· CHAPTER 12 ·
Getting Back on Track
Edna Stubblefield, a nineteen-year-old African American woman from the little Tennessee town of Paris, had gone to a bar where she encountered a rival for her boyfriend’s affections. Words between the two women escalated into a brawl in which Edna stabbed her adversary. A call went out immediately for help, but the first ambulance driver refused to go into the area known locally as “black bottom.” In the long wait for medical assistance, the victim bled to death. When the police arrived, Stubblefield was arrested and, in her subsequent trials, convicted of first-degree murder.
In the early 1970s, the Henry County Jury Commission still systematically excluded blacks from jury service and provided exemptions for any white woman who did not wish to serve. That meant that Stubblefield was denied the opportunity to have a jury of her peers. Yet the Tennessee Court of Criminal Appeals rejected her appeal, as did the Tennessee Supreme Court. With only one appeal remaining, her lawyers had turned to the Women’s Rights Project.
Ginsburg, distressed by the multiple forms of discrimination Stubblefield had endured, responded immediately. If the Court agreed to hear the case, she could pick up where Dorothy Kenyon and Pauli Murray had left off in White v. Crook—the 1966 ruling that allowed African Americans to serve on juries. Striking a blow to jury exemptions, yet another form of “benign” discrimination, would undermine the Hoyt image of women “as the center of home and family life” as the justification for excluding women from jury service.
To Ginsburg’s great dismay, the high court had refused to hear Stubblefield’s appeal. Although the criminal court of appeals had reduced her crime to second-degree murder, both the conviction and the jury-exemption law remained unaffected. Fortuitously for Ginsburg, a test case had emerged in Louisiana—a state that also required women to preregister for jury service—which Ginsburg could take over.
Healy V. Edwards had been transformed into a class-action suit in 1973. Some plaintiffs were women who claimed that in a state where females represented less than 5 percent of the jury pool, they would be disadvantaged should they be charged with a crime. Others objected to the sign-up requirement for women seeking inclusion in the jury pool. Male plaintiffs contended that exemptions for women burdened men with excessive jury service.
Ginsburg was delighted by the range of plaintiffs and the fact that each group had standing. That is, each group involved in the case had such a strong personal stake in the outcome that the Court could be confident that the lawyers for both sides would present the strongest and sharpest arguments possible. Furthermore, all of the groups had been denied due process of law and equal protection under the Fourteenth Amendment. Female plaintiffs, as she pointed out in her brief, were especially vulnerable. Empirical studies indicated that male-dominated juries awarded lower damages and stiffer sentences to women. With respect to juries, men and women were not simply interchangeable. To assume they were—and thus to exclude women—“deprives a jury of a perspective that may be important,” Ginsburg contended, moving to the crux of the issue.
Citing precedent, she referred to Ballard v. United States (1946), where the Court had ruled that jury pools must include women to be considered a fair cross section of the community. The five-member majority had elegantly laid out why both sexes must be included: “The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men—personality, background, economic status—and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel?” Putting the issue bluntly, Douglas, who wrote for the majority, concluded, “[T]he two sexes are not fungible….The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.” While African Americans (and later the Court) would take issue with the last point, Douglas’s observation that the two sexes are not interchangeable and that both are needed to create a representative jury pool was precisely the point that Ginsburg wanted to make.
The problem was that Ballard involved federal court jury selection—a matter over which the Supreme Court exercised supervisory power. Hoyt, on the other hand, involved the power of the states to regulate jury membership. To overturn a state law, a ruling of constitutional dimensions would be required. Fortunately, there was the Reed ruling in which a sex-based classification established by state law had been rejected for similarly situated individuals. That, Ginsburg would argue, was precisely the issue in Louisiana’s jury-exemption law. Hence there were compelling reasons for the district court to hear the case.
With the initial steps completed, Ginsburg began thinking more about the brief. She had already put students in the Equal Rights Advocacy Project to work collecting information on every case since Hoyt involving jury service by women. There was the Stubblefield argument on which to draw.
