3

Frontiero Brings Hopes

Ginsburg’s new role as head of the Women’s Rights Project of the ACLU meant that she could now search for ideal cases. But she also inherited cases that the ACLU already had played some role in. At the same time that she first heard about the Wiesenfeld case, two ACLU cases were approaching their climactic moments in the Supreme Court.

Both cases concerned discrimination against women in the military, but Ginsburg gave priority to the case of Susan Struck. As an Air Force nurse serving in Vietnam in 1970, Struck had become pregnant at a time when an automatic rule required discharge of pregnant service members. This rule evidently could hurt women more than men.

Although the government encouraged her to have an abortion (before the Supreme Court’s affirmative ruling of 1973 in Roe v. Wade), Struck refused: she was Roman Catholic. Instead, she told her superiors, she would bring her baby to term, using leave time that she had accumulated to give birth. She would immediately put her baby up for adoption. Although Struck’s pregnancy seemed sure not to damage her work, the Air Force ordered Struck discharged for “moral or administrative reasons.”

The ACLU in the state of Washington, where Struck was based after leaving Vietnam, challenged the Air Force’s pregnancy rule as discriminatory but lost in both the district court and the court of appeals. Despite these losses, the ACLU won court orders to keep Struck from being discharged, and she proceeded as she had planned with the pregnancy and adoption.

As the case approached the Supreme Court, Ginsburg was prepared to attack the Air Force rule on both its “moral” and “administrative” grounds. If the ground was moral, Ginsburg wanted to know, why wasn’t the father discharged? And if the ground was administrative, what was gained by discharging Struck, who had not asked the Air Force to grant her more time than it already owed her? Other service members who needed medical treatment, for such conditions as alcoholism and drug addiction, were routinely granted special medical leaves, often for absences far lengthier than Struck’s.

Struck’s case seemed ideal to Ginsburg, the next step in educating the Court about prejudiced views of women. In her less restrained moments, Ginsburg considered opening her brief as follows: “Captain Struck indulged in the wrong form of recreation in Vietnam. Had she been a drug addict . . . , or an alcoholic. . . .”

In Struck, Ginsburg saw utter irrationality. But after she filed her brief, disaster hit. The Air Force, although it had won each battle so far, received instructions not to fight this last one. It was told to make a one-person exception (much as the Army had made an exception for Nora Simon and much as the IRS had hoped to make an exception for Charles Moritz) and thus avoid facing Ruth Ginsburg. It waived Susan Struck’s discharge and allowed her to continue work, thus making the case, in legal language, moot: since Struck would have no complaint, the controversy would die.

The Air Force’s attorneys had little choice but to retreat from this battle, because the instruction came from the commanding officer of all attorneys in the government: the solicitor general of the United States. This particular solicitor general, already legendary, had by 1972 served as solicitor general under Lyndon Johnson, who appointed him, and Richard Nixon, who, unable to do better, kept him. He was on his way toward making more arguments before the Supreme Court than any man alive.

This solicitor general apparently saw that his office and the Air Force, combined, would lose to Ruth Bader Ginsburg. He knew her. He was Erwin Griswold, legendary also as dean for decades of Harvard Law. He was the man who in 1956 had invited her to his home to ask her why she was taking a man’s place in law school.

WITHOUT STRUCK, GINSBURG HAD JUST ONE CHANCE to influence the Court in its 1972 term. Sharron Frontiero was a woman in the military facing clear discrimination, but her case lacked emotional pull. At issue was not a baby but money.

