· CHAPTER 11 ·
Coping with a Setback
As the national upheaval of Watergate unfolded in Washington and the ten-year travail in Vietnam neared an end, a reporter in search of other stories turned to the Women’s Rights Project. To spice his account, he asked for personal anecdotes about Ginsburg. “There are no anecdotes,” he was told. Ruth is “almost pure work.” How could she not be as her responsibilities mushroomed and her litigation agenda came under threat?
Ginsburg’s paramount objective during the 1974–75 term was taking two new Social Security cases through the federal district courts, both of which were destined for the high court. One, a Social Security benefits case, involved a widowed father and his infant son. For those justices just beginning to recognize gender discrimination against women, Wiesenfeld would demonstrate that it could cut both ways. Neier had additional plans for the head of what was fast becoming the nation’s premier feminist litigation unit. He invited Ginsburg to serve as ACLU general counsel—one of three—and to stand for election to the national board. She welcomed her new role as general counsel. Working with the ACLU heavyweights Norman Dorsen and the “marvelously wise” Osmond Fraenkel would not only be an enviable learning experience but also give her a hand in shaping every aspect of the ACLU’s litigation program. Campaigning for a seat on the national board, on the other hand, was not her métier.
Local ACLU affiliates were inundating the New York office with requests for advice on their cases. It was Feigen’s job to advise the affiliates on priorities and keep them informed on pending cases, the importance of follow-up litigation, and legislative lobbying. But her intense involvement in litigating against compulsory sterilization and working on ERA ratification proved all consuming. Ginsburg wound up not only responding to questions from the affiliates about litigation but also updating the press about new cases, responding to law students writing case notes for their law journals, and answering “every nut from Waukegan who writes in with his problems,” as a Columbia colleague dryly noted. But with a full teaching schedule at Columbia, even she recognized that she had to have backup.
With a grant from the Rockefeller Foundation, Ginsburg created the Equal Rights Advocacy Project at the university, which would work in tandem with the Women’s Rights Project. New apprentices from the second- and third-year classes would provide research assistance for the massive report newly requested by the Commission on Civil Rights as well as for briefs. They would also draft memoranda and court papers, communicate with parties and cooperating lawyers, and serve with faculty members at Columbia as moot court judges. Those who contributed substantially to cases reaching the Court would get the promised seat at the counsel’s table during oral arguments.
For students like Lynn Hecht Schafran, who felt that she and her classmates had too many classes unrelated to the way the law is actually practiced, the chance to work with “a real live plaintiff” for the Equal Rights Advocacy Project was a dream job. Better yet, it came with the opportunity to work with a professor whose litigation would make history, though, as M. E. Freeman readily admitted, “I didn’t fully understand the importance [of some of the things I worked on] at the time.”
Neier also applauded the arrangement. But he worried about Ginsburg’s unwillingness to campaign for a seat on the ACLU’s national board of directors. When she was introduced at the board meeting, her performance almost drove him to distraction. Candidates for the board usually had no trouble touting their credentials. But Ginsburg refused to utter a single word about her qualifications. Convinced that she would have to talk about herself if requested to discuss her cases, Neier asked her to describe her litigation agenda. She provided information about her various cases with great animation and enthusiasm, but always in terms of what the ACLU did or planned to do, never in terms of what she had done or might do. Amazed that anyone so qualified and ambitious could be so extraordinarily self-effacing, Neier breathed a sigh of relief when she nonetheless won a seat on the board in what he wryly noted was a “rare display of good judgment” on the part of the ACLU electorate.
But before the new general counsel and board member could return to her Social Security litigation, Ginsburg found herself saddled with a case she fervently wished would disappear.
Mel Kahn, a Florida widower, had persuaded his local ACLU chapter to challenge an 1885 Florida law that provided a property-tax exemption of up to $500 for widows, for the blind, and for the totally disabled but not for widowers. When the Dade County tax assessor refused him the exemption, which would have netted him $15, he claimed to be a victim of sex discrimination. The court found in his favor, agreeing that he had been denied equal treatment under the “basic rights” provision of the Florida Constitution. The Florida Supreme Court overturned the decision, ruling that the state had properly used the tax exemption to reduce well-known income disparities between the sexes. Kahn’s attorney, new to the ACLU, appealed, unaware that he needed prior approval from the national office. Reading in Law Week that the Supreme Court had granted probable jurisdiction, Wulf and Ginsburg were stunned.
