· CHAPTER 6 ·
Seizing the Moment
Asked later how she became a cause lawyer, Ginsburg replied that “it was all a matter of being in the right place at the right time.” But it was much more than that. “Chance,” aptly observed a Nobel Prize winner, “favors only those who know how to court her.”
Melvin Wulf, the legal director of the national office of the ACLU in Manhattan, arrived in Newark to visit Frank Askin, who taught constitutional law at Rutgers Law School. When they concluded their business, Askin asked his guest if he would like to stop by the office of Ruth Ginsburg. She had told him that the two were summer camp acquaintances. Wulf was delighted: this must be Kiki Bader from Flatbush, whom he remembered well as an ebullient Che-Na-Wah camper. As a sixteen-year-old former camper turned waiter, Wulf, who had starred in the camp’s big production of Gilbert and Sullivan’s Patience, had been assigned a table of twelve-year-old girls—among them, the spirited and vivacious Kiki.
The woman Wulf encountered in Newark was now a slim, suntanned, and conservatively dressed law professor busily preparing for class. What struck him most was how completely the remarkable exuberance of the youthful, breezy camper had been transmuted into mature restraint. The woman he engaged in conversation had a serious bearing and considered style of speaking. One could almost see her mentally formulating every word—attributes, Wulf could assume, that had been honed during years of playing on male turf.
The adult Ruth’s quiet, unassuming demeanor only partially concealed her relentless will and astonishing capacity for work. Even more effectively hidden was her ambition, a trait admired in men but considered so inappropriate in women at the time that most female professionals worked hard to keep it invisible.
Within minutes, it became clear to these former campers how much their lives had diverged despite their common Columbia law degrees. Wulf, who started out on the national ACLU’s two-person legal staff in New York, was never one to miss a new area of rights activity. In 1961, he co-authored with Ruth Calvin Emerson, wife of the Yale professor Thomas Emerson, an amicus curiae (friend of the court) brief in Poe v. Ullman, a Connecticut birth control case that helped lay a constitutional basis for privacy in matters related to marital sexual expression. As ACLU legal director, he devoted his considerable energies to leading the organization into the legal vanguard of the civil rights struggle. Then came the Vietnam conflict. A passionate foe of the war, Wulf included antiwar resisters in the ACLU’s defense efforts, despite initial dissent within the organization.
The timing of the reunion proved fortuitous. In the fall of 1970, the new executive director of the ACLU, Aryeh Neier, had come up with an important project. Neier, the former head of the organization’s innovative New York City affiliate, was, at the age of thirty-three, the youngest national executive director in the organization’s history. He was also one of its most outspoken and resourceful. Convinced by the Warren Court that “nothing was beyond the reach of litigation,” he saw the ACLU’s successful grant-supported special civil rights project of the 1960s as a prototype for others. Why not extend full citizenship rights to all rights-disadvantaged groups? A special project on women’s rights, he proposed, should be the next step. For Neier’s plans to proceed on schedule, the ACLU needed a director and chief litigator for the nascent Women’s Rights Project, preferably a good litigation strategist with some courtroom experience.
When Wulf and Ginsburg parted, neither could have anticipated how soon they would reconnect, thanks to the help of her devoted spouse.
Sitting at home one night in late October 1970, reading the weekly publication of rulings by the tax courts, Marty Ginsburg walked over to his wife’s desk. Read this case, he urged her. Charles E. Moritz, Ruth discovered, was a traveling salesman for a book company who lived with his eighty-nine-year-old invalid mother in Denver, Colorado. Unable to care for her while at work, Moritz, a bachelor, hired nursing help. When tax time rolled around, he attempted to deduct a portion of what he paid the nurse. The Internal Revenue Code allowed an income tax deduction in such circumstances for never-married, employed daughters but not for sons. The IRS denied him the deduction. Claiming sex discrimination, Moritz pleaded his own case before the U.S. Tax Court, which upheld the IRS’s original ruling. When she finished reading the facts of the case, Ruth’s response was just what her husband anticipated: “Let’s take it.” Here was the first of the essential test cases she needed—if they could persuade Moritz to appeal within the required ninety days.
Melvin Wulf, legal director of the national office of the ACLU from 1962 to 1977, whom Ginsburg had known when they were summer camp acquaintances.
What both Ginsburgs saw, apart from Moritz’s personal plight, was a classic example of sex discrimination based on stereotypes that cut both ways, denying fair, equal treatment to men as well as women. Refusing Charles Moritz a tax deduction could be understood as a violation of the constitutional guarantee that neither the federal government nor the states could treat similarly situated citizens differently—in this case, never-married, employed men and women. But would the court of appeals see it this way? Sex-discrimination cases had always been brought by women and fared poorly in the courts, though recent developments were a bit more encouraging.