A lieutenant in the Air Force, Frontiero was supporting her husband while, with the help of the GI bill, he attended college near her military base in Montgomery, Alabama. Under Air Force regulations, she would have been automatically entitled to extra pay for their housing had she been a married man. But for a married woman, military rules awarded extra pay for housing only if her husband could prove he was “dependent” on her—which Sharron’s husband was by most common-sense definitions, since her $8,200 a year provided more than three-quarters of their household income. But the military definition demanded that a husband be dependent on her for over one-half of his support. Since both Frontieros were thrifty and since the GI bill gave him a bit more than $200 a month, his monthly expenses of $354 failed to reach the military’s cutoff for dependency. Thus Lieutenant Frontiero did not meet the standard for an extra housing allowance—a standard no male lieutenant would have needed to meet because the military assumed that a wife was “dependent.”

With the help of antidiscrimination lawyers from the small-but-famous Southern Poverty Law Center in Alabama, Sharron and Joseph Frontiero challenged the Air Force in federal district court, alleging that it denied them the “equal protection of the laws” and thus violated the Constitution of the United States. They lost. The military’s different treatment of men and women, said the court, had a “rational basis.” This military rule passed the easy test.

When the center decided to appeal Frontiero to the Supreme Court, its caseload was being handled by a single lawyer, Joseph Levin. To ease his load, he asked Mel Wulf for ACLU help in trying to get the Supreme Court to hear the case. Wulf agreed, with an understanding that the ACLU would have primary responsibility for Frontiero in the Supreme Court and that any oral argument would be handled by Ruth Ginsburg.

After Ginsburg’s jurisdictional statement convinced the court to hear Frontiero, she began work toward a brief and oral argument intended to push the next step toward strict scrutiny. Then, three months before Frontiero would be heard in the Supreme Court, Levin announced a change of mind: he wished to argue the case. For him and his colleagues at the Southern Poverty Law Center, it was a first chance to argue before the Supreme Court; they had “grown very attached to this particular case.”

Ginsburg answered Levin with one of the least characteristic letters of her life. She viewed herself, she made clear, as “not very good at self-advertisement,” and her letter proved it. Nonetheless, she insisted, the ACLU had done its work in Frontiero with the “express understanding” that the Women’s Rights Project would supervise the case at the Supreme Court and that Ginsburg would argue it.

As Ginsburg continued, her attempt at self-advertisement foundered on her modesty. She tried to state her claims through the opinions of others: Levin must know, she said, that she had developed “some understanding of the knowledge of the women’s rights area.” Even male colleagues who once resisted the idea that men might not make the best sex-discrimination attorneys now appreciate “the importance of argument by a woman attorney in a case of this significance.”

Levin was not swayed. He had agreed, he conceded, that Ginsburg would handle the oral argument. But now he reneged—though not, he insisted, from any “chauvinistic” desires.

THE LATE LOSS OF CONTROL left Ginsburg and the ACLU to prepare an amicus brief, making her argument that sex like race was a “suspect classification” and deserved the Court’s “strict scrutiny.” This new brief was the direct descendant of what she saw as the parent briefs that she had written for Moritz and Reed. But the Frontiero brief possessed one enormous advantage: thanks to Chief Justice Warren Burger, it could now cite the language of her Reed brief, even the language of Royster Guano, now enshrined as law.

The split between Levin’s and Ginsburg’s briefs, which called attention to disagreement even among Frontiero’s supporters, would become still more evident at oral argument when the team would split again: Levin would get twenty minutes to argue about rationality, and Ginsburg would then add ten minutes of her theory.

When the day arrived for oral argument at the Supreme Court, Levin was ready. Clearly an experienced advocate, he proved more than adequate to the sort of questioning that had derailed Allen Derr in Reed. For the first four minutes he sustained his argument unbroken before encountering his first interruption, a query about the relation of “earnings levels” to “dependency.” Deftly turning the question to his advantage, Levin reminded the court that Sharron Frontiero brought in $8,200 and her husband only $2,800—numbers that, regardless of military definitions, revealed who depended on whom. In the next few minutes, questions came often: Did the Frontieros’ case apply only to civilian spouses? Did Levin’s income figures come from a “median head count of Armed Forces males”? Was the military 98 to 99 percent male? Was Sharron Frontiero’s claim about equal rights or just about extra money? Such interruptions inevitably broke the flow of Levin’s argument, but he artfully steered his answers back to the main line of his argument: that the tough test of strict scrutiny was appealing but unnecessary for his case; that an intermediate test would suffice; and that given such a test, the military’s preferential treatment of men would surely flunk. Then late in his section of the argument, as he was getting into a rambling answer to yet another question, Levin suddenly realized he was squandering Ruth Ginsburg’s promised minutes. “I have used more time than I should have,” he announced abruptly, and cutting off his ramble, he introduced “Professor Ginsburg.”