As the Healy brief took shape, it took the form of a vigorous and carefully documented attack on the core assumption behind the women-only exemptions—that women are constantly preoccupied with and absolutely essential to home maintenance and child care. In 1973, 50 percent of married women with school-age children were in the workforce as well as 70 percent of widowed, divorced, or separated mothers. Jury service, therefore, “would not constitute a disruption of a pattern of continuous child care but rather absence from their employment.”
If concerns for child care were the primary legislative objective, the Louisiana law should not then exempt childless women or women whose children were cared for by others, nor should it ignore men who were responsible for the care of young children. Instead, exemptions should be awarded on an individual basis to persons of either sex who demonstrated that jury service might create real difficulty. In sum, the sex-based classification was “appallingly overbroad” with respect to women, “stereotypically underinclusive” with respect to men, bore no rational relationship to any legitimate state objective, and was, therefore, an unconstitutional denial of equal protection.
The issue, Ginsburg emphasized, was not whether jury duty imposed an undue burden on women; both sexes found it burdensome. Rather, the point was that “jury service is not only a right, it is a statutory duty and a citizen’s duty”—a statement she would later reiterate in her Supreme Court brief. Exempting women from jury service assigns them to inferior citizenship status by assuming that as a class they are incapable of shouldering the same civic rights and responsibilities as men. There was nothing “benign” or harmless about that!
In July 1973, Ginsburg flew to New Orleans to make her oral argument before the federal district court of appeals. The heat and oppressive humidity did not affect her keen awareness of what was at stake. The Louisiana jury system she challenged was virtually identical to that of Florida, which the Supreme Court had upheld twelve years earlier, making the outcome risky. What feminist legal advocates regarded as sterile precedent could be viewed by tradition-minded jurists as binding law. And then there was Kahn to worry about—a precedent that encouraged lawyers defending jury exemptions for women to link them to tax exemptions for widows and term them “benign.” Yet New Orleans–born jurists such as Skelly Wright, John Minor Wisdom, and Alvin Rubin had made history in the federal court by enforcing the law of the land with courage, compassion, and powerful legal scholarship despite cross burnings designed to intimidate. She could only hope they would bring to sex-based discrimination the same clarity they applied to race.
As she stood up to make her argument, Judge Rubin intervened. Asserting that her brief spoke for itself, he asked if she had any points she would like to make concisely. Taken aback, Ruth was torn by conflicting emotions: sheer delight that the court had found her brief compelling and strong disappointment that she would not be able to display her mastery of the issues. After a short statement she left, knowing that she had raised a fundamental question—not about jury systems per se, but rather about the pace of legal change. How soon can precedents be overturned?
She had her answer promptly. On August 31, the three-judge panel announced its decision. Written by Judge Rubin with his customary economy and clarity, the decision declared Hoyt obsolete and no longer binding. Dealing with the question of whether women and men were alike or different and what difference, if any, difference should make, Rubin cut to the core. Women and men were different, he wrote, but not in the rights and obligations of citizenship. “Females, as individuals, bring to juries ‘qualities of human experience’ entirely different from those of males, and a diversity of temperament among themselves, completely heterogeneous. Their absence from jury selection panels,” he explained, “is significant not because all women react alike, but because they contribute a distinctive medley of views influenced by differences in biology, cultural impact and life experience, indispensable if the jury is to comprise a cross-section of the community.”
Ginsburg was delighted. Rubin’s statement captured the issue perfectly. But how would the brethren respond to his dismissal of Hoyt as “yesterday’s sterile precedent” that “courts need not follow”?
When Louisiana appealed the decision, the Supreme Court agreed to hear Edwards v. Healy in combination with Taylor v. Louisiana, even though Louisiana was already in the process of revising its jury-exemption statute. Taylor involved Billy Taylor, a recently convicted felon who had been found guilty by an all-male jury and given a death sentence for aggravated kidnapping. (Wielding a butcher knife, he had abducted and raped a woman in front of her daughter and grandson and robbed all three.) Taylor’s lawyer, William King, searching for some technicality that would allow him to appeal the case, seized on sex-based exemptions. His client, he claimed, had been denied a jury consisting of a fair cross section of Louisiana citizens. Because the two cases would be heard in tandem, Ginsburg and King coordinated their respective briefs and oral arguments.