Initiation of a test case, especially with a male plaintiff, would not be easy. When the Ginsburgs set to work on a brief, it was clear that two points were essential. First, they needed to illustrate why Charles Moritz’s plight constituted sex-based discrimination. Second, because the case involved federal rather than state law, they would have to show why and how the equal protection component the Court had read into the due process clause of the Fifth Amendment applied to Section 214(a) of the tax code. There were also other pressing matters to consider—not the least of them, Ruth’s inexperience as a litigator. Marty, a veteran petitioner in tax cases, would act as co-counsel, handling all aspects of the case relating to the Internal Revenue Code. But first Moritz had to be persuaded to let them appeal the case.
Marty made the contact; Moritz was dubious. He could not imagine why any legitimate lawyer would want to pursue the case when so puny a sum was involved—under $300. Marty patiently explained the notion of a test case, assuring Moritz that he would be under no obligation to pay any lawyers’ fees. Because even appearing to solicit business was considered unethical by the American Bar Association in 1970, the couple needed an institutional sponsor.
Mel Wulf, Ruth calculated, was not likely to pass up a case that was “as neat a craft as one could find” to test sex-based discrimination against the Constitution—a description that she knew would recall the lyrics Wulf sang in the camp’s production of the Gilbert and Sullivan operetta Ruddigore. If the tax court ruling could be overturned, she assured the ACLU legal director, an “important foothold” would be “secured for women’s rights cases.” Adding that she had spoken to Norman Dorsen, she reported that the ACLU’s general counsel was enthusiastic. Dorsen had also promised to take up with Wulf the possibility of making Moritz an ACLU case. The Ginsburgs would act as co-counsel at no charge if only the ACLU would cover the costs. It was not that she and Marty were unable to pay the expenses, she explained. Rather, she needed the ACLU’s backing. “We will take the case to the Tenth Circuit, and if our achievement is not glorious there, we will make a valorous try at the Supreme Court.” Flattered no doubt that she remembered his stirring entry in Ruddigore when the chorus sang, “From the briny sea / Comes young Richard, all victorious! / Valorous is he— / His achievements all are glorious!” Wulf gave his assurance within three days.
Though Ruth now had the endorsement of the national ACLU, she still had no client and, of course, no brief. Moritz preferred to move cautiously. It took a series of phone calls and finally a letter from Marty on the firm letterhead of Weil, Gotshal & Manges to persuade him to go ahead with the appeal.
In midwinter, the Ginsburgs left the city for a two-day trip to draft the crux of the argument, a “docketing statement,” which she sent to Wulf. He replied that it met “the high standard to be expected of one who was early exposed to the rigorous discipline of Camp Che-Na-Wah.” The government, also impressed, offered to settle. Moritz declined, holding out for a legal precedent, as had been agreed with the Ginsburgs.
Ruth now set to work on the brief, consulting with Dorsen, whom she had known since her days on the Harvard Law Review. In turning to Dorsen, she gained the advice of a “master strategist” and superb brief writer who was currently serving as lead advocate for the ACLU in the famous 1971 Pentagon Papers case. An ardent supporter of the ACLU’s use of strategic cases to introduce the judiciary to critical issues in need of consideration, he had just testified before the Senate Judiciary Committee on behalf of an equal rights amendment. Ginsburg had every reason to believe that Dorsen’s judgment mattered a great deal. In April 1971, upon completion of the brief, she received the resounding endorsement from Dorsen that she had hoped for. His pronouncement that Moritz v. Commissioner of Internal Revenue was “one of the very best presentations I have seen in a long time” was just what the untested brief writer needed to hear.
As the plane lifted off the runway at LaGuardia en route to Denver, where the Ginsburgs would appear before the U.S. Court of Appeals for the Tenth Circuit, Ruth reviewed her argument. The tax court had determined that Moritz had no basis for his discrimination complaint, because Congress had denied all never-married, employed men an exemption. The Denver resident had not been arbitrarily singled out; therefore, his constitutional right to due process had not been violated. To get that ruling overturned, the Ginsburgs faced an uphill battle. The federal courts had never found a provision of the modern Internal Revenue Code unconstitutional.
To succeed, Ruth resolved to make three points clearly and convincingly: first, that Section 214(a) of the Internal Revenue Code drew a line based solely on sex; second, that Congress had no legitimate rationale for writing the code in such a fashion; and finally, that doing so deprived Charles Moritz of his constitutional right to equal protection. Specifying that any woman could qualify for a tax deduction for the care of an incapacitated dependent parent while denying that deduction to a never-married, employed man, she would insist, constituted unwarranted differentiation on the part of Congress. Nothing in the legislative history of Section 214(a) or in what was known about biological differences between the sexes could provide a rational basis for such a distinction. The rule not only violated contemporary notions of fair and equal treatment; it also ignored the Fifth Amendment’s due process clause, which had been interpreted to encompass a guarantee of equal protection of the law and of security from arbitrary treatment. Charles Moritz, she would plead, deserved to be granted “the constitutional guarantees of due process and equal protection that apply to all persons, a class in which men and women share full membership.”
