a ground-floor corridor. Ahead stretched doors with names including Ginsburg, O’Connor, Rehnquist, Souter, and Scalia. These were rooms where justices could store documents. I walked to the door marked “Ginsburg,” unlocked it using a key that I had borrowed from the justice’s chambers, and entered a windowless room. Nine paces long and five paces wide, with dim fluorescent lights suspended from high ceilings, it resembled an abandoned squash court.
Documents from some of Justice Ginsburg’s earlier court cases filled some of the seventeen file cabinets along the far right wall, I understood. Justice Ginsburg had told me not to look in them.
Each morning I turned instead to the near left corner and a mustard-colored cabinet, full of letters and briefs that Ginsburg had saved from her days as an attorney trying to improve the law for women. To take notes, I had brought a Macintosh Powerbook 100. The room had one table and one electrical outlet, both far away. Each morning, I moved the table to the files. From my briefcase I pulled out two extension cords, which combined to give me electricity to type.
Each day, I also brought a sandwich for lunch and snacks for dinner. I could continue to work, we had agreed, so long as I did not impose on Justice Ginsburg’s chambers, far upstairs. My key, needed to enter the room but not to lock it closed, was on loan to me each day from one of the justice’s staff members, Gerald Lowe, who usually left the building by six o’clock in the evening. So long as I had his key, I could leave and re-enter the room, and I did occasionally, because the restrooms were a few corridors away. After he retrieved his key around six, I was permitted to stay in the room as long as my stamina lasted. I usually left near midnight.
The research in that Supreme Court cell, like many other moments of privileged research that made this book possible, I owe to generosity that I will always find remarkable and impossible to express adequate thanks for. A few months earlier, in the chambers of Justice Ginsburg at the Supreme Court, as part of an interview, we had been talking in the late afternoon after her staff had gone home. I had already interviewed former students and friends of hers from the days when she was Professor Ginsburg at Columbia, and I had read many files from the archives of the American Civil Liberties Union, kept at Princeton. Late in our conversation, Justice Ginsburg said, more or less: for you to do this book as well as you seem to wish, you need access to my files. And so I wound up working late on many nights in her storage room, often with a ravenous appetite.
Similar early conversations led to time in some of the most fascinating repositories of memory I have entered: A long night in Pat Barry’s law office south of Los Angeles. Long study in Catherine East’s basement in suburban Virginia. Days with Catharine MacKinnon’s files, some of which had become nests for mice. Laptop note-taking in Wendy Williams’ files in a caged space within Georgetown University Law Center’s parking facility, where exhaust fumes filled my head with pain.
Sometimes I had to ask people if they would ship their files to me so that I could copy them. Sometimes I simply drove away with files. I had heard about the files of Ruth Weyand, hero of the pregnancy cases, from everyone who ever saw her Washington office. Her friends recalled myriad file cards describing strategies for each injustice Weyand hoped to attack. But a few years before I started reporting, Weyand had driven off a road in Colorado, and people supposed that her files were lost. With the help of her daughter, Sterling Weyand Perry, I finally found them in a shack near the Maryland shore, in a summer community begun in the 1800s by descendants of Frederick Douglass.
Just after Sterling Perry and I arrived, and before I could get a look at the files, Ruth Weyand’s grandchildren announced to their mother that the crabs were running, and all four of us—Perry, her two children, and I—wound up barefoot in a creek that drains from a backwater marsh into the Chesapeake Bay. Swinging nets, next to about a dozen of the Weyand family’s neighbors, we loaded up with crabs. Back at the shed, I loaded up with Weyand’s pregnancy files, packing them into cardboard boxes from a nearby food market and filling my station wagon—except for space on the front floor, where I put a brown paper bag holding a few delicious-looking Maryland crabs. As I was starting the car to drive six hours north to New Haven, Connecticut, I tried to thank Sterling Perry enough for her generosity. What she said was, roughly (in a rare instance, I was not taping or taking notes): Well, you know, Harvard asked for those files, and Columbia asked for those files. But you’re from Yale, and you came to the door. (Months later, I shipped all the files back to her.)