She stood at the counsel table, just before two o’clock on the afternoon of January 17, 1973, to make her first argument before the Supreme Court. For the shy Ginsburg, in only the second courtroom argument of her life, this was an uneasy moment. At lunchtime she had been so nervous she had not eaten; she feared she would throw up.

“Mr. Chief Justice, and may it please the Court,” she began, in the traditional formalism of oral argument, “Amicus views this case as kin to Reed v. Reed.” With Reed in play, Ginsburg was on her home field. She could now make her case for Frontiero with the language of Royster Guano, the language that Chief Justice Burger injected from Ginsburg’s brief into his Reed opinion: the preferential treatment of men lacked “a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike.” This was the language of her test that sounded easy but was, in fact, intermediate. Thanks to its articulation of that test in Reed, she continued, the Court could now proceed to the tough test—the test that subjected sex discrimination to strict scrutiny—without making any “giant step.”

In the Harvard Law Review two months earlier, she reminded the justices, Professor Gerald Gunther, the eminent constitutional scholar and author of a renowned law school casebook on constitutional law, had commented that Burger’s decision in Reed had begun legitimating an intermediate test. Burger’s decision, said Gunther, could not be explained without imputing to the Court “some special sensitivity to sex as a classifying factor,” without “importing some special suspicion of sex-related means.” Put another way, the Court’s “special suspicion” prepared the way for declaring sex a “suspect classification” and thus subjecting it to “strict scrutiny.” (She did not mention that Gerald Gunther, by then at Stanford, had been the professor at Columbia who fought to get Ginsburg her first clerkship after judges such as Frankfurter and Hand had refused to consider a woman.)

As she advanced into her argument for strict scrutiny, her early nervousness faded. She turned her attack to her principle opposition, the brief defending the military’s sex discrimination, filed for the government of the United States by Solicitor General Griswold. That brief conceded, she said, that the principle characteristic invoking strict scrutiny was present as much in sex as in race: a “visible and immutable biological characteristic,” in the words of the solicitor general’s brief, “that bears no necessary relation to ability.”

(In quoting this concession, Ginsburg was referring to the work of her old dean. A few weeks before, however, without so much as a note of warning, Griswold had heard via the radio that Richard Nixon had replaced him by appointing, as his new solicitor general, a conservative but relatively unknown Yale professor named Robert Bork.)

But this generous concession was mere preface to the government’s argument against strict scrutiny for sex discrimination, to which she now turned. The Fourteenth Amendment, the government had argued, had a historic purpose: to respond to discrimination not by sex but by race. But “suspect classification,” Ginsburg noted, had since been extended to discrimination on the basis of national origin and alien citizenship. The Court had been able to extend strict scrutiny even to the new immigrant to America, she continued, although surely “the newcomer to our shores was not the paramount concern of the nation when the Fourteenth Amendment was adopted.”

As Ginsburg continued her argument, her listeners pondered the odd silence of the justices. Seated next to her at the counsel table, an ACLU colleague named Brenda Feigen began to wonder why the Court had asked no questions. Seated far behind her in the packed gallery of the court, Martin Ginsburg began to worry if the justices were just letting her go through the motions in a direction that held no interest.