Norman Dorsen (second from left) is toasted by (from left to right) Alan Reitman, Roger Baldwin, and Aryeh Neier of the ACLU in December 1976, after he was elected president.
In the oral argument, the Ginsburgs agreed, style would count as much as content. The case would have to be made narrowly with no overreaching claims for gender justice. Instead, she determined to paint the plaintiff’s plight so vividly that from even the briefest description Charles Moritz’s voice would emerge as a real person—a skill harking back to Nabokov’s word pictures, which she would continue to hone in future cases. Legal arguments on Moritz’s behalf would be supported with case citations in the brief. And never, never, she vowed, would she be threatening or emotional. Rather, she must lead the judges to the desired judgment in a way that would be comfortable for them. Moritz deserved to win. But her larger goal remained that of establishing equal protection as a viable weapon with which to attack sex discrimination in the law.
As the couple became acquainted with their client over dinner in Denver, Ruth was impressed by Moritz, who seemed to be a man of great integrity. At the hearing the following day, Marty began. He explained to the three judges the tax issues involved in the case and responded to questions, which soon spilled over into constitutional matters. Quickly realizing that he was intruding into his wife’s territory, he turned to Ruth. Answering every question, the novice litigator made precisely the points she had planned. But whether the Ginsburgs had convinced the panel remained to be seen; the decision would not be handed down for nearly eighteen months.
In the meantime, Ginsburg hoped to use the Moritz brief as a prototype for another sex-discrimination case, Reed v. Reed. If the Supreme Court chose to hear the case, the ACLU would be involved, and she could then approach Wulf about writing the brief. What she did not know at the time was that the ACLU had a feminist past. Nor was she personally acquainted with the women on the national board—Dorothy Kenyon, Harriet Pilpel, and Pauli Murray—whose advocacy of feminist issues within the ACLU had so effectively paved the way for her own role and to whom she would later pay homage.
None had been more stalwart than Dorothy Kenyon, a pathbreaking feminist advocate who gained national and international recognition for her work on behalf of equal rights in the 1930s and 1940s. Resident feminist gadfly on the ACLU’s national executive board for over forty years, she chaired its Women’s Rights Committee. Opposing discrimination against married women during the Depression and advocating equal pay and employment practices in the years after World War II, she made the issue of equal jury selection her own. In the midst of the civil rights struggle, when her committee was renamed the Equality Committee, Kenyon argued that women’s equality could not be ignored. By the time she wrote the ACLU’s first amicus brief in Hoyt v. Florida (1961), she was convinced that legal classifications based on sex were rooted in archaic stereotypes about both sexes, reinforcing women’s second-class citizenship, and must be updated. Describing herself as “a Cassandra crying out in the ACLU wilderness against the crime of our abortion laws and man’s inhumanity to women,” the now white-haired Kenyon had formed a troika in the 1960s with the new board members Harriet Pilpel and Pauli Murray to move the ACLU into the forefront of a resurgent feminist movement.
As counsel to Planned Parenthood and later the ACLU, Pilpel had participated in every significant birth control case since 1936. A significant player in the legal wing of the new abortion law reform movement, in 1964 she and Kenyon succeeded in getting the ACLU to study state abortion laws. With the Court’s decision in Griswold v. Connecticut (1965), which protected marital partners’ use of contraception as a constitutional right of “privacy,” she encouraged efforts to expand Griswold so as to make the termination of a pregnancy a rights issue. She and Kenyon led the effort to persuade the ACLU to endorse a woman’s right to an abortion during the first three months of pregnancy.
Pauli Murray—whom Kenyon and the civil rights leader James Farmer brought onto the board in 1965—proved an equally powerful ally on sex discrimination. A multitalented woman whose life was a lesson in the harmful effects of discrimination based on race, sex, and sexual preference, Murray had been a law student at Howard University in 1944 when she attached a letter to her senior thesis on dismantling race-based segregation. “Now,” she asked her adviser, “how do I go about killing ‘Jane Crow’—prejudice against sex?” Awarded a Rosenthal Fellowship for further study at Harvard Law School, she was rejected because of her sex. By the time she had earned a master of law degree at Berkeley’s Boalt Hall, published a book Thurgood Marshall described as the bible of civil rights lawyers, and completed a doctorate in jurisprudence at Yale, she had the answer to her question.
