· CHAPTER 10 ·
A “Near Great Leap Forward”
Sharron Frontiero, a physical therapist at Maxwell Air Force Base Hospital in Montgomery, Alabama, had married her fiancé in 1969 in their hometown of Gloucester, Massachusetts. Returning to the base with her new husband, the twenty-three-year-old lieutenant opened her air force paycheck. She thought there must be a mistake. Her male colleagues received increased housing allowances when they married, but she had not. Her husband, Joseph, a navy veteran, was now a full-time college student. They needed the larger housing allowance as well as medical and dental benefits for him. The personnel office, she assumed, would surely correct its mistake.
There had been no error. Lieutenant Frontiero could not legally secure a housing allowance, much less medical benefits for her husband, unless he was her “dependent.” By most standards, he was; Sharron’s yearly salary of $8,200 provided nearly three-quarters of their family income. But a federal statute stipulated that a married female member of the armed services could receive spousal benefits only if she demonstrated that she was contributing more than half of her husband’s living expenses. Joseph received a monthly veteran’s payment of $205 from the navy under the GI Bill and earned $30 a month working part-time as a night watchman, putting him over the limit.
For nearly a year, the frustrated lieutenant went through air force channels, trying to rectify the situation. It was the principle of the thing that so infuriated her. To have different rules for married men and women in the service was just wrong. “Our idea,” she explained, “was that men don’t depend on women and women don’t depend on men. Men and women depend on each other.” But despite her formal complaint, nothing changed.
Claiming discrimination on the basis of sex, the Frontieros turned to Joseph Levin Jr., a local attorney who had lectured to a Huntingdon College class that Joseph Frontiero had attended. A civil rights lawyer, Levin was about to join Morris Dees to found the soon legendary Southern Poverty Law Center. He understood immediately what was at issue. Described by Dees as “bright” and “tireless,” Levin had never questioned the racial practices of his native state until the Ku Klux Klan burned a twelve-foot cross on the lawn of his Jewish fraternity house. The cross burning was a protest against an editorial in the University of Alabama student newspaper written by a fraternity brother who criticized Governor George Wallace’s refusal to let black students enroll at the University of Alabama. The open hatred was an eye-opener for a college student who had gone through junior high school oblivious to the significance of the Montgomery bus boycott.
After receiving his law degree and serving a two-year army stint, Levin had returned to Montgomery, where he soon exchanged the boredom of his father’s commercial practice for a partnership with the fearless Dees. Specializing in what the two young trial lawyers anticipated would be major civil rights cases, they planned to use fees from their paying clients to support exciting pro bono cases like Sharron Frontiero’s.
Levin’s first task was to convince the Frontieros that the air force would be too concerned about appearances to retaliate by transferring Sharron to some remote post. Only then did the couple agree to sue. He then argued the case before a three-judge panel for the Middle District of Alabama. The panel consisted of two giants of civil rights enforcement, Judges Frank M. Johnson Jr. and Richard T. Rives. It was Johnson and Rives who had struck down Montgomery’s bus segregation law and also handed Dorothy Kenyon and Pauli Murray their victory in White v. Crook (1966).
But this time the two men could not agree. Judge Johnson wanted to rule for Frontiero, but the cryptic wording in Reed, handed down while the three-judge panel—Johnson, Rives, and Judge Frank McFadden—was in the midst of deliberations, did not help. Rives was more impressed by the Court’s rejection of strict scrutiny. The panel ruled by a two-to-one majority that the sex-based classification sought in Frontiero bore a rational relationship to the purpose of the law, which was to save the government money and time. By assuming that most wives of servicemen would be economically dependent, the government was spared the expense of processing proof of dependency. (The cost, however, would have been offset by savings achieved by withholding benefits for husbands such as Joseph Frontiero, who were only partially dependent.) Sharron was dumbfounded by the decision, but Levin remained confident, encouraged by Johnson’s strong dissent. This was not the end, he promised.
Levin then approached the ACLU for help in appealing the case to the Supreme Court. Wulf and Ginsburg responded immediately. Frontiero, an ideal equal protection case, would also provide an opportunity to extend to women in the military the same guarantees regarding compensation that the Equal Pay Act and Title VII accorded civilians. Should the Court elect to hear Frontiero and should the ACLU win, the cost to the government would be modest. Better yet, the stage would be set for other cases involving Social Security benefits, where equalization would entail far larger sums. Not least, the case offered another opportunity to argue for strict scrutiny. If a majority was not yet ready to move to the higher standard of review, Ginsburg would urge the Court once again to adopt the language she had proposed in Reed. A rule must have “a fair and substantial relation to the object of the legislation so that all persons similarly situated shall be treated alike.”