Still uninterrupted, Ginsburg swung to attack other arguments that sex discrimination did not deserve close scrutiny. To the government’s allegation that women are a majority, she responded that numerical majority may not confer political force, since “the numerical majority was denied even the right to vote until 1920.” To its allegation that classification by sex does not imply women’s inferiority, she ran through a history of such discriminations that the Supreme Court had upheld in past years: excluding women from professions as various as lawyering or bar-tending, from overtime pay, and from such basic responsibilities as jury service. Such discriminations have a common effect, she said: “They help keep woman in her place, a place inferior to that occupied by men in our society.” Ginsburg had done what her students, including the radicals from NYU, had noticed long before. In her quiet way, because she always had her facts in place, she could sound utterly logical and reasoned while, in fact, making the most radical statements.

Still uninterrupted by any of the Court’s nine brethren, Ginsburg concluded by quoting Sarah Grimke, the nineteenth-century abolitionist and advocate for women’s rights, choosing words that might have been applicable to her own precise but somewhat unpolished speaking style: “She spoke, not elegantly, but with unmistakable clarity. She said, ‘I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.’ ”

For almost ten uninterrupted minutes Ginsburg had made her case to the Supreme Court. Leaving the Court with Brenda Feigen at her side, Ginsburg asked, Had something gone wrong? Her young colleague could only insist they were mesmerized. She would have been less sure had she seen the notes of Justice Blackmun, who gave Ginsburg a grade of C+ followed by the words “very precise female.”

WHEN THE JUSTICES GATHERED two days later in conference, the highly secretive gatherings to which not even law clerks are admitted, Ginsburg’s concept of strict scrutiny apparently played no part. The key question, as always, was whether to affirm or reverse the lower court. Thus the main discussion focused on whether this case was indeed “kin to Reed”? If it was close kin, the Court should affirm, but if it was essentially unrelated, the Court could reverse.

As always in conference, the chief justice began the discussion, to be followed by the associate justices in descending order of seniority. Chief Justice Warren Burger opened by telling his brethren that Frontiero had “nothing to do with” Reed and that Frontiero had “enormous” implications for the armed forces. The military, insisted Burger, perhaps imagining a day when women might wish to end their exclusion from military combat, “has the right to draw lines” between men and women. The chief voted to deny benefits to the Frontieros, affirming the lower court.

Speaking second, William O. Douglas, the famous liberal, then in his thirty-fourth year on the Court, portrayed this as an issue of “equal protection,” a case in which the word his should be understood, generically, “as including ‘her.’ “Arguing as usual against the new and conservative chief, he voted to reverse. Third, William Brennan, Douglas’s ally in many equal protection cases over the years, argued that Reed and Frontiero were undistinguishable, nearly twins in legal terms, and that thus the Court’s decision for Sally Reed mandated a similar decision for Sharron Frontiero. He too voted to reverse, making the vote 2–1 for Frontiero.

Fourth came Potter Stewart, appointed by President Eisenhower and a powerful vote at the center of the Court (neither predictably so conservative as the chief nor so liberal as Brennan and Douglas). On Frontiero, he weighed in with the liberals. “This provision on its face,” he said, “is grossly discriminatory” and “constitutionally invalid.” He would vote to reverse. Byron White, more conservative than Stewart but also at the Court’s center, then introduced a new notion: discrimination against men. The provision, he said, “discriminates against men married to women in the service.” He also voted to reverse. At this point, the vote stood 4–1 for Frontiero, with one more vote needed for victory (but still no votes for strict scrutiny).

Next came one of the Court’s great liberals, Thurgood Marshall, who just two decades before as a litigator had led the NAACP to its landmark antidiscrimination victory in Brown v. Board of Education. But Marshall was far from a sure vote for Frontiero’s allegation of sex discrimination. Months earlier when the justices considered whether to hear Frontiero’s case at all, Marshall had voted to affirm the lower court and reject her appeal. But now, after hearing oral argument, Marshall was inclined to switch his vote and, albeit tentatively, to reverse.