Appearing before the Court on October 16, 1974, eight months after she had argued Kahn, Ginsburg sat quietly as Louisiana’s assistant attorney general, Kendall Vick, made his case. Vick tried to convince the justices that the case was moot because Louisiana was in the process of adopting a new constitution. Because the new constitution provided that every citizen, regardless of sex, could serve on a jury, Vick pressed the Court to find the case moot. But he failed to convince. Even if, as one justice argued, Healy became moot, “the same issue exists in the next case [Taylor] where there can be no question of mootness.” Mootness, Vick was told, could not compromise the larger “equal protection matter” at stake.
When Ginsburg’s turn came, she was barely able to finish her opening statement before interruptions began. Was this to be Kahn redux? The first question went to the heart of the equality debate. Were women the “same” as men and therefore fungible in terms of the law or were they sufficiently “different” to require different treatment? Did women really need to be on juries for the accused to have a trial of peers because “the new theory was that there is very little difference between men and women”? she was asked.
Ginsburg refused to be trapped by these seemingly mutually exclusive alternatives. She understood that the answer was far more complex than that suggested by relying on binary opposites of sameness and difference. She could have noted that while in many respects the two sexes are the same and can be treated the same, there are circumstances in which a gender-neutral outcome requires differential treatment. But that response would have opened up a line of questioning that she had no wish to pursue. She responded by reminding the Court that Justice Douglas had written in Ballard “that the two sexes are not fungible; that the absence of either may make the jury even less representative of the community than it would [otherwise] be.”
Asked about the present status of the ERA, she replied that there were still five states to go in addition to the two states that had rescinded while only three had ratified. Eager to steer the discussion away from ratification, she returned to the basic arguments of opposing counsel with respect to jury exemptions.
Addressing first the question of administrative convenience, she reminded the Court that it had declared in Reed that administrative convenience did not justify gender-based classification. She then turned to the argument that the exemption of women contributed to family stability. If concern for dependents was the issue, women-only exemptions were overbroad because they included childless women, women with adult children, and women with the means to provide substitute caregivers. Fifty-nine percent of Louisiana’s total adult female population had no children under eighteen, and of the 41 percent with children under eighteen 37 percent were in the labor force.
Why did she treat Hoyt “fairly cavalierly”? she was asked. That was not her intention, she responded respectfully. Ginsburg then skillfully made two points. First, at the time of the Hoyt decision the Court had reasoned that the voluntary system could work if Florida made a good-faith effort to try to get women to serve. It was now clear, as Justice Douglas had noted, that this approach had not worked. Second, women’s labor force participation had risen in the interim, and working mothers were not taken into account in consideration of jury exemption in Hoyt, nor were unemployed women who did not have child-care obligations.
Another question on Kahn quickly followed. Ginsburg grasped the implication instantly. Shouldn’t the law on jury exemptions for women be guided by Kahn, which provided tax breaks for widows? Justice Brennan had already handed her the answer when he verified her interpretation of the Kahn decision as a tax case. The relevance of Kahn, she replied, was that the Court had always allowed the states larger leeway for line drawing in tax codes.
Returning to Hoyt, she argued, “The focus on women jurors caused the Court to lose sight of what should have been the primary focus.” Gwendolyn Hoyt was a battered woman. “Her crime was committed after an altercation in which she claimed her husband had insulted and humiliated her to the breaking point.” Convicted of second-degree murder, Hoyt believed that “women jurors might better understand her state of mind when she picked up a baseball bat and administered the blow that led to litigation.” The Court, Ginsburg continued, “had not focused on the denial of equal protection and due process to Mrs. Hoyt; the focus was on the benign classification of women as jurors rather than the unfairness to the litigant.” Viewed in that light, “the overriding consideration really should not be the burden or the benefit of jury service to prospective jurors, but the fairness of the system to litigants.”
Though other questions followed, Ginsburg’s statement on Hoyt had made an impact. The Court could now “hear” the argument that had been made—but not heard—in 1961. When she concluded her summation, Chief Justice Burger added, “I am not sure you need any defense, Mrs. Ginsburg, but your brief and argument was much less cavalier toward Hoyt than the three judges of the Fifth Circuit.” It was a compliment of sorts, coming from a chief justice who in 1971 had offered a letter of resignation to the president when he learned that Nixon was toying with the idea of nominating a woman to the Court.