Dorothy Kenyon, Pauli Murray, and Harriet Pilpel—advocates of feminist issues and members of the ACLU national board—provided the groundwork and inspiration that Ginsburg would build upon.
When she and Kenyon had completed their section of the brief on Alabama’s exclusion of blacks and women from juries in White v. Crook, Murray inserted into the appendix of the brief a prepublication copy of an innovative article that she had just co-authored, provocatively titled “Jane Crow and the Law.” In it, she and Mary Eastwood, a lawyer at the Department of Justice (DOJ), argued that the eradication of sex-based discrimination in the law deserved the same commitment and resources that had previously been aimed at discrimination based on race.
Their argument, that women and African Americans had been subjected to strikingly similar forms of subordination, relied primarily on sociological sources. Reasoning by analogy, the pair was careful to acknowledge critical differences. Yet they maintained that in essence the two forms of discrimination were comparable and their histories interrelated. Similar myths and mechanisms—including the law—had perpetuated the inferior status of both groups.
“Sex” as a valid basis for legal classification had implications comparable to the “now discredited doctrine of ‘separate but equal’ ” with respect to race, the pair contended. The willingness of the Supreme Court, however, to apply the equal protection clause to race-based discrimination but not to sex-based discrimination was a failure of the courts and not of the Fourteenth Amendment, which could easily encompass all forms of arbitrary discrimination.
But to follow the NAACP’s strategy in Brown by challenging various forms of sex discrimination under the equal protection clause with well-developed arguments and carefully coordinated amici briefs, as Murray and Kenyon envisioned, required an intermediate step. Partnership between the emerging women’s movement and the ACLU would be essential. As a member of President Kennedy’s Commission on the Status of Women and a founding member of NOW, Murray set to work.
To bring the ACLU into the feminist camp, she had to persuade the organization’s Equality Committee and ultimately the ACLU board to expand their own understanding of discrimination. A passionate and persistent advocate, Murray prevailed after a three-year effort. Critical support came from key colleagues on the executive board as well as from feminist delegates from ACLU affiliates. In 1970, she and Kenyon—now ill with cancer—presented the ACLU leadership with a far-ranging resolution that called for the pursuit of a “dual strategy” consisting of equal protection litigation as well as passage of the ERA. They also demanded organizational advocacy of a woman’s right to control her own body, including the right to abortion, sterilization, and also protection from involuntary sterilization—a position that Pilpel, now vice-chair of the ACLU, ardently supported. The “troika,” as Kenyon referred to herself and her two allies, had done its work.
In September 1970, the board of the foremost organization of civil libertarians in the nation overwhelmingly endorsed the ERA by a vote of 52–1, thus fully embracing the feminist movement. The ACLU’s president, Aryeh Neier, also proposed a special project on women’s rights. The new initiative was a fitting tribute to two indomitable women. Kenyon would not live to celebrate the project’s first Supreme Court victory, while Murray would break new barriers in 1973 as a seminarian and future Episcopalian priest. But together with Pilpel and stalwart feminist affiliates and male allies in the ACLU leadership, they created a rare opportunity—an institutional base in a venerable and aggressive civil liberties/civil rights organization for an ambitious advocate eager to create law curtailing sex discrimination. Though Ginsburg would build on their arguments, she had yet to make that base hers.
In April 1971, with the school year soon to end, Ginsburg contacted Wulf. Reminding him that she had volunteered to write the appellant’s brief in Reed v. Reed should the Supreme Court agree to hear the case, she sent along a copy of the Moritz brief. At issue in Reed was an Idaho law stipulating, “Where there are several persons equally entitled to administer the estate of a person dying intestate, males must be preferred to females.” The equal protection argument that she had used in her Moritz brief could be applied as well to Reed, she noted. Her letter ended with a tantalizing question: “Have you thought about whether it would be appropriate to have a woman co-counsel in that case???” Wulf and Ginsburg understood each other perfectly. “We will write the brief,” he replied.
The ACLU’s president, Aryeh Neier, appointed Ginsburg to the first directorship of the Women’s Rights Project, 1972.
As the two worked together on the brief during the summer of 1971, Wulf grew to appreciate Ruth’s legal acumen, sound judgment, and precision. Her research, he concluded, was “impeccable”; she had even included in the brief two recent decisions from the West German Constitutional Court that had rejected sex-based preferences. She did so, she explained, not because she expected the U.S. Supreme Court to follow blindly the lead of its European counterparts. Rather, the justices should know what other high courts were doing about sex discrimination.
Ginsburg lacked experience as a litigator. But after reviewing the brief, Wulf concluded that she was just the right person to realize the potential of the proposed Women’s Rights Project. Dorsen and Neier agreed. She had the academic credentials, the ability, and, above all, the ambition—that essential “fire in the belly.” Dorsen recalled, “At the time, Ruth had not yet managed to conceal fully her feelings about her personal experiences with discrimination; there was still some rawness there.” But that, he acknowledged, only fed her determination.