The next three justices—all appointed by Richard Nixon as part of his effort to make the court more conservative—seemed likely to join their chief in voting against Frontiero. Harry Blackmun, however, inclined with some uncertainty toward reversal. Lewis Powell, like White seeing a form of “discrimination against men,” voted for reversal. That left only William Rehnquist, the formidable new conservative presence on the Court—added to the Court after Nixon feinted toward nominating a woman in a move resisted fiercely by Chief Justice Burger and described by Nixon at the time (recorded on White House tapes that stayed unavailable for three decades) as merely a “screen.” Closing the discussion with an argument closely allied to the chief’s opening—that this was not really an equal protection case, since the government was entitled to treat different claims differently—Justice Rehnquist voted against Sharron Frontiero.

One significance of the 7–2 vote in conference was that it had gone not just for the Frontieros but also against the chief justice. Whenever the chief was with the majority, he assigned the writer; when the chief was in a minority, however, the assignment was made by the senior justice in the majority, Justice Douglas.

Throughout the conference, Douglas had been scribbling notes about everyone’s views and votes. At no point had he made any notation of the phrases that mattered so significantly to Ginsburg—no mention of “suspect classification” or “strict scrutiny.” Ginsburg’s unbroken argument seemed to have gone unheard.

Douglas assigned the opinion to his frequent ally, Brennan, and within a month Brennan had circulated a draft opinion following what he understood to be his instructions from the conference: to rule for the Frontieros for the reasons stated in Reed, and to do so, as he wrote in a memo to his colleagues, “without reaching the question whether sex constitutes a ‘suspect criterion’ calling for ‘strict scrutiny.’ ” But Brennan had been strongly influenced by Ginsburg’s argument. And as he circulated his memo, he suggested the Frontiero case might just offer what he called “an appropriate vehicle for us to recognize sex as a ‘suspect criterion’”—to accord it strict scrutiny.

Brennan had been counting votes, and he supposed that besides his own, he could get at least three votes for “strict scrutiny.” Thurgood Marshall had begun arguing that, much as Ginsburg had claimed in oral argument, the Reed decision went beyond the easy “rational basis” test, and Byron White was inclined to agree, as was William O. Douglas. Brennan needed just one more vote, and he wanted it from Potter Stewart, who had just sent around a memo on equal protection that Brennan found hopeful.

Two weeks after his initial draft opinion, Brennan circulated a revision. In bold terms it made an announcement:

We hold today that classifications based upon sex, like classifications based upon race, alienage, or national origin, are inherently suspect, and must therefore be subjected to strict judicial scrutiny.

Douglas, White, and Marshall joined his opinion immediately.

But would Potter Stewart become, in the argot of the Court, a “fifth vote”? While Brennan waited for Stewart’s response, he received instead a strong counterattack from Lewis Powell. Powell had planned to vote for Frontiero so long as the decision went no further than Reed. But for him this new draft, in which he told Brennan, “You have now gone all the way,” was an unjustifiable giant step.

In a memo to all the justices, Powell laid out an argument tuned to its time. Then on the minds of the nation was the most important women’s rights legislation since the granting of the vote in 1920: the proposed equal rights amendment, the ERA, passed overwhelmingly by Congress in 1972 and under consideration by the legislatures of the states—thirty-eight of which were required to adopt it to make it an amendment to the Constitution. Its key language was simple and direct: equality of rights under the law shall not be denied “on account of sex.” Some legal experts opposed it on the grounds that its passage was unnecessary—an argument made by William Rehnquist while serving as assistant attorney general for the Nixon administration. In contrast, a majority of state legislatures by 1973 supported the ERA, as did Ruth Bader Ginsburg. She viewed it as a step beyond an original and discriminatory understanding of the framers of the Constitution: “Were our state a pure democracy there would still be excluded from our deliberations women”—as Thomas Jefferson had put it, she pointed out. She viewed the ERA also as a rejection of the sort of “sharp legislative lines between the sexes” that she continued needing to fight in cases such as Frontiero.