Help for this book started, chronologically, with Catharine MacKinnon, before I imagined writing the magazine article for the New York Times Magazine from which this book eventually began. At Yale Law School in 1990, when MacKinnon came to offer her last course in her wandering years as a visiting professor before she was finally offered tenure by the University of Michigan, I walked a couple of blocks from my office to check out the first class in her thirteen-week course. As I entered the room, I could feel a buzz of anticipation.
MacKinnon began speaking, and class time flew. She talked about the course’s expectations: Anyone who raises a hand gets called on. You can write “about your own life, as it pertains to this course, as it will.” You can write in your own voice; don’t act “like you’re nobody, from nowhere.” About the law, she added, “I remain unreconstructed in the view that law is about the world.”
It was one of the best opening classes I had heard, and I returned for the next session. The buzz had grown louder. This time I sat with an old friend, a former English professor who had shifted to the study of law. She leaned toward me, just as MacKinnon was about to speak, and said, “I love her hair.” My jaw dropped, no word came, MacKinnon’s voice filled the room, and class accelerated.
As it ended, I decided I should ask MacKinnon’s permission to keep attending. Anyone can listen, she said, but who are you? I said I taught writing at Yale and also reported for magazines, and that one reason I wanted to visit her course was that I might try to write something about what she was teaching. She said that I was always welcome in the classroom, and that everything she said was public, but that she would probably not help me. She said she was particularly uninterested in any writing that was primarily about her rather than about her work. Eventually she helped a great deal as I reported an article that became “Defining Law on the Feminist Frontier” in the New York Times Magazine of October 6, 1991. It received a small award from the American Bar Association and a critique from some attorneys, particularly Professor Nadine Taub of Rutgers, who said that women’s fight to redefine law was a bigger battle than the article showed. This book is partly an acknowledgment of her challenge.
At an early stage in this reporting, a magazine editor who had sent me on assignments that involved different challenges—dodging soldiers at Tiananmen Square in China shortly after the shootings there, sitting atop a scared humpback whale off the eastern shore of Canada, hiking across miles of Russian wilderness—asked me a question about this book. “Shouldn’t they,” he asked, “get a broad to write that book?” In the months that followed, as I worked with litigators, arranged interviews, and hunted for documents, it struck me that only one guy ever asked a question like that. I owe many people thanks for welcoming me as I worked on this project.
One of the great pleasures of this book came from times when I had the chance to hire one of the students I had taught at Yale—usually for five or ten hours to look for a few documents, sometimes at the Library of Congress. I’m truly honored to have known those students (some of them now journalists or attorneys) in a classroom and beyond: Vanessa Agard-Jones, Karen Alexander, Ellen Barry, Allison Battey, Emily Bazelon, Katherine Bell, Abigail Deutsch, Jodie Esselstyn, Eve Fairbanks, Alison Henyey, Karen Jacobson, Suzanne Kim, Katherine McCarron, Catherine Olender, Jennifer Pitts, Megan Pugh, Ann Sledge, and Jada Yuan. Two of my former students, Josh Civin and Margo Schlanger, clerked for Justice Ginsburg while this book was in progress; although I never asked them for information, their presence made me feel a bit less of an outsider at the Court, and I want to thank them.
For guiding me toward understanding about the legal issues covered by this book, I am indebted to the many attorneys and others whom I interviewed. They are listed in this book’s endnotes, our hundreds of hours of interviews remain vivid to me, and I cannot thank them enough.