But first, arrangements had to be nailed down with local counsel. At Levin’s request, Ginsburg, collaborating with Feigen, would handle the jurisdictional statement without assistance from the Southern Poverty Law Center. She would also prepare both the brief and the reply brief. And she, not Levin, would present the oral argument in Court, Wulf insisted.
After the Court granted review, Wulf checked with the civil rights lawyer Charles “Chuck” Morgan, who had previously headed the ACLU’s Southern Regional Office and was now in charge of the Washington office. Morgan, who knew all the players, was not encouraging. Levin would want to argue the case on narrow grounds, ignoring strict scrutiny, Wulf reported. They would have to make it unmistakably clear that at the Supreme Court level, the ACLU would be in charge.
Ginsburg and Wulf believed that they had reached an agreement with Levin and, by extension, his assistant, Charles Abernathy, a third-year Harvard Law School student and editor of the Harvard Civil Rights–Civil Liberties Law Review. Because the Alabama duo, still in their twenties, had offered to help with a preliminary draft of the brief once the Court accepted the case for review, Ginsburg mailed a copy of the Reed brief’s strict scrutiny argument and a tentative outline for Frontiero, along with relevant chapters from her forthcoming casebook on sex discrimination. She also suggested that amici briefs be solicited from the Women’s Law Fund, a Cleveland-based project of the Ford Foundation, NOW, and other groups. Then, with her usual dispatch, she set to work on the appellant brief.
Lieutenant Sharron Frontiero and her husband, Joseph (1973), who challenged sex-based differentials in military benefits in Frontiero v. Richardson. Ginsburg’s advocacy before the Court persuaded four justices but not the critical fifth to make sex-based laws and regulations subject to strict scrutiny.
The response from Montgomery was not reassuring. Levin dismissed amici briefs as unnecessary, indicating that the case would be better served by maintaining a “Nixonian low profile.” Nor was he inclined to make the argument for strict scrutiny. However desirable it might be in principle, he insisted, it would not be needed to win Frontiero. Abernathy, while admitting that he needed help gathering statistical data, agreed. “It was not a good strategy to invite the ‘Burger Justices’ preoccupation with decisions that had a revolutionary impact on the courts,” he wrote. “Given the nature of your suggestions up to now, I think our arguments are at a higher level of sophistication than you suggest, and that, of course, makes me a bit reticent in incorporating your suggestions into the brief.” As Ginsburg wryly noted on another occasion, “Some things don’t change—today’s members of the Harvard Law Review seem as impressed with their own superior understanding as the crew I knew and loved.” At the time, however, she felt far less charitable.
The situation was rapidly deteriorating. Levin informed Wulf that he and Dees had decided to present the oral argument themselves. “It’s our first opportunity to argue a case before the Court and we have grown very attached to this particular case over the past couple of years.” A dismayed Ginsburg responded, emphasizing the importance of having a woman argue the case. “I am not very good at self-advertisement,” she wrote, “but I believe you have some understanding of the knowledge of the women’s rights area I have developed over the past two years.” Levin shot back that neither her sex nor her expertise mattered “one iota.” “I find myself trying to determine at exactly what point in time we allowed ourselves to become ‘assistants’ in our own case,” he added, declaring that he and Dees would proceed without the ACLU. Ginsburg, hackles up, fired back, telling Levin that he had “made [her] temperature rise.” If all he wanted were suggestions, she added, he could have read the previously mailed chapters of her forthcoming text. “Frustrated”—the word she later chose to describe her emotions—hardly captured Ginsburg’s feelings at the time.
Try to get Levin’s consent for an ACLU amicus brief, Wulf advised. If he agreed, the Women’s Rights Project could remain in the game. Levin consented. But it was now the end of October, and there was little time left. With the help of Feigen and her husband, Marc Fasteau, also a Harvard Law graduate, Ginsburg completed the amicus brief by December.
Levin meanwhile put the finishing touches on his own brief. Narrowly focused, his argument was designed to win for the Frontieros by demonstrating that the law at issue could not withstand rational scrutiny. Whether the Court should apply a higher standard of review to sex discrimination was “a question that need not be reached in the present case,” Levin noted, adding that “a sex classification needn’t always be suspect.”
Ginsburg agreed that the law in question could not pass the rational relationship test. But, unlike Levin, she had more than one fish to fry. First, she wanted to expose the remnants of coverture in the stereotypes of male breadwinner/female dependent that underlay the assumption that military wives should automatically receive benefits while husbands rarely would. Second, she hoped to demonstrate why strict scrutiny was appropriate.