The national debate, argued Powell’s memo, should limit the Court:

My principal concern about going this far at this time . . . is that it places the Court in the position of preempting the amendatory process initiated by the Congress. If the Equal Rights Amendment is duly adopted, it will represent the will of the people accomplished in the manner prescribed by the Constitution. If, on the other hand, this Court puts “sex” in the same category as “race” we will have assumed a decisional responsibility (not within the democratic process) unnecessary to the decision of this case, and at the very time that legislatures around the country are debating the genuine pros and cons of how far it is wise, fair and prudent to subject both sexes to identical responsibilities as well as rights.

Thus Powell turned the existence of ERA legislation into a weapon against Ginsburg’s argument for equal rights. Using the fact that Congress had acted, Powell sought to recast Brennan’s opinion—even though it aligned with congressional intent—as a failure of judicial restraint, a preemption of the role of Congress, and an attack on the separation of powers as constructed by the Constitution. If only Congress had not initiated an amendatory process, his argument suggested, then the Supreme Court might have felt free to make amends: to correct long-standing discrimination.

Powell admitted that he had doubts about strict scrutiny because, as he enigmatically said, “Women certainly have not been treated as being fungible with men (thank God!).” But for now all that he insisted was that a congressional move toward equal rights precluded a similar judicial move: the existence of the ERA (not yet approved by thirty-eight states) precluded the court from going “all the way” to strict scrutiny.

Three days later, Stewart’s long-awaited memo reached Brennan. It agreed generally with Powell but left room for Brennan: it committed Stewart, as yet, to no opinion.

Brennan, still hoping, drafted a strong response to Powell and sent it to all the justices. It argued that what Powell called the “will of the people” was already expressed: the ERA had won overwhelmingly in Congress and had won a majority of state legislatures. The fact that resistance in merely thirteen state legislatures could kill the ERA should not stop the Supreme Court from correcting what most of the nation saw as a century of injustice. Furthermore, as Brennan’s proposed opinion made clear, Supreme Court justices had helped create that injustice one hundred years earlier when they opined that restricting women meant following the “law of the Creator.” Now is the time and this is the case, Brennan argued to Powell, for the Supreme Court to correct its long-standing error by taking “the ‘suspect’ approach” to discrimination against women.

Justice Potter Stewart, Brennan’s target, stood apparently unmoved. (Or perhaps, as would be reported a few years later by Bob Woodward and Scott Armstrong in The Brethren, he had failed to talk Brennan into a compromise: if Brennan would hold back from strict scrutiny in the Frontiero case, Stewart would join him in the next such case. In any event, no compromise emerged.) The next day Stewart circulated a memo saying that though he would vote for Sharron Frontiero, he would not step beyond the decision in Reed.

What exactly the decision in Reed meant would remain unclear. The same day that Brennan lost Stewart’s vote, he received the first memo on Frontiero from Chief Justice Burger. After watching what Burger called the “shuttlecock” memos flying back and forth about what Reed meant, Burger finally chimed in: “The author of Reed,” he said, referring to himself, “never remotely contemplated such a broad concept” as strict scrutiny. “But then,” he added, “a lot of people sire offspring unintended.”

Whatever Reed did mean, it ruled. Brennan’s push for haste had won no gains and brought clear costs: it hastened Stewart’s commitment against strict scrutiny (or at least so Ginsburg supposed), and it led Powell to publish his argument (joined by Burger and Blackmun) that the Court must, in deference to “the will of the people,” watch from afar as the ERA met its fate.