The timing could not have been worse. Kahn v. Shevin disrupted her strategy of leading the Court to a fuller understanding of gender discrimination in a carefully chosen sequence of cases. Women were not directly disadvantaged by the Florida exemption. Worse still, Kahn was a case of reverse discrimination. The Court was just beginning to think about the issue of reverse discrimination with respect to race, where whites claimed to have been penalized by affirmative-action programs intended to benefit African Americans and other nonwhite minorities. It was entirely too early to broach this thorny issue in relation to gender. The justices were not yet equipped to distinguish between benign discrimination—action targeted for limited duration to a specific group to compensate for specific past disadvantages and ameliorate injustice—and paternalistic discrimination based on old stereotypes that perpetuated inequality. The two forms of discrimination could be easily confused or conflated in the hands of a skilled lawyer.
If the ACLU lost, she predicted, Kahn would reinforce the idea that women required different (special) treatment to protect them, thereby giving new justification to the very stereotypes that the ACLU had chosen to attack. Government lawyers, intent on maintaining the status quo, would have a fresh precedent to use in future cases involving other forms of protection. Kahn was “big trouble.”
Wulf and his associates agreed. But the Court had already accepted the case, setting oral argument for February 1974. A resigned Ginsburg called William Hoppe, Kahn’s Florida attorney, to ask if she could help. But how to argue the case? “I’ll give you a gold medal if you can suggest any route other than equal protection for widower Kahn,” she wrote to a friend.
Early sex-discrimination cases, including her own, had relied on the race-sex analogy to alert justices to comparable harms inflicted by stereotyping. But the last thing Ginsburg wanted to do was elicit comparison of the harm suffered by Mel Kahn with that inflicted on African Americans. Avoiding the analogy, she would try to expose how antiquated gendered stereotypes underlying the law for both sexes penalized individuals.
The paradigm of male providers and economically dependent wives that informed the 1885 law, she would argue, had no basis in biology and was no longer tenable. In 1973, wives earned more than their husbands in over 7 percent of families, despite the disadvantages that women continued to suffer in the labor market. “Although discrimination against women persists and equal opportunity has by no means been achieved, women simultaneously have been placed on a pedestal and given special benefits. Both discrimination against, and special benefits for, women stem from stereotypical notions about their proper role in society.” Florida’s tax exemption, which rested on stereotypes, was sexually discriminatory by being both over- and underinclusive, benefiting affluent widows while disadvantaging widowers of limited means like Melvin Kahn. Moreover, the exemption bore no rational relationship to the state’s objective of countering discrimination against women because female heads of household were not included. When the December holiday break arrived, she carried case material to Puerto Rico, where the family was vacationing, determined to stay in her hotel room until she finished the brief. Only then would she put on her water skis and allow herself the physical exhilaration of skimming over the ocean at great speed without losing control.
On the family’s return to New York, the sun-bronzed attorney sent a copy of the appellant brief to Gerald Gunther. What should she emphasize in the oral argument? she asked. Gunther termed the brief “a fine job—strong throughout.” Ginsburg, having become persuaded by her argument in the course of writing the brief, was delighted. Surely the Brennan four, who had favored strict scrutiny in Frontiero, would agree that the Florida tax exemption should not rest on a sex-based classification, even if widows as a class were more needy than widowers. But persuading Powell, Stewart, or Blackmun would be difficult in a case where the benefit seemed so harmless—“just a little boost.” Also, tradition weighed heavily in favor of allowing states and localities large leeway in devising their tax laws.
Oral argument would require especially careful preparation—all the more so because Kahn had been scheduled for Monday, February 25, 1974, to precede DeFunis v. Odegaard, the first test of affirmative action to reach the Court. The core question in the DeFunis case was, what kind of special treatment—if any—based on racial and ethnic classification might pass constitutional muster? Was there a difference between benign discrimination (intended to end the vestiges of slavery and the economic disparities created by decades of government policies intentionally benefiting whites only) and invidious or negative discrimination (for example, exclusion of earlier generations of African Americans from professional schools)? If race merited strict scrutiny, must policies be color-blind? Given the sequencing of the two cases, Ginsburg speculated, the justices might well ask, if race-based preferences were permissible for blacks, why shouldn’t sex-based preferences, such as widows’ tax exemptions, be acceptable for women? The Court would presumably be interested in consistency, given the extent to which race and sex discrimination had been analogized in Reed and Frontiero.
A little more than a year had passed since Ginsburg’s Supreme Court debut. As she again approached the Marble Palace on this wintry mid-Atlantic day, she hoped that members of the Court would prove to be as attentive as she assumed they had been when she argued Frontiero. But it was not to be.