She began her brief by surveying women’s legally and historically inferior status, as she had in Reed. Again she demonstrated how the many laws that had seemed to offer special protection to women when originally designed in fact ultimately acted to hinder them. Again she drew on Pauli Murray’s race-sex-discrimination analogy, explaining that sex bore no more relationship to ability than skin color and, like race, merited stricter scrutiny. The justices also should appreciate how much the lower courts needed the definitive guidance that a higher level of scrutiny would provide.
Ginsburg then turned to Sharron Frontiero’s plight, explaining why the specific legislation dealing with military benefits that disadvantaged Frontiero could not be justified by administrative convenience. Like Reed and Stanley, another sex-discrimination case where the Court had rejected administrative convenience as a rationale, the statute challenged did not pass even the rational relationship test. There was really no reasonable justification for denying Sharron Frontiero and her sisters in uniform equal pay and allowances, she concluded.
As to remedies, the Court could refer the matter to Congress to repair in future legislation. But should the justices choose to go that route, benefits would be denied to all dependents, which was hardly the intent of Congress. Surely the preferable remedy, Ginsburg proposed—as she had in Moritz—was judicial action extending benefits to both sexes. Judicial extension—an idea she had picked up in conversation with her old mentor and friend Gerry Gunther—could be regarded as a kind of judicial legislating that encroached on congressional prerogatives. But cutting off benefits for men in the military—the only other alternative until Congress acted—was surely not what lawmakers had originally intended, she argued.
Clear, concise, and tightly reasoned, Ginsburg’s amicus brief ultimately wound up in Landmark Briefs and Arguments of the Supreme Court of the United States. That it did so was no surprise to her colleagues. Feigen was awed by Ginsburg’s knowledge of and adroit use of history as well as the eloquence of her language. “I have never had an experience like the writing of our Frontiero brief,” she recalled. Kathleen Peratis, who would soon take over the title of project director, responded similarly. “I had written briefs before,” she remarked, but working on a brief with Ginsburg was “a new experience. Every sentence, every citation, had to make a point. No citation was ever allowed in which the case had been eroded by some other decision. The legal scholarship had to be impeccable and the language a model of clarity [and precision]”—a standard, the ACLU litigator Norman Dorsen noted, that Ginsburg invariably met. Clearly, in Peratis’s words, “She made her very high standards the norm for all the work of the project.”
But would Ginsburg’s amicus brief persuade Levin to reconsider strict scrutiny? Sending him a copy, she pointed out that her brief differed “substantially” in approach and substance. Though not fully persuaded, he agreed to a joint reply brief addressing points made by government attorneys, which she would write and he would file.
Ginsburg relished the task. It allowed her to attack the solicitor general’s arguments with respect to Congress as well as the use of outdated legal precedents. Not least, the reply brief provided another opportunity to argue for suspect classification. The government lawyers, she wrote, had no clear evidence of the original intent of Congress. In all likelihood, the nation’s legislators had relied on prevailing gender stereotypes, which the Court had already rejected in Reed. To argue that military personnel matters should be left to Congress was inappropriate because the issue in question was constitutionality, a matter that only the Court could decide.
Finally, she took issue with the government’s insistence that sex distinctions should not be considered suspect unless the ERA was ratified. “In sum,” Ginsburg concluded, “appellants”—Frontiero and her sisters in the services—“submit that designation of the sex criterion as suspect is overdue, provides the only satisfactory standard for dealing with the claim in this case, and should be the starting point for assessing the claim.”
Next came preparation for oral argument—a momentous event for any first-time advocate appearing before the Supreme Court. Ginsburg and Levin, finally, had agreed to divide the thirty minutes. But no decision had been made as to who would say what or for how long. The challenge for Ginsburg was a double one. She could distill a brief of over seventy pages into a ten- to fifteen-minute presentation. But to be effective, she needed to be so familiar with the material and so certain about the points she had to make that she could jump agilely back and forth between her prepared presentation and responses to questions from the bench. Reducing her notes to a brief handwritten outline, Ginsburg prepared strong opening and concluding sentences, hoping to make her key points in whatever order she could.
Without agreement from Levin, there was no opportunity for a moot court rehearsal. He finally consented to a meeting at ACLU headquarters in Washington with Chuck Morgan as arbiter. Trying to make the best of a bad situation, Ginsburg told herself that arguing with co-counsel the night before their big day in Court would at least keep her from worrying about her own performance. Despite the evident tension, the two attorneys finally agreed that Levin would speak first with Ginsburg to follow.