Deciding Taylor first, eight justices agreed that Billy Taylor had been denied his right to a jury representing a cross section of the community. By this time, Healy had been rendered moot by an amendment to Louisiana’s constitution putting women on juries on the same basis as men. But the arguments in Healy had been clearly understood. Writing for the majority in Taylor, Justice White declared, “We think it is no longer tenable to hold that women as a class may be excluded or given automatic exemptions based solely on sex if the consequence is that criminal jury venires [panels] are almost totally male….If it was ever the case that women were unqualified to sit on juries or were so situated that none of them should be required to perform jury service, that time has long since passed.”
Marshaling sociological and statistical data as well as judicial precedent, White explained why women were sufficiently different from men to make their absence from a jury significant, yet sufficiently like men that they should not be exempted from jury service. Rehnquist provided the lone dissent, arguing that Taylor’s trial was fairly conducted and that while it might be reasonable to conclude that the Louisiana jury system was an anachronism, it was not the duty of the Court to enforce upon the states its perception of modern life. The notion that some “flavor” is lost if one sex is excluded, he noted, “smacks more of mysticism than of law.”
Rehnquist’s dissent aside, Ginsburg was thrilled with the news, though the taste of victory was bittersweet inasmuch as Billy Taylor rather than Edna Stubblefield had been the beneficiary. Indeed, the Court’s refusal to hear the Stubblefield case grated more than ever. Though she never spoke about the inseparable relationships of race, class, and gender as “intersectionality,” Ginsburg fully grasped how disadvantage was compounded for women who were poor and black.
To all but die-hard exemptionists, it was clear that Taylor marked a turning point. Yet only five years later, Ginsburg would have to repeat her arguments in a case involving the state of Missouri, where, as in Tennessee, legislators refused to heed the brethren. Duren v. Missouri (1979) would be another win. However, it was not until 1994 that the Court finally recognized that the equal protection clause fully protected the rights of both sexes not to be discriminated against in jury selection.
When the Court ruled on Taylor, Ginsburg thought she detected a hint of more rigorous scrutiny in the future. Justice White, writing for the majority, had stated that “weightier reasons” than “merely rational grounds” were necessary to justify sex-based classification. That hint boded well for her Social Security case, Weinberger v. Wiesenfeld, which she had originally intended to follow Frontiero.
Stephen Wiesenfeld, a self-employed computer consultant in Edison, New Jersey, and his wife, Paula, a high school math teacher and Ph.D. candidate, were expecting their first child. Married in 1970, they had decided to try an alternative family lifestyle. Paula would pursue a career in school administration once she received her degree, and Stephen would take on household chores and child-care responsibilities. But anticipation turned to grief when Paula died during childbirth from an embolism, leaving her distraught husband with their newborn son, Jason.
After bringing the infant home from the hospital, Stephen tried to find a suitable caregiver. When none proved satisfactory, he decided to continue with the couple’s original plan. He would care for the baby with a little help from relatives, though at some financial sacrifice. Because Paula had been the principal breadwinner in the family, working until the day she gave birth, Stephen applied to Social Security for survivors’ benefits for Jason as well as child-care benefits that had long been available to widows with infants. Jason was declared eligible, but no checks would be forthcoming for his stay-at-home dad. Stephen’s claim for benefits payable to a surviving spouse entrusted with the care of a child had been rejected; only women were entitled to “mothers’ benefits,” even if the father had to forgo employment in order to stay home with the child.
In November 1972, after reading a story in the New Brunswick Home News about widowed men, Stephen wrote a letter to the editor describing the inequity in his situation. “TELL THAT TO GLORIA STEINEM!” he concluded. The letter caught the eye of a Rutgers Spanish instructor, who forwarded a clipping to Ginsburg.