Bombarded by questions before she had barely begun, Ginsburg was caught in precisely the line of questioning she had hoped to avoid. Was she arguing that sex “ought not to be treated as a suspect classification”? Knowing that she lacked a fifth vote for suspect classification, she had not asked for it. Trying to respond and then move on to her key points, she replied, “I have not yet found any such [sex-based] classification in the law that genuinely helps. From a very shortsighted viewpoint, perhaps, such as this one, yes. But in the long run—no…[Women] are the only population group that today still faces outright exclusions and restrictive quotas…[T]he notion that they need special favored treatment because they are women, I think, has been what has helped to keep women in a special place and has kept them away from equal opportunity for so long.” Going on to quote Title VII, she pointed out that the single woman head of household who never marries is most harmed by the statute in question.
Not until the rebuttal did Ginsburg finally have the chance to address the relationship between race and sex discrimination. Justice Blackmun asked, “How would you distinguish Kahn from DeFunis?” Both women and blacks, she replied, had been subject to a long history of legal and political discrimination. Race-based compensatory treatment, at issue in DeFunis, was a current measure intended to foster equality by increasing minority presence in professions that had long excluded them. By contrast, the “preferential” treatment accorded women by Florida’s antiquated law reflected a view of women as men’s wards—as the dependent, disabled sex. It was hardly intended to promote marriage equality and women’s participation in life beyond the hearth. Quite the contrary, it reinforced the kind of stereotyping that limited individual choice and equal opportunity.
By the time Ginsburg had made her point, Justice Douglas was no longer present, having slipped away from the bench for the remainder of the argument. Ginsburg was unconcerned. She knew that he had been favorable to women’s rights in the past. Surely she had made her point so clearly that someone of Douglas’s acumen would have seen the logic of her argument.
Her unease had to do with the other justices whose queries indicated that they did not yet understand why a sex-based classification might be objectionable when most of the women who benefited from the exemption were economically disadvantaged. Their problem, she realized, had in part to do with the analogy with race-based discrimination. When compared with the harm inflicted by Jim Crow laws, the impairment suffered by women because of Florida’s tax law paled in significance. Consequently, her effort to point out the paternalistic discrimination inherent in the statute seemed much too fine a point for the men in the middle. Blackmun, for example, pronounced her argument “too smart.”
When the members of the Court met in conference, the lineup was predictable—with one glaring exception. Brennan, White, and Marshall were prepared to reverse the lower court’s decision. Douglas, however, joined Burger and Rehnquist in upholding the widows’ exemption under the old rational basis test, arguing that “women as widows are largely destitute.” Blackmun, expressing “discomfort” with the “rationality” of Florida law’s stipulation of widowhood rather than need, was inclined to reverse. But it was a tax statute. He, along with Stewart and Powell, thought it hopeless to try to bring logic to tax law—federal or state. The vote to uphold the statute prevailed.
When the conference on Kahn ended, Douglas, as the senior justice in the majority, was left to write an opinion affirming Florida’s differential treatment of widows and widowers. Ordinarily, he turned out his opinions quickly, often scribbling the first draft with minimal substantive input from his clerks. In this instance, however, he began by asking his law clerk Ira Ellman questions about the case. Ellman initially failed to understand why he was being interrogated. Was the justice disturbed by the illogic of voting for strict scrutiny in Frontiero and DeFunis and then voting to deny the equal protection claim in Kahn? Douglas finally managed an explanation several days later. Unlike Brennan, he confessed, he was not overly concerned with doctrinal consistency. What troubled him most was memory of his mother’s experiences as a widow. “He didn’t want to endanger the tax break that Florida gave to widows,” Ellman recalled.
Aware that he had only one day to produce a draft, the apologetic clerk turned “a gender discrimination claim…into a tax case.” Expanding on the premise that the rationale for the statute was the economic gender gap, he cited Labor Department statistics that confirmed the lower earnings of women, on average, compared with men. Loss of a spouse, he argued, would typically be worse for a widow than for a widower who would presumably continue working when his wife died. Tax relief, therefore, cushioned the impact of spousal loss for the sex most in need of a financial cushion. The draft “was short, if not sweet,” Ellman recalled, and Douglas took it. Having written an opinion for DeFunis that reflected great insight into the conflicting values at play in affirmative action, the ailing justice apparently felt his work was done.
When Douglas circulated his Kahn opinion, Marshall and Brennan dissented, explaining that they found the law overly inclusive because wealthy as well as poor widows benefited. They would have joined the majority in upholding the Florida law if it had been means-tested so as to exclude affluent widows. Only White was prepared to declare any tax break available to one sex but not the other in violation of the Fourteenth Amendment. If the purpose of the law, as the Douglas opinion asserted, was to alleviate past discrimination, then the law should have applied to “all those widowers who have felt the effects of economic discrimination, whether as a member of a racial group or as one of the many who cannot escape the cycle of poverty,” White declared.