The morning of January 17, 1973, dawned crisp and cold. After finishing her usual exercise routine drawn from the Canadian Air Force Exercise Manual, Ginsburg showered and had breakfast. Dressing carefully, she put on her mother’s jewelry—antique gold earrings and a matching circle pin that she attached to her suit jacket. Wearing Celia’s jewelry had become a custom on significant occasions. Her first oral argument before the Court surely qualified—an accomplishment in which her mother would have taken pride. But neither the jewelry nor her impeccably tailored reflection in the mirror eased the mounting anxiety. Deciding to forgo lunch, lest her queasy stomach betray her, she concentrated on her argument until it was time to leave the hotel.
Located at 1 First Street NE, the west-facing Supreme Court Building sits, along with the neighboring Library of Congress, across the street from the Capitol. As Ginsburg approached, she was reminded how much it looked like a pristine Greek temple with its fluted Corinthian columns and pediment. The inscription carved into the frieze above the main entrance—“Equal Justice Under Law”—seemed especially appropriate. Once inside the Court, she was too preoccupied to appreciate the grandeur and symbolism of her surroundings. She and Feigen were escorted along marble floors of the Great Hall past busts of all the former chief justices to the front of the courtroom, along with the government’s lawyers. Ginsburg immediately noted Marty’s reassuring presence in the section reserved for the Supreme Court bar, located just behind the counsel table. The two women took their seats along with Levin at the “desks” where lawyers for the two sides sit, actually a single, long table bisected by the lectern.
Red benches set aside for members of the press were behind them and to their left. Another set of red benches on the right were reserved for guests of the justices. An additional collection of black chairs in front of those was meant for officers of the Court and visiting dignitaries. As they looked toward the bench, the clerk of the Court, responsible for the administration of the Court’s docket, was to their left, while the marshal of the Court, who acted as the timekeeper for each session, sat to the right of the bench.
When the heavy red velvet draperies parted behind four marbled columns, the nine black-robed justices filed in, taking their seats in order of seniority in the high-backed black leather armchairs behind the mahogany bench. Chief Justice Burger took his place at the center with the senior associate justices on either side. At the end of the bench, the marshal stood up from his desk. Dressed in formal morning clothes, he somberly intoned the traditional words: “The Honorable, the Chief Justice and the Associate Justices of the Supreme Court. Oyez! Oyez! Oyez!” Attorneys newly admitted to the Supreme Court bar took their oath—the same oath that she and Marty had taken years ago when they were sworn in.
On this particular Wednesday, the court would hear arguments in four cases, the last of which was Frontiero v. Richardson. Levin led off. His voice a monotone, he began to make the basic points in his brief, arguing that the sex-based statutes denying Sharron Frontiero spousal benefits failed the rational basis test. His sentences were punctuated with pauses and stammers as though words sometimes had difficulty coming out of his mouth. He had barely started when the questioning began. 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? The questions seemed to catch him off guard, and he struggled to answer. He tried to stick to his argument, but as he was answering yet another question, he suddenly realized he was already two minutes into the time promised his co-counsel.
Ginsburg now had no more than ten minutes to make her case. As Levin said “Professor Ginsburg,” she moved to the microphone, adjusting it downward. Chief Justice Burger acknowledged her, “Mrs. Ginsburg.” She preferred “Ms.” but said nothing, aware of “the many butterflies in my stomach.” Standing ramrod straight, she began speaking clearly, “Mr. Chief Justice and may it please the Court.” The first sentence was hard to get out, but looking at the nine men seated before her, she realized that she had a captive audience in the most important court in the land. With a new surge of power, she explained why sex-based laws and regulations especially should be subjected to the highest standard of scrutiny. Her Brooklyn-inflected accent remained, but the ever-present pauses in the middle of a sentence were now absent, replaced with a confident tone with emphasis added on key words.
Pointing out the erratic fashion in which lower courts were ruling on sex-discrimination cases, she emphasized the need for the high court’s guidance. Moving on to the similarity of sex-based and race-based discrimination, she carefully elaborated on Murray’s classic statement, answering questions before they were asked. Addressing the objection that the equal protection prescription had been designed to address the problems of blacks, not women, she observed that not just race but national origin and alien citizenship had been made suspect classifications. “The newcomer to our shores was not the paramount concern of the nation when the Fourteenth Amendment was adopted.” If the amendment could embrace ethnic diversity, was it not capacious enough to include women?