Here was her perfect follow-up to Frontiero, a case that brilliantly illustrated how gender discrimination against either sex ultimately harmed men as well as women. Stephen Wiesenfeld was being penalized in a way that a woman who had just lost her husband and principal wage earner would not be—simply because of the old male breadwinner/female family caretaker model of marriage. Likewise, Paula was not being treated as a full-fledged wage earner entitled to benefits for her family. That women and men should be able to function as both full labor force participants and as fully involved parents was basic both to Ginsburg’s own family life and to her feminism. “It’s a great case,” she replied, “and we will certainly take it if Mr. Wiesenfeld agrees.”
Stephen consented. Ginsburg, assigning the case to students in the Equal Rights Advocacy Project, had reassured her client that she would “get to work” on the plea “as soon as I get over my first argument in the Supreme Court (Frontiero) scheduled to be heard on January 17th.” Never one to rely solely on judicial remedies, she also wrote to the Michigan congresswoman Martha Griffiths, a member of the Women’s Rights Project board of advisers, urging her to introduce amendments to Social Security laws that would equalize benefits. Because the ACLU would be challenging federal law, Ginsburg arranged with Jane Lifset, a former Rutgers student and a practicing attorney in New Jersey, to act as co-counsel for the necessary filing in the federal district court of New Jersey. The plaintiff’s claim was that the law violated the due process clause of the Fifth Amendment. Ginsburg then asked two of her students to draft a memo in support of a motion for summary judgment, which she would pass along to Lifset for comments. By mid-February 1973, the complaint was ready to be filed.
Eager to call attention to the case, Ginsburg dashed off a letter to the New York Times reporter Lesley Oelsner, who had written a lengthy story on Ginsburg’s appointment to the Columbia Law School faculty. In a “thank you” note to Oelsner for her story, Ginsburg had promised to send information on future Women’s Rights Project cases that might provide good copy. She now enclosed a draft of the Wiesenfeld complaint, explaining that the legal point was “significant” and that the facts of the case made it “particularly appealing.” “Do you think you can arrange to have the Times do a feature story on the case to appear the day after the complaint is filed?” Ginsburg asked. “I can give you twenty-four hours notice of the filing date.”
In mid-March, she learned that the federal district court in New Jersey would hear the case and that it had been assigned to Judge Clarkson S. Fisher, who was tied up in a protracted Vietnam draft resister’s case in Camden. But good news came with bad. The three judges on the district court, she learned, were “very conservative.” Moreover, attorneys for the government would almost certainly argue that the statute passed the “rational” relationship test. A “valid public purpose” was served, they would likely contend, inasmuch as it compensated for past employment discrimination against women. Widows were typically underemployed relative to men or, if employed, earned less. Therefore, they needed additional protection for themselves and their children. In addition, they would surely point out the financial cost to taxpayers of a decision in Wiesenfeld’s favor.
Ginsburg honed her counterargument carefully. First, she would point out that the law reflected precisely the kind of gender stereotyping that the Court had already rejected in Frontiero. Second, it constituted discrimination for which there was no governmental justification, compelling or otherwise. Third, it violated a wage-earning woman’s right to equal protection. And last though by no means least, it deprived Jason Wiesenfeld of the care of his only parent. The loss of a mother was no small matter for Ginsburg, who was fast forming an enduring friendship with Stephen and Jason.
Months went by without a hearing date. During the wait, she had celebrated Frontiero, worked on Stubblefield and Healy, reworked the Wiesenfeld brief, and reassured Stephen—and herself. There were so many inequities for women under Social Security, most of which were not susceptible to judicial attack. She simply had to win the first of the few that might be amenable to legal correction. Finally, in June 1973, a hearing date was set. “Hallelujah!” she exulted. She and Stephen arranged to meet on the train en route to Trenton.
Meeting his attorney in person for the first time, Wiesenfeld described her as “small, frail, and absolutely sure of herself.” She had reassured him no matter which side lost, the case would be appealed. Yet upon completing the oral argument, Ginsburg was a bit less optimistic about the outcome than she appeared to her client. Judge Fisher and his associates seemed troubled, among other things, as to why a man holding three university degrees would choose to stay at home and care for his son. Because opposing counsel had emphasized the financial cost that equalization would entail, the judges also made clear their misgivings about the hefty price tag.