When the Court released its ruling on April 24, Ginsburg’s reaction was “amazement and disappointment.” She could understand that Brennan and Marshall might fear that they would seem inconsistent if they upheld race-based preference in the form of affirmative action for blacks while denying sex-based preference in the form of a tax exemption for widows. But she found Douglas’s vote absolutely baffling. He had flatly rejected race-based compensatory treatment in DeFunis, claiming that it “stigmatizes” blacks, yet upheld sex-based compensatory treatment in Kahn. Apparently, he thinks “it’s ‘benign’ to rank widows with the blind and totally disabled,” she grumbled. His opinion, she lamented, “is a disgrace from every point of view. I’m ashamed of Stewart for associating himself with such sloppy work.”
Though Ginsburg would stand by her assessment of the majority opinion, she softened her judgment of Douglas upon receiving a letter from an Emory University Law School student who was preparing a case note on Kahn. Read Douglas’s new autobiography, Go East, Young Man, the student urged. The justice’s father, Ginsburg learned, had died when young Bill was five, leaving a widow and three children to endure years of poverty in central Washington. Douglas, his older brother, and his younger sister worked odd jobs throughout their youth to keep the family afloat. Clearly the experience had made an indelible impression on the justice, as his clerk later verified.
But even this additional insight did little to ease Ginsburg’s acute disappointment. A ruling that put women in the same category as the blind and the disabled she found totally unacceptable. She was reminded of a comment allegedly made by Harvard’s president, Nathan Pusey, when the Vietnam draft call was at its height. Harvard, he is said to have lamented, will “be left with the blind, the lame, and women.” The classification in Kahn, she reiterated, was “barely distinguishable from other products of paternalistic legislators who regarded the husband more as his wife’s guardian than her peer.” Moreover, it “reinforced the role-typing that so often placed women ‘not on a pedestal but in a cage.’ ” Indeed, she lamented, Kahn might be the greatest blow to the concept of equal treatment since Hoyt.
Nor was she comforted by the outcome of other gender-related decisions reached in the 1973–74 term. Schlesinger v. Ballard (1975) upheld a military ruling that seemed to favor female naval officers by granting them a longer time to achieve promotion under the navy’s new “up or out” policy. But the sex-based barriers that necessitated special treatment in the first place were ignored. Similarly, the Court rejected the Cleveland Board of Education’s mandatory maternity leave rule that left otherwise fit teachers idle and unpaid, but not on the equal protection grounds that the case had been argued. And in another pregnancy case, Geduldig v. Aiello, six members of the Court agreed that excluding pregnancy-related disability from California’s 1974 Unemployment Insurance Code was not sex-based discrimination inasmuch as it was a physical condition—not gender—that was the basis for exclusion.
That the Court would strike down statutes having a negative impact on women (Reed and Frontiero) while upholding those that favored women (Kahn and Ballard) ignored the complexities of how inequality is constructed and maintained. Such reasoning, Ginsburg insisted, was naive and optimistic—a “Panglossian” rationale. Resorting to damage control, she resolved to do what she could to blunt the impact of Kahn, treating it as an aberration occasioned by a tax issue in her article titled “Gender in the Supreme Court” for the University of Chicago’s Supreme Court Review. In her forthcoming lecture tour as Phi Beta Kappa Visiting Scholar, she vowed not only to explain Kahn but also to discuss “the pregnancy problem” and promote ratification of the ERA at every stop.
Meanwhile, Ginsburg’s sparsely furnished office at Greene Hall became a mecca for students. Women in the first-year law class jumped from 8 percent of the class in 1970 to 20 percent in 1972–73 and then to 32 percent by 1980. A bright, motivated, feisty lot, they flocked around the only tenured woman on the faculty, finding much that appealed. Unlike the few other women in the profession in the early 1970s who so conformed to its masculine norms that they seemed to be little more than “male impersonators,” Ginsburg proved to be a role model for women such as Diane Zimmerman. Highly accomplished, Ruth “did not hide” her femininity and family. Nor did her restrained, low-key demeanor conceal a kind, thoughtful, deeply caring individual.