Clearing her throat, Ginsburg took aim at the government’s argument that women as a majority had little need for suspect classification in order to secure equality, countering with evidence to the contrary. Neither in the past nor at present had their greater numbers brought them equal treatment. Citing examples of discriminatory practices sanctioned by law and society, she argued that though the forms of discrimination were now subtler, sex-based discrimination was no less stigmatizing. The appellee’s argument—that “no close scrutiny of sex-based classifications is warranted…unless and until the Equal Rights Amendment comes into force”—she pronounced “unsatisfying.” Because the “notion of what constitutes equal protection does change…clarification of the application of equal protection to the sex criterion…should come from this Court.”
Nearing the end of her list of reasons why strict scrutiny was appropriate, Ginsburg concluded with her favorite quotation from the nineteenth-century abolitionist and feminist Sarah Grimké: “I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks.” She then quickly summarized her argument. Astonishingly, not a single word from the bench interrupted her statement.
“Incredible” was Feigen’s admiring summation of Ginsburg’s performance. “Ruth spoke eloquently without a note, never pausing except for inflection….You could have heard a pin drop.” But how to account for the highly unusual silence from the bench? Marty shared Feigen’s apprehensions. Were the justices politely letting his wife go through the motions? Ruth attributed the silence to indifference; they just “weren’t interested” in what she had to say. What none of the three could have anticipated was the impact on Justices Blackmun and Marshall.
Blackmun, who regularly graded lawyers arguing before the Court, privately gave Ginsburg a C plus, noting that she was “very precise” but too “emotional.” He disliked “emotion”—a quality he found overabundant in both her Reed and Frontiero briefs, though precisely what he meant by the term is unclear. (The Reed brief he also termed “mildly offensive and arrogant,” though admitting that Sally Reed’s lawyers nonetheless had the stronger argument.) Why Blackmun was so offended by “emotion” is unclear. Certainly, he would not hesitate to appeal to feeling in his future dissent in DeShaney v. Winnebago County, which included the famed lines “Poor Joshua! Victim of repeated attacks by an irresponsible, bullying, cowardly, and intemperate father.”
According to his biographer Linda Greenhouse, Blackmun had a hard time understanding the feminist movement, despite the accomplishments of his wife and daughters. The litigation effort Ginsburg had mounted made him “wary and a little grumpy.” Perhaps he was put off by the Grimké quotation. More likely, he saw “emotion” in any discussion of women’s longtime legal disadvantages. As he had made clear in his notes on the Reed brief, he had no use for historical background as argument and hoped any mention of it could be avoided by the justices themselves—a predilection he clearly discarded in Roe.
Blackmun also made a further notation. Next to Ginsburg’s name he wrote “J”—his abbreviation for “Jew.” Did the designation reflect the midwestern provincialism of a self-styled “country boy”? Or did he associate Ginsburg’s ethnic and cultural background with negative stereotypes?
Marshall had a very different reaction. Initially willing to let the decision of the court of appeals stand, he had voted against hearing the case. But Ginsburg’s argument apparently convinced him. Not only should the decision be overturned, he decided, but strict scrutiny might now be an appropriate standard for sex-based as well as race-based discrimination.
Next, Samuel Huntington spoke for the government, delivering a twofold argument defending the statute in question. Differential treatment, he contended, achieved administrative efficiency and was a reasonable governmental object. Measured by the rational basis standard, which was the appropriate standard, the law did not constitute a violation of equal protection. The argument—precisely what Ginsburg had anticipated—generated so many interruptions from the bench and so much murmuring among the justices that at times it was difficult for those in the back of the room to hear Huntington’s responses. To whom did the statute apply? To whom did it not apply? And more to the point, what did it cost?
Once the questions subsided, Huntington tried to distinguish his case from Reed. No statistical evidence supported the Idaho statute’s underlying assumption that men were better administrators of estates, whereas the government had statistical data indicating that “most” military women did not have economically “dependent” husbands. Again the justices peppered him with queries about what administrative benefits might actually be gained by the government. Huntington gamely tried to respond. But he was forced to acknowledge that he could not back up his premise that administrative efficiency was the reason for specifying differential treatment.
Following the session, the co-counsels parted. Ginsburg turned to compliment Huntington on his presentation, delighted that he, too, had made the argument for extension. Then, to her great surprise, she suddenly realized that the short, stocky man with glasses standing before her was none other than “the Gris,” the solicitor general himself. She had always thought that her former Law School dean saw her as a nuisance because of her two visits to his office with family-related requests—encounters that invariably underscored her anomalous status as a woman. Yet Griswold shook her hand enthusiastically. Although she could not recall his precise words, she distinctly remembers that from that day forward he was much friendlier to her. With his initial congratulatory handshake, he seemed to be signaling that he finally accepted her as “a member of the club.” For the young woman whom he had challenged in 1956 to explain why she was taking the place of a man, the long-deferred recognition was gratifying.