I also benefited from many other guides who helped me understand the work of women to reshape the law, and they include Barbara Babcock, Guido Calabresi, Deborah Cantrell, Beverly Blair Cook, Karen Davis, Nancy Davis, Norman Dorsen, Christine Durham, Catherine East, Betty Ellerin, Cynthia Fuchs Epstein, Brenda Feigen, Linda Garbaccio, Lillian Garland, Tita Gratwick, Sandra Grayson, Marcia D. Greenberger, Kent Harvey, Ann Branigar Hopkins, Phineas Indritz, Marian M. Johnston, Rhoda Karpatkin, Linda Krieger, Brian Landsberg, Cecilia Lannon, Jane Larson, Donna Lenhoff, Judith Lichtman, Karen Malkin, Linda Marchiano, Deborah L. Markowitz, Douglas McCollam, Margaret Moses, Donna Murasky, Colleen Patricia Murphy, Aryeh Neier, Helen Neuborne, David Oppenheimer, Kathleen Peratis, Charles L. Reischel, Deborah Rhode, Spottswood Robinson IV, Bernice Sandler, Patricia Schroeder, Joseph Sellers, Reva B. Siegel, David Silberman, Anne E. Simon, Nancy Stanley, Nancy Stearns, Gloria Steinem, Nadine Taub, James A. Thomas, Gerald Torres, Laurence Tribe, Jim Turner, Barbara Underwood, Eileen Wagner, Rosalie Wahl, Mary Roth Walsh, Jonathan Weinberg, Sarah Wilson, and Diane Zimmerman. In Justice Ginsburg’s chambers I appreciated enormously the help of Gerald Lowe, Linda O’Donnell, and Cathy Vaughn. All the excellent guidance that I have requested and received may not have averted all error, I fear, and I would like to give thanks in advance to readers, many of them far more expert in the law than I will ever be, who are willing to write me to correct any factual errors that may linger in the text; my email address is strebeigh@aya.yale .edu, and paper mail may be sent via the publisher.
I received invaluable help at libraries and document collections, and I wish to thank the following: at the Barnard Center for Research on Women, Alison Cummings; at Boalt Hall Library, Alice Youmans; at Harvard Law School Library, David Warrington; at Howard University’s Moorland-Spingarn Research Center, Joellen ElBashir; at New York University, Deb Ellis and Carole Sparkes; at the Minnesota Historical Society, Tracey Baker; at the National Archives and Records Administration in New York City, Martin Rosenberg; at the Seeley G. Mudd Manuscript Library of Princeton University, Paula Jabloner; at the Supreme Court Library, Sara Sonet; at the Supreme Court public information office, Kathy Arberg, Yolanda Sanders, and Ed Turner; at the United States District Court in Washington, DC, Vernell Marshall and Ted Raymond; at University of Pennsylvania libraries, Cynthia Arkin; at Yale University libraries, Gene Coakley, Jo-Anne Giammatei, Sarah Prown, Ken Rudolf, Fred Shapiro, and Lisa Spar.
When parts of this book appeared in magazines, I was helped enormously by the generous editing of Katherine Bouton at the New York Times Magazine, Lincoln Caplan at Legal Affairs, and Kate Marsh and Dayo Olopade at the New Republic.
For the editing of this book, I’ve had the great good fortune to work with Amy Cherry at W. W. Norton, whose insights and ongoing commentary played a role in shaping every page. In working with Norton I’ve also gained from the guidance of Erica Stern and the copy editing of Mary Babcock. I’ve been fortunate to have as my agent Liz Darhansoff, of Darhansoff, Verrill & Feldman, an agent who reads and comments at all stages of a project including, in the case of this book, suggesting what became its title.
My start on this book may have begun earlier than I know, when my father, a graduate of Columbia Law School, died before I was born. My mother then left the only place she knew well, New York City, to move the two of us to a twelve-family town in New England where she could find work as a teacher in a nearby grade school that would welcome us both, with me enrolling at age three. The school let me repeat for two years in its first-year class, called nursery school, so that my mother could begin a teaching career. That special education, and my mother’s boldness on an unfamiliar path, influenced me to a depth that I probably can’t convey or comprehend.
My greatest good fortune has been the chance to live for decades with one of the best readers and minds I know, Linda Peterson, who has taken moments away from such tasks as chairing Yale’s English Department to engage in fine battles over this book’s diction and direction. I love her totally.
—Fred Strebeigh,
New Haven, Connecticut, Spring 2008