The politicking within the Court remained mostly hidden from Ginsburg, but she could tell how close she had come. She heard rumors that Stewart had wavered. She heard also that Stewart, speaking with Harvard students in March, in the same weeks that Brennan was trying to win his vote, sounded disinclined to strict scrutiny, whether originating in the Court or the ERA. As reported by the Harvard Law School Record, after wondering aloud why women pushed for the ERA, Stewart argued that under existing law “the female of the species has the best of both worlds. She can attack laws that unreasonably discriminate against her while preserving those that favor her.”

When the Court’s opinions appeared in May, Ginsburg saw that the only explicit dissent came from Justice Rehnquist, whom Nixon had added to the Court the same day as Powell. Powell’s published response to Brennan was labeled a “concurrence”; it agreed that the Indiana law was unconstitutional, but only on the limited grounds established in Reed. In that concurrence, Ginsburg saw strong evidence that Brennan once had imagined he could win Stewart’s fifth vote for strict scrutiny.

The evidence appeared in what amounted to a typo that slipped through unrevised. Powell’s published response attacked not just an opinion of Brennan but the opinion of “the Court”—which, as Powell put it, “has assumed” the responsibility “to preempt by judicial action a major political decision.” Ginsburg’s sharp eye saw where this evidence pointed: Powell had written in opposition to what he thought would be a Brennan victory.

What Ginsburg could not know, because she did not have access to the internal memos between the justices, was that the key weapon against her effort for equal rights had been, ironically, the existence of the equal rights amendment. Its passage by Congress in 1972 now provided a rationale in 1973 for Supreme Court justices to resist ending legal discrimination against women.

THE CASE GINSBURG HOPED would bring the Supreme Court to her side was Wiesenfeld—the case of Paula and Stephen and Jason. Only three weeks before her Supreme Court argument in Frontiero, she had first talked to Stephen. To her, Wiesenfeld was the perfect case: discrimination against both woman as wage earner and father as parent, and discrimination that even harmed a baby, who was left with greater hardship if the parent lost was female rather than male. But before she could get Wiesenfeld to the Court, she had to face a disaster: the case of Melvin Kahn.

Ginsburg’s goal had been a well-planned litigation campaign. Indeed Reed and Frontiero, though they reached the ACLU by chance, gave the appearance of deftly orchestrated first steps. Meanwhile, the ACLU’s network of affiliates across the nation—such as the Washington Civil Liberties Union, which originated Struck—searched to help the ACLU find cases addressing issues that were, in Ginsburg’s phrase, “ripe for change.” Equally important, the ACLU worked to avoid cases that were likely to fail and, worse, make bad law. As a result, the ACLU had an ironclad rule. Although ACLU affiliates could bring cases independently, ACLU rules forbade bringing a case to the Supreme Court without first checking with the national office.

In the autumn of 1973, while Ginsburg’s Columbia students were preparing the case of Stephen Wiesenfeld, Ginsburg learned that the Supreme Court had decided to hear a case that she thought could make very bad law. She heard not through any of the ACLU’s special channels, but through the newspaper of the legal community, Law Week. When she called the attorney who was bringing the case, he shocked her. “You’re from the ACLU?” he said, as she later recalled. “I did this as an ACLU case.” The case involved Melvin Kahn, a Florida widower who opposed a Florida law that gave a tax break worth about $15 a year to widows but not to widowers. His argument superficially resembled Wiesenfeld: a government was denying a benefit to a man based on sex rather than on need. But Kahn sought only to help men.

A few days later the Florida attorney, Bill Hoppe, sent his short jurisdictional statement to Mel Wulf. As Wulf skimmed through the short statement, next to one paragraph he wrote, “Egad!”:

Today a woman is fully emancipated; Amendment XIX, U.S. Constitution. Their ability to enter all aspects of community life is virtually complete. A man’s loss at the death of his spouse is equal to that of a woman although the woman’s loss may move us more.

What to say? That the Nineteenth Amendment gave the vote, not emancipation?