After a brief visit with a friend at Georgetown Medical School, it was time to catch the flight home. Marty was staying in Washington overnight. Feigen proceeded to escort Ruth back to the shuttle with all of the casebooks in tow. Marty knew that his wife’s navigational skills were imperfect at best and she seemed a bit numbed by the experience. He also knew that she attached great importance to being at home for dinner with the children, or at least to say good night.
The SCOTUS, 1973. Standing L–R: Justice Lewis Powell, Justice Thurgood Marshall, Justice Harry Blackmun, Justice William Rehnquist. Seated L–R: Justice Potter Stewart, Justice William Douglas, Chief Justice Warren Burger, Justice William Brennan, Justice Byron White.
When the justices met in conference to discuss Frontiero, the chief began by saying that he saw no parallel with Reed. In his view, Congress definitely had the right to draw lines on the basis of sex in the military. As usual, Burger, for all his dedication to the Court and to the judiciary, rambled on, unable to exert the leadership and persuasive power that had so distinguished his predecessor. (In notes taken at a later conference Blackmun wrote, “CJ keeps yapping.”)
Most of Burger’s colleagues, who spoke in order of seniority, objected. Constitutional guarantees of equal protection, they contended, must take precedence in a situation where no vital military matter was at stake. Douglas, Brennan, Marshall, White, Powell, and Stewart were all prepared to reverse the district court’s decision. Blackmun was undecided. Only Rehnquist stuck with the chief. Seeing that there was a clear majority in favor of reversal, Burger then proposed that they handle Frontiero as they had Reed. The Court would strike down the particular laws at issue. Brennan, Douglas, White, and Marshall, each of whom had been impressed by Ginsburg’s argument for strict scrutiny, wanted to go further. But with the exception of Rehnquist, they accepted Burger’s proposal.
The chief justice then delegated the opinion to Douglas, who, as the senior member of the majority, passed the assignment to Brennan. Having avoided a decision of strict scrutiny, the chief probably felt that Douglas’s decision to let the ultra-persuasive Brennan draft the opinion was safe.
Brennan directed one of his clerks, Geoffrey Stone, to prepare a draft indicating that the statute did not pass muster under the most lenient standard of review, but to avoid taking a position on “suspect” scrutiny. Stone objected. If the Court was going to subject sex-based classifications to a higher standard of scrutiny, it ought to come out and say so. The two debated the merits of the approach, and Stone decided to prepare an alternative draft, which he assumed they would discuss the following day. By the time Stone arrived at Brennan’s chamber the next morning, the justice had made his decision. He sent around Stone’s alternative, proposing a broad constitutional ban on sex-based discrimination. In his covering memo, Brennan noted that Douglas and White preferred the “suspect” criterion, as did he. A flurry of other memos followed. With positions now fully revealed, the stage was set for negotiation.
William J. Brennan Jr., a preeminent strategist and the most influential liberal justice of the twentieth century, 1956–90.
White had already responded, noting that he and Marshall both thought the Court had moved beyond a rational basis test in Reed. “In any event,” White added, “I would think that sex is a suspect classification, if for no other reason than the fact that Congress has submitted a constitutional amendment making sex discrimination unconstitutional. I would remain of the same view whether the amendment is adopted or not.”
Powell replied that he saw no reason to consider whether sex was a “suspect classification” in this particular case. “Perhaps we can avoid confronting that issue until we know the outcome of the Equal Rights Amendment,” he added, echoing the government’s point. Stewart, who had recently indicated to Brennan that he might be amenable to consider sex a suspect classification in connection with another case, replied that while he was prepared to overturn the lower court’s ruling on Frontiero, he agreed with Powell. Sex-based discrimination, in his judgment, was more complicated than race-based discrimination. Laws discriminating on the basis of sex that appeared to benefit women, he acknowledged, often failed to do so in practice. But he, too, was not yet ready to conclude that gender distinctions were always invidious, arbitrary, or irrational.