If she accepted the directorship of the Women’s Rights Project, Ginsburg knew that she would have advantages that advocates in other feminist legal organizations lacked. Foremost was the opportunity to be part of a long-established human rights organization. “Civil liberties,” she explained, “are an essential part of the overall human rights concern—the equality of all people and the ability to be free.” And the ACLU has long been a player in such historically important cases as Scopes, Sacco and Vanzetti, and Scottsboro. An impressive string of Supreme Court victories over the years had heightened the ACLU’s influence over U.S. law and public policy. Its record of success before the Warren Court over the decade from 1954 to 1964 had placed the organization at the vanguard of a broad range of critical social issues, redeeming its compromised record during the McCarthy era. ACLU litigators—among them Dorsen, Marvin Karpatkin, and the venerable Osmond Fraenkel—had extraordinary expertise, making them invaluable mentors. Not to be discounted was funding and a national network of affiliates.
A start-up fund of $50,000 from the ACLU, combined with a small grant (eventually $100,000) from the Playboy Foundation, would soon create a pool of financial resources for litigation greater than what was available either to NOW or to the Women’s Equity Action League (WEAL), another feminist advocacy group. And additional grants seemed possible, given the ACLU’s long history of foundation support. As director of the Women’s Rights Project, she would have a staff—however small—and resources to take her cases as far as the courts allowed. With access to relevant cases from across the nation generated by affiliates, she could choose those she judged most likely to win.
In addition, the position would thrust her into the mainstream of a new kind of advocacy. In the 1960s and 1970s, the ACLU’s newer ventures were transforming the venerable organization, like other specialized public-interest legal organizations, into what came to be known as cause lawyering. A radical departure from traditional law firms, where attorneys engaged in remunerative work for individual and corporate clients along with a little pro bono representation, cause lawyers were free to align their values and practice. Unencumbered by the constraints of established firms, they could actually do something about a cause in which they believed.
A protean and heterogeneous enterprise, cause lawyering stretched the conventions of legal practice. Advocates chose cases most likely to maximize legal gains for the cause itself, even if that left some of them vulnerable to the charge that they might be putting cause above client. They also engaged in activities other than litigation, encouraging public education as well as remedial legislation—an essential activity in Ginsburg’s view. As anyone following the Swedish prime minister Olof Palme’s Social Democrats knew, substantive equality required not just legal victories but extensive legislative efforts as well.
The number of female lawyers involved in cause lawyering was high—not because they were necessarily more altruistic than their male counterparts, but because they had fewer professional options. Also, as women, they could finally “speak truth to power.” That fact alone helped compensate for the long hours, heavy workload, and other inconveniences associated with cause lawyering.
Before joining their ranks, Ginsburg needed to get in place another piece of her professional life. She had always yearned to be at a first-rate law school that did not require a commute that literally generated nightmares. She had begun exploring new venues shortly after her promotion to full professor at Rutgers. Though she had spent a semester as a visiting faculty member at New York University Law School in the spring of 1968, no offer of a permanent position had followed due to a hiring freeze. But there would soon be other options, thanks in good part to the federal government.
In 1970, the Nixon administration extended affirmative action to universities. As with businesses holding federal contracts over $50,000, universities had to formulate affirmative-action plans for hiring minorities and women with goals and timetables. Specific numbers or quotas were not mentioned, but employers had to set “reasonably attainable targets” and make a “good faith effort” to hire individuals on the basis of merit or risk cancellation of government contracts.
With the “old boy” tradition of job placement under federal scrutiny, it was no accident that Ginsburg received an invitation from Harvard to join the Law School faculty as a visiting professor for the fall semester of 1971. In the academic world, visiting professorships often serve as a trial marriage: host faculty and visitor can size up each other and decide whether they want to tie the knot. But as Ginsburg soon discovered, commuting to Cambridge for classes—in addition to her regular teaching at Rutgers—was not an optimal situation for a job candidate eager to be at her best. One day, when a Harvard faculty member told her as she was walking to class that he would be attending to observe her teaching, her heart sank. She was so exhausted from staying up most of the night to finish a brief that she felt fortunate just to remain standing upright. As the fall semester wound down, Ginsburg met with her old champion Albert Sacks, now the Law School’s dean. Sacks urged her to continue teaching through the spring, allowing the faculty more time to decide whether to offer her a permanent position.