As it happened, Hoppe asked for help. His enclosed letter reported that his Supreme Court brief was due in forty-five days, that he didn’t know what it needed beyond what he put in his jurisdictional statement, and that he “would appreciate any help and advice you can give me on this matter.” For Ginsburg, the Kahn problem was now her problem.

Among the flaws in Melvin Kahn’s case, some were less obvious than others. For one, it was a state tax case, and many Supreme Court decisions had granted states “large leeway” in shaping their tax systems. Less obviously, the tax break sought to help poor widows, a group with special resonance for a member of the Court whose vote Ginsburg needed: William O. Douglas, one of Brennan’s four votes in Frontiero for strict scrutiny. At age six, Douglas saw his mother left destitute by the death of his father, a rural preacher. Douglas and his slightly older sister tended yards, washed store windows, and picked fruit to earn the dimes and nickels that they brought home to their mother and that, as he recalled, “often meant the difference between dinner and no dinner.” Douglas was unlikely to deny leeway to a state that wanted to give special help to widows.

Bringing a case that looked like a loser, Ginsburg sought to avoid back stepping from whatever point Reed and Frontiero had reached. She decided not to discuss sex as a suspect classification and not to urge strict scrutiny.

From the moment Ginsburg stepped to the Supreme Court lectern to open her oral argument for Kahn, she could tell things were going badly. The lectern was too high; she had to lower it.

When she had barely begun, she was hit with her first question from the bench, a quibble about what had or had not been alleged by Kahn’s attorney in his Florida trial. Skillfully she steered back to her main argument: that a tax exemption to only widows fails the test articulated by Chief Justice Burger in Reed. “For,” she continued,

if need is the concern, then sex should not be a substitute for an income test. And if widowed state is the concern, then it is irrational to distinguish between taxpayers based on their sex.

Hearing Ginsburg arguing that the Court should ask only if Florida’s sex discrimination was rational and not apply “strict scrutiny” apparently confused the Court. Halfway through her presentation, one perplexed justice interrupted. “Excuse me,” he began, “I’m not too clear. You are arguing that sex ought not to be treated as a suspect classification?”

Ginsburg, unable to make her best argument with a bad case, could not put the confusion to rest. In the give-and-take that followed, one justice fumbled to a key question: was Ginsburg saying that she wanted no such tax exemption for women, no such preference for women, “even if it helps”? After more fumbling, and after questioning whether a preference “ever does help,” she came as close as she could to an answer. She had not yet found any sex line in the law, she told the justices, “that genuinely helps. From a very shortsighted viewpoint, perhaps. . . . But the long run, no.”

At the end-of-week conferences of the justices, the votes quickly went against Ginsburg. Scribbling notes as usual, Douglas jotted that he would affirm Florida’s law. He then added, apparently mindful of his mother’s nips and tucks to pay the real estate taxes, that “women as widows are largely destitute.”

In his opinion for the Court, which the fast-writing Douglas had drafted within ten days, Douglas followed his jottings. “There can be no dispute,” he wrote, for the Court, “that the financial difficulties confronting the lone woman in Florida or in any other state exceed those facing the man.” He went on in similarly broad fashion. “Gender has never been rejected as an impermissible classification in all instances. Congress has not so far drafted women into the Armed Services.” From there, he went on to affirm implicitly the Supreme Court case of 1908 that had upheld minimum-hour laws for women—precisely the sort of “protective” labor legislation that Ginsburg believed had the damaging effect of keeping women from earning as much as men. The lone consolation for Ginsburg was that Douglas grounded the Court’s opinion only on Reed and its version of the rational-basis test, thus leaving possible affirmation of strict scrutiny to another day.

But though Douglas did not explicitly reject strict scrutiny, clearly he was not applying it. Of the four voters for strict scrutiny in the Frontiero case, only Brennan and Marshall still argued for it. With the loss of Douglas, the coalition supporting strict scrutiny had splintered. The progression by small steps that Ginsburg had sought to guide had taken a giant step backward.