Blackmun, who especially in his early years on the Court experienced great self-doubt about his votes, was going through his usual “Hamlet-like approaches” as he tried to justify his decision. Equal protection cases concerning strict scrutiny of laws involving legal foreign-born U.S. residents had recently been decided. Upon reading the brief, he had assumed the same course would be followed with women as with noncitizens. But when Powell and Stewart held back, he found himself conflicted. His Roe v. Wade opinion, released five days after oral argument in Frontiero, elicited far more personal criticism and vitriol than he had anticipated. He was loath to become the swing vote in a decision that would fundamentally change legal doctrine on sex discrimination.
Brennan, unfazed, persisted in his search for a fifth vote. He knew that his alternative, if accepted, would effectively usher in the ERA. But he saw no reason to wait for the remaining states in a matter of civil rights, especially because eleven states had already voted against ratification and four more were likely to do so within the next month or two. The trend in state legislatures, Brennan pointed out in a memo to Powell, had become not to ratify and even to rescind prior votes on ratification. As a good Virginian, he must surely be aware that his home state had rejected the ERA and that the additional votes required for the amendment to become part of the Constitution were proving elusive. “I therefore don’t see that we gain anything by awaiting what is at best an uncertain outcome,” Brennan ventured. Whether or not ratification succeeded, “we cannot ignore the fact that Congress and the legislatures of more than half the States have already determined that classifications based on sex are inherently suspect.” For the Court to act with such evidence of majority approval, he continued, could hardly be considered a raw exercise of judicial power.
But Powell, who was being wooed as Brennan’s fifth vote, was reportedly put off by the language of the second draft, which sounded too “women’s lib” for his taste—as, evidently, had parts of Ginsburg’s amicus brief and oral argument. More to the point were the facts Brennan cited about legislative foot-dragging on ERA ratification. What Brennan considered evidence to support strict scrutiny, Powell saw as a reason not to make sex discrimination suspect. If states were rescinding their votes for ratification and others were failing to ratify, the better part of wisdom should be to wait for the final count. Concurring in the judgment in Frontiero but not on a higher standard of scrutiny, he then circulated his own draft.
Burger, reacting to the “ ‘shuttlecock’ memos,” sent Brennan a blunt reply: “Some may construe Reed as supporting the ‘suspect’ view but I do not.” At some point, he added, “I will perhaps join someone who expresses the narrow view expressed by Potter [Stewart], Harry [Blackmun] and Lewis [Powell].” Upon receiving Powell’s draft, Burger signed on, noting that his own endorsement was meant as a “puny effort to mute the outrage of ‘Women’s Lib.’ ” Rehnquist still dissented.
On the question of strict scrutiny, the count was now 4–4, with Stewart holding the deciding vote. Stewart disagreed with the Griswold-Powell argument that the pending ratification precluded the Court from acting, but he also disliked equal protection cases. They invariably put the Court in a position that elicited charges of judicial legislating. As a judicial minimalist, he thought it far better for the Court to decide case by case, striking down laws one at a time, letting precedent build, and then delivering the ultimate blow. Besides, he, too, was confident that the ERA would be ratified, despite the warning signs noted by Brennan. Urging his colleague not to publish the alternative draft as a plurality opinion without his vote, Stewart argued that it would be harder in subsequent decisions for him to join the Brennan four without appearing inconsistent to outsiders.
Brennan declined to wait. He was convinced that strict scrutiny was the proper approach. He had come so close—so very close—to writing another landmark ruling. If only Warren or Fortas had been on the Court, he later lamented to his clerks, he could have won. His former colleagues would not have been so intimidated by charges of judicial legislating. And Warren would have seen to it that they achieved “the right result.”
When the decision was delivered on May 14, 1973, Brennan, writing for a four-member plurality—including Douglas, White, and Marshall—declared the sex-based military laws unconstitutional. Rehnquist was the lone dissenter. Burger joined Powell’s concurring opinion along with Blackmun. Stewart issued a separate one-sentence concurring opinion. Attacking classification by sex, Brennan noted that stereotypes—whether about the economic dependency of wives or husbands or any other characteristic—frequently bore no relation to a particular individual’s situation. “Statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members,” he stated.
As for the government’s contention that the classification was rational in that it saved the government time and money, Brennan declared, “The Constitution recognizes higher values than speed and efficiency.” In denying husbands of female members of the armed forces the same benefits provided to wives of male personnel, the laws had denied similarly situated individuals equal protection. The four justices also suggested that they might go further on strict scrutiny, declaring that “classifications based upon sex, like classifications based on race, alienage, or national origin, are inherently suspect and must therefore be subjected to strict judicial scrutiny.”