Ginsburg declined. Harvard had weathered its own annus horribilis in 1969, when police and student protesters faced off in Harvard Yard. At the Law School, students had a long list of grievances, over which faculty were divided. But it was not just the legitimacy of student discontent and its remedies that eroded the old sense of community that had flourished at Langdell Hall. By 1970, two new schools of legal thought had taken over: Chicago-style law and economics on the Right and critical legal studies (CLS) on the Left. Sacks might now be the school’s chief administrator, but process theory had been pronounced “dead.” In its wake, “Crits [CLS] and their enemies waged aerial dogfights over legal philosophy, while grim trench warfare went on below over admissions, appointments, and curriculum,” declared an astute observer. Knowing that proposed female and minority faculty appointments would be casualties in this ideological minefield, Ginsburg had sensibly surmised that her future lay elsewhere. She had learned her lesson at Rutgers, where she and Eva Hanks had received a divided vote for tenure from a deeply fragmented faculty. Also, she had her eye on Columbia.
So did the Office of Civil Rights (OCR). Old-timers on the Columbia faculty—some of whom were actually still quite young—complained vehemently, as did their Harvard counterparts, that the absence of women on the Law School faculty did not constitute a problem. Nor did the fact that the male-female ratio among law students had remained ten to one for the last thirty years merit concern. As one veteran member of the Columbia Law School faculty put it, “It really wasn’t sexism so much as just not wanting to change the club-like atmosphere that prevailed.” Such sentiments were not confined to the Law School, as university-wide hearings on the status of women made clear in 1970. Nor did it mean that Columbia’s record was worse than that of its counterparts elsewhere. According to The New York Times, thirty-six universities and colleges holding federal contracts, including Columbia, were soon to be charged with sex discrimination. An investigation of Harvard had already begun.
With the clock running, the gentlemen’s clubs of the country’s most prestigious law schools began scrambling. Michael Sovern, the popular new dean of the Columbia Law School, called a faculty meeting for the purpose of selecting a woman. Hans Smit had talked about hiring Ruth Ginsburg for years, but to no avail. Though her name was not on the short list of possibilities to be discussed, Smit had copies of Ginsburg’s résumé put around the table in front of each chair before the meeting began. Attached was a letter from a Rutgers colleague whom Smit had told, “Don’t try to make her out to be a great lecturer. Just talk about her command of her subject.” The letter, a paean to Ginsburg’s scholarly expertise, had the desired impact. Because various members of the faculty had taught the candidate, she was a known quantity. And one thing they “knew”: this woman was no militant feminist likely to create problems. She had no record of faculty activism at Rutgers. So Ginsburg it would be. Back in his office, Sovern picked up the phone.
Could she attend a cocktail party to which the entire law faculty had been invited, Sovern asked. “We’re not going to ask you to show and tell,” he said, referring to the usual faculty job interview, where prospective candidates were expected to sell themselves to their hosts. “We want you…and we are having a friendly gathering to persuade you to accept our offer.” Ginsburg happily accepted. Keenly aware of the role of the OCR, she knew that the doors of Greene Hall had not opened in a spontaneous acclamation of the importance of her scholarship and her riveting lectures. But neither did she sell herself short. If she could reach an arrangement with the Law School and the ACLU that would allow her to divide her time between the two, she could well have the best of both worlds.
Marty realized that this was a critical moment in his wife’s career. He had done his best to share the responsibilities of parenting, but Ruth had borne much the heavier load during the years when he was racing to partnership and building a name for himself. Now he could afford to do more.
The children were also growing up. A much happier Jane was now in high school and would soon be off to college, probably the University of Chicago. A staunch feminist, she could appreciate what her mother wanted to accomplish. And the housekeeper would be on hand to help with James. A bright, high-spirited, exceedingly talkative, energetic six-year-old, he loved music, math, and soccer but found it difficult to focus on school subjects that were not among his favorites. The towheaded youngster also had a seemingly unrivaled talent for engaging in escapades. His various capers brought frequent calls from the prestigious Dalton School summoning his mother. Frustrated by the fact that she was always the one who had to meet with school authorities, Ginsburg finally told the principal, “This child has two parents. Please alternate calls.” As she had anticipated, the principal had second thoughts about interrupting Marty, and she was now spared frequent trips. Also, she felt she no longer had to overcompensate for being a working mother by taking her lively son to every cultural event for children in Manhattan, as she had done with Jane.
At the age of thirty-eight, it was now her turn to make her mark outside legal academia. Her husband and daughter would back her completely. While Marty could not promise the outcome of the cases so key to her equal protection argument—Moritz and Reed—what he lacked in certainty, he made up for in confidence. In little more than a year, his wife had found cases and developed an equal protection argument that involved not just an effort to rid the law of sex-based classifications but “a far richer theory,” notes the legal scholar Cary Franklin. Involved as well was the constitutional limitations on the state’s power to enforce stereotypes. In addition, she had secured offers to be the ACLU’s leading women’s rights advocate and Columbia Law School’s first female full professor in its 114-year history. A woman who believed that “if you want something badly enough you find a way,” Marty knew, was not to be underestimated.