“I think I took every course Ginsburg offered,” recalled Jane Booth, “and I really struggled with law school, especially my first year. I remember my initial impression in our big civ[il] pro[cedure] class.” She was an “extremely knowledgeable, highly analytical lecturer, who had an example to answer any question we might ask.” She was never “off-the-cuff.” More intellectual than some of her colleagues, “she didn’t see it as part of her role to entertain.” In small sex-discrimination seminars, however, she caught fire as she talked about “litigation strategy, timing, the importance of knowing civil procedure so that you never had a case dismissed for procedural reasons, and, of course, precision….Her great gift to us was her perfectionist standards.” Getting trained by Ginsburg, Booth added emphatically, “was the best legal experience I had in my three years of law school….She brought out the very best in all of us, never once implying that we had to adopt her [workaholic] lifestyle.” What is remarkable, Booth continued, is that “Ruth kept tabs on us long after we graduated. I once got a letter from her consisting of a single question: ‘Why are you still working for that jerk?’ I knew she was telling me it was time to move on.”
Women were not the only students who gravitated toward Ginsburg. Gerard Lynch also claimed her as role model—“someone [who], while being a legal academic, could have an impact on the world.”
As the Law School’s representative on the University Senate, Ginsburg had suggested a comprehensive pay equity review. Designed to identify sex-based discrepancies, the review revealed, among other inequities, a differential in the university’s retirement plan. Women received a lower monthly payment because, on average, they lived longer than men after retirement. That payment inequity, Ginsburg concluded, should not go unaddressed.
The university claimed that it was powerless to change a policy decided by the Teachers Insurance and Annuity Association, the insurer for many private universities and colleges. But having heard the “our hands are tied” response from the administration in connection with the layoff of Columbia maids, Ginsburg wasn’t buying.
Turning to her female colleagues, she persuaded Chien-Shiung Wu, an internationally renowned physics professor and former member of the Manhattan Project, to host a tea party at her apartment near the campus. With Madame Wu’s apartment secured, Ginsburg sent handwritten invitations to top female administrators and all the senior women on the faculty—hardly an arduous task because there were only eleven compared with over a thousand men.
One of the eleven, Carol Meyer, a professor in the School of Social Work, attended the event with initial reservations. Upon arriving, however, she was reassured by “a diminutive woman with black hair, tied with a huge bow.” Ginsburg, Meyer recalled, “was gracious and funny and clearly in command as she told us her purpose in bringing us together.” The result was a suit against Columbia with some one hundred female faculty members and administrators as plaintiffs. While some called the legal action an act of disloyalty to the university, the dean of the Law School, Michael Sovern, came to her defense.
Asked why she constantly took on increasing responsibilities, Ginsburg stated simply that she was just doing what the job demanded. But in fact, she had two jobs as well as editorial board duties for the American Bar Association Journal and The American Journal of Comparative Law, membership on key committees of the ABA, the Association of the Bar of the City of New York, and the Association of American Law Schools, along with meetings of the boards of the many feminist legal organizations on which she sat.
Her children and husband had long ago adjusted to her night owl schedule. When James awakened at five o’clock one morning and wandered out of his bedroom half-asleep, seeing his mother still fully dressed at the dining room table, a cup of cold coffee at her side, did not surprise. He knew that when his dad went to bed around midnight, his mother had to leave her desk in the bedroom and move all of her papers onto the dining room table. There she labored away, sustained by coffee and, according to Jane, ice cream or a box of prunes. As one of her associates later noted, she “could accomplish more between 10 p.m. and midnight than I could all day.” Except that she seldom stopped at midnight.
The acute disappointment over Kahn eased; Ginsburg was ready to revisit the Court during the 1974 fall term, confident that she had her life under control. At home, she had her usual full-time housekeeper. Jane was racing through the University of Chicago, poised to graduate in three years. At the ACLU, Kathleen Peratis, an impressive young Californian, now bore the title of director of the Women’s Rights Project. Handling the day-to-day administration, she absorbed the founding director’s exacting standards and learned quickly to heed her advice on litigation strategy. Yet, as Peratis was the first to point out, “Ruth, while never heavy-handedly imposing her views,…remained very much at the helm.” Adhering to Ginsburg’s advice, the two women bonded so closely that Peratis named her first daughter Ruth. Ginsburg later recalled, “I could say a word to her and she would understand.”
Kathleen Peratis, who worked closely with Ginsburg, took over day-to-day administration of the Women’s Rights Project, freeing Ginsburg for other ACLU responsibilities. The two women have remained close friends.
Free now to focus on the cases that could secure the ACLU’s reputation—and her own—Ginsburg was confident that her years as a rookie at the Court were over. If her future litigation proceeded as she hoped, the equality train, derailed by Kahn, would soon be “back on track.”
The railroad metaphor was apt. With the nightmare of Watergate finally at an end, liberals expected to move forward with an unfinished agenda following a Democratic sweep in the 1974 elections. But the seismic plates of politics were slowly shifting. More than she could have known at the time, losing Kahn would prepare her for a Court and a country increasingly divided in the decades ahead.