Sharron Frontiero and her counterparts in the military had won a resounding victory. “The law came in like a great white knight for me,” the former lieutenant later exclaimed. “We could have tried to change public opinion, but the law came in and changed reality.” The author of her amicus brief, on the other hand, had reason to be disappointed. She had lost her appeal for strict scrutiny, though she had come agonizingly close.
Ginsburg would not learn the full extent of the maneuvering on the high court until 1979, when Bob Woodward and Scott Armstrong published The Brethren, based on their confidential discussions with law clerks. But close reading of Powell’s concurring opinion yielded a strong hint. Writing as if the majority opinion were the alternative draft, Powell attacked “the Court” for preempting “by judicial action a major political decision.” From that statement, Ginsburg could surmise two things. First, Powell must have written his response when it appeared that Brennan had a majority for strict scrutiny, which would have made the remaining state votes on ratification of the ERA unnecessary. Second, Stewart, or possibly Blackmun, was the swing vote that eluded Brennan’s grasp. Otherwise Powell’s concurring opinion, with its attack on his colleagues, made no sense.
The popular press and other interested observers might not have shared Ginsburg’s sensitivity to the politics of the Court’s opinion, but they clearly understood the case’s importance. The Frontiero decision generated a warm letter of thanks to Brennan from the chairperson of the Defense Department’s Advisory Committee on Women in the Services. There were also handwritten notes from women who, even though they had no family members in the military, nonetheless wished to thank the justice for what the decision might mean for their daughters and granddaughters. The press showered him with bouquets as well. The Washington Post and the Los Angeles Times both deemed the decision front-page news, while The New York Times declared the “decision fell just short of a major triumph for the women’s rights movement.” The Boston Globe quoted Ginsburg’s statement that the Frontiero decision was “the most far reaching and important ruling on sex discrimination to come out of the Supreme Court yet.” Her sentiments were also echoed by U.S. News & World Report.
Legal journals agreed that the decision was a significant advance for women’s rights in that four justices had opted for strict scrutiny in so short a time. Yet there were troubling aspects of the case. The lack of a fifth vote meant that the Court had now made a constitutional ban on sex discrimination in the form of the ERA the only option. Also, in interrogating Levin and Huntington, the justices had betrayed an eagerness to get at the hard costs involved. This line of questioning suggested that several might have been willing to uphold the statutes had the government provided better data supporting a legitimate economic rationale for differential treatment. However, most reviewers, echoing Gunther’s earlier assessment of Reed, agreed that at the very least Frontiero made clear that “the old ‘minimal’ scrutiny of sex classification” was “dead.”
Ginsburg’s reaction was mixed: pride in what she called this “near great leap forward,” but regret at the lack of a majority to secure strict scrutiny. Publicly, she made every effort to emphasize the case’s historic significance. Privately, she believed Brennan had overreached. As the master builder of a majority, he knew better than most that the number of votes was what counted. “Five” was the most important word in the Court, he told his clerks every year, holding up his hand, fingers outstretched.
Disappointed though she was, Ginsburg looked ahead, keeping in mind the prediction of her former mentor and friend Gerry Gunther. In his assessment of the Supreme Court’s 1971 term, Gunther was no doubt aware of the prevailing tendency of the Court to reject overbroad rules and imperfect proxies that did not take into account exceptions in areas ranging from the First Amendment to voting rights. The Burger Court, for the most part, he concluded, was prepared to expand the scope of the equal protection clause so long as it could find some middle ground short of strict scrutiny. If Gunther’s assessment was correct—and Frontiero indicated that it was—then it would be even more imperative, Ginsburg reasoned, to take a “middle ground” approach, one that would move the Court as close to a standard of strict scrutiny as she could get.
In the future, her briefs would have to be further targeted to the swing voters in the center of the bench—Stewart, Powell, and Blackmun—whose grasp of sex-discrimination complexities was less sure than that of Brennan and his allies. They assumed that applying a more rigorous standard meant that sex-based distinctions would always be found invidious, arbitrary, or irrational. Exceptions were hard to grasp, she acknowledged, in part because the right case illustrating an exception had not yet presented itself, and in part because thinking in terms of sexual difference had become so naturalized. As Powell had written, “If and when it becomes necessary to consider whether sex is a suspect classification, I will find the issue a difficult one. Women certainly have not been treated as being fungible with men (thank God!).”
If skeptical justices could see how gender categories adversely affected men, then they might perceive more easily how women were harmed. She had a new Social Security case for a retired widower she was eager to pursue. For an advocate whose ideas about gender equality had been shaped by the Swedish ideology of jämställdhet, using a male plaintiff to show how gender discrimination could simultaneously harm both a man and a woman was an easy decision.