In January 1972, The New York Times carried the headline “Columbia Law Snares a Prize in the Quest for Women Professors.” The accompanying article called Ginsburg’s appointment a “major coup” for the university. Congratulatory letters by the dozens flowed in on legal letterhead and on the personal stationery of old friends and classmates. A former student at Brooklyn Public School 238 inquired if Columbia’s “prize” was indeed the Kiki Bader whom he remembered as having “very blonde hair and a lovely flashing smile and of course being very bright.” Jack B. Weinstein, a judge on the U.S. District Court of Appeals, added his congratulations along with the observation that “our procedure group is now truly extraordinary.” Judge Palmieri, who was reportedly buying up all the copies of The New York Times he could find, expressed his great delight along with a fatherly admonition—“don’t work too hard.” Senator George McGovern, whose presidential candidacy had won Jane Ginsburg’s ardent support, sent his congratulations along with an emphatic denunciation of gender discrimination.
Columbia’s president, William J. McGill, was also quick to convey his pleasure in what would be the first of many exchanges between the two. “A number of lawyers downtown, a large number of the Law School faculty, and my old friend Jennifer McLeod at Rutgers have told me how lucky we are,” McGill wrote, “and I’m prepared to believe it….I should also add that I was ready to say all these things even before I read the wonderful publicity about you in the New York Times. After that, you can have almost anything, even my office!”
Responding graciously, Ginsburg was nevertheless a bit miffed when McGill noted that with her appointment the Law School had now met half of its affirmative-action target. The comment offended Ruth’s sense of merit. She knew she had the right credentials and she had certainly paid her dues professionally. Lund University in Sweden had awarded her an honorary degree in 1969, along with the traditional tall pleated hat and a much-cherished gold ring, the only ring she wore. Surely, she had earned her place on the faculty. But sensibilities on both sides were raw in the tension-filled atmosphere of Columbia in 1971–72.
Ginsburg began teaching at Columbia Law School while also serving with the ACLU, 1972.
McGill had taken on the formidable task of knitting back together a financially strapped university in the wake of a radical student takeover and long-standing tensions with its African American and Puerto Rican neighbors in Harlem and Morningside Heights. Then he discovered that he had a gender problem as well. A report compiled by Columbia Women’s Liberation on the paucity of women on the faculty at Columbia and their near absence in the senior ranks had made its way to the desk of J. Stanley Pottinger, head of the Civil Rights Division of the Department of Justice.
Struck by the report’s juxtaposition of the number of women earning advanced degrees and the number employed in a breakdown by department, Pottinger had asked Columbia for employment data sorted by race and gender. When his requests were repeatedly ignored, Pottinger—who was under intense pressure from women’s groups to enforce government guidelines—concluded that the charges had merit and the university’s administration was stonewalling. Notified in November 1970 that $33 million in federal contracts were at risk, the embattled McGill took notice. With no admission of guilt for past discrimination, over the next year the university put together an affirmative-action plan that called for the hiring of almost nine hundred women and minorities over a five-year period.
If McGill’s satisfaction with Ginsburg’s appointment was colored by the difficulty of meeting the plan’s goals in a time of financial stringency, the response of her new colleagues was perhaps no less tinted. The male culture of the professional schools was strong. Some saw affirmative action simply as an abuse of federal power; others feared that it would lead to deteriorating academic standards. Jewish professors, remembering when top universities used quotas to limit the number of Jews admitted and hired, were especially alarmed. At the Law School, most members of the faculty had doubts as to whether a woman—any woman—could lecture effectively to large groups of law students. Even Ruth’s old friend Walter Gellhorn raised a skeptical eyebrow.
But the new dean, Michael Sovern, was determined to push forward, promoting two female administrative assistants to vice-deans, hiring Ginsburg, and taking half of the enormous men’s room on the first floor of Greene Hall and converting it into a women’s room. When asked what to do with the urinals, he suggested filling them with flowers.
Aware of the varying sentiments that prevailed in this all-male preserve, Ginsburg resolved to teach her lecture course on civil procedure with her customary rigor and authority. In her small seminars on sex discrimination and conflict of laws, students could get to know her better. Many, she hoped, would discover in her what she as a student had found in Harvard’s Al Sacks—a caring, fair teacher who coupled “accessibility with demanding standards of precision in thought and expression.” As her only female colleague at the Law School, Harriet Rabb, who ran an employment-discrimination clinic, noted, Ginsburg’s “commanding and authoritative air in class” masked a “shy, gentle, incredibly nice person” with a healthy sense of humor.
Ginsburg hoped that initial concerns about her teaching would disappear in time. But showmanship in the classroom was not her forte, and “dazzling” was a description to which she had never aspired. Nor did she expect to be “one of the boys.” There was no time—or desire—for schmoozing. What she treasured about these new colleagues was their professional self-confidence and lack of factionalism. Just being on the faculty of one of the top three law schools in the nation eased the insecurity that had gnawed at some of her Rutgers colleagues, feeding their often-acrimonious disputes. Moreover, the intellectual power of the Columbia Law School faculty was impressive. Michael Sovern, its brilliant and principled dean, had the vision and leadership qualities that would later earn him the presidency of the university. Having such good minds available for practice sessions, where she could present an argument she intended to make before the Supreme Court, would sharpen her performance. Even those colleagues who failed to share her litigation goals would provide incisive questions, objections, and suggestions. In the meantime, new avenues of activism were opening.
Indeed, the ink was scarcely dry on Ginsburg’s contract when the request came to please do something about a recent labor cut at Columbia that involved the dismissal of twenty-five maids and not a single janitor. She promised to look into the controversy, even though she was still teaching at Rutgers. The maids, she discovered, were overwhelmingly poor women of color who were sole providers for their families. Less upset about pay inequities than employment security, they knew that their jobs were quite literally the only thing that stood between them and welfare. When Transport Workers Union Local 241 proved reluctant to support its female members, feminists in the Columbia Women’s Affirmative Action Coalition reached out. Two of their members had been meeting with President McGill about the coalition’s input into the university’s Affirmative Action Plan when the firings occurred. Both young lawyers, they offered to represent the maids at no charge and promised to file for a preliminary injunction from the court to stop the layoffs.
Ginsburg was brought into the dispute by Janice Goodman, the NYU Law School student who had approached her about teaching a sex-discrimination course at Rutgers and now acted as an attorney for the maids. Hoping that a resolution could be achieved before the matter went to court, Ginsburg contacted the university’s vice president, Joseph Nye.
When Nye welcomed the Law School’s newest faculty member to his office, she politely reminded him that Columbia was already in violation of Title VII of the Civil Rights Act of 1964 and perhaps the Equal Pay Act as well. After all, maids and janitors did basically the same work. Yet the seniority system was rigged so that every maid would have to be let go before the first janitor could be fired. Surely, she suggested, a more gender-equitable solution could be found that would spare the university a legal defeat. Nye explained that the union set up the system under which the maids had been fired, and the university must maintain good relations with its unions. Implying his hands were tied and assuring his visitor that Columbia was well represented by a downtown firm, he next said, Ginsburg recalled, “Now, dear, wouldn’t you like a cup of tea?”—a signal that the discussion was over.
Nye, however, had underestimated his visitor, seemingly unaware of the expertise her ACLU post confirmed or the constituency she represented. (Ginsburg had kept her future dean Michael Sovern in the loop, so she could claim the support of the law faculty.) Shortly after her meeting with Nye, Gloria Steinem, Bella Abzug, Susan Steinberg Danielson, and other feminist notables declared their solidarity with the maids at a well-attended press conference on campus. Heartened by their new allies, the laid-off workers believed that the union might be reconsidering. The university, on the other hand, gave no sign of accommodating.
Nor was this Columbia’s only gender war. The newly organized University Senate’s Committee on the Status of Women was at the same time battling against salary discrimination, while women students were complaining that dining requirements at the university facilities were less restrictive for men than for women. Students also protested that the gym reserved all its tracks for male runners, leaving women to the streets of Morningside Heights. And so it went. Her alma mater, Ginsburg concluded, seemed further behind the curve in dealing with issues of discrimination than Rutgers, which had far fewer resources at its disposal. In letters to McGill, she shared Rutgers’s policies, impressing upon the president the need to investigate and respond promptly to “reasonable” requests for gender equity so as to spare Columbia “unnecessary publicity” and perhaps ensuing legal confrontations. McGill responded positively to the spirit of Ginsburg’s letters but offered little substance.
One thing seemed certain: the problems of dismissed maids would have to be determined by the court. When that day arrived, the chief counsel of the EEOC spoke in favor of a stop order. Singling out women for dismissal violated equal employment practices required by the Civil Rights Act, he explained. The union promptly backed away from the seniority system established in its contract with Columbia, leaving the university the sole defendant. In September 1972, the personnel office finally ordered that the layoffs be handled through attrition. In the end, not a single maid was fired, Ginsburg later noted with considerable satisfaction.
It was not just the maids in Transport Workers Union Local 241 who found advocates. In signaling to McGill that problems of discrimination should be resolved in-house, Ginsburg sent a further message: she would not be silent on matters of gender equality at Columbia.