Seeking to diminish their concerns, Ginsburg had explained that the toll on the Treasury would not add up to anything like the $20 million or more annually that the government had estimated. That inflated figure was based on the assumption that every eligible widower would elect to provide child care. Most widowers would choose to work rather than babysit, although what most men would do was not at issue. This case, she repeatedly insisted, involved Stephen Wiesenfeld. As for the concern that the judiciary would be usurping a legislative function, Congress was indeed considering corrective legislation, but nothing had yet passed. Whether such responses were convincing was an open question.
Increasingly apprehensive about the outcome, Ginsburg considered starting action on a case similar to Wiesenfeld in another district. It might be prudent because one never knew which case might come before the Court first.
Stephen also worried. In district court, the government lawyer had argued that because he now had a lucrative job as a technical consultant to an engineering firm, the case should be dismissed. If he gave up his job to save the case, what new line of work would allow him maximum time with Jason, pay enough salary to qualify for Social Security, and enable him to reinvest any profit in the company? With the Arab oil embargo looming, he would sell Fuji bicycles from a storefront near the Rutgers campus, keeping the stock in his garage. He then notified Ginsburg that he was no longer employed at his $1,500-a-month job at Cyphernetics. Ginsburg, assuming he had lost his job, asked one of her students to prepare an affidavit to the effect that he was now unemployed. Though the core issues in the case remained unchanged, Stephen’s economic circumstances now closely resembled those of widows whom the original drafters of Social Security had in mind.
Stephen never told Ginsburg what he had done, knowing she would never have asked him to change his lifestyle to save her case. The affidavit, she was later convinced, played “a key role” in securing what finally proved to be a favorable decision. “A weird opinion,” she concluded, upon reading the three-judge ruling in December 1973, “but considering the conservative composition of the bench, a minor miracle that we prevailed without a dissent.” As expected, the government appealed. “It should be much easier to preserve the victory in the Supreme Court than it was to get it in the first place,” she assured Lifset. But she would soon have cause to reconsider.
In April 1974, the Court delivered its Kahn decision. The solicitor general was the Yale legal scholar Robert Bork. An urbane, witty conservative, Bork had achieved national notoriety the previous October, when, in what came to be known as the “Saturday Night Massacre,” he fired Archibald Cox, a former solicitor general who, as special prosecutor in the Watergate scandal, had demanded that President Nixon turn over the incriminating secret tapes. Bork could be counted on to use the Court’s willingness to uphold differential treatment in Kahn to buttress the government’s claim for differential treatment in Wiesenfeld. “Mothers’ benefits,” like “widows’ tax exemptions,” government lawyers would argue, had been designed for women who, because of economic discrimination, were financially disadvantaged. Classification by sex, in this instance, was “benign.”
To counter the argument, Ginsburg knew she would have to neutralize Kahn. Her own brief would have to convince the Court that Frontiero provided the better precedent. “We will simply have to do our best to overcome bad precedent,” she told Stephen. On the positive side, she could expect another strong amicus brief from the Center for Constitutional Rights. Her students in the Equal Rights Advocacy Project, who had worked on the case since the outset, would also be helpful, especially M. E. Freeman. In addition, she had the assistance of Kathleen Peratis, who had taken over as director of the Women’s Rights Project.
Working from an eleven-page outline, she began documenting the many limitations of the key provision of the Social Security Act her client was challenging. Not only did it highlight the gender stereotypes that denigrated women’s efforts in the economic sector, denying them equal citizenship. It also discounted the parental status of the surviving spouse and father, disadvantaging children by denying them the personal care of their only parent. Furthermore, the provision encoded a model of the single-earner family that no longer corresponded to reality for millions of dual-earner couples.
Skillfully undercutting the arguments of the government, she demonstrated that the law did not relate fairly to its legislative purpose—providing for the families of deceased workers—nor did it operate to compensate women for past economic discrimination, as the government argued. On the contrary, it exacerbated past discrimination by denying working women the same level of benefits provided to their male counterparts.
Anticipating the budgetary argument, Ginsburg reminded the Court that it had previously ruled in Reed and Frontiero that fiscal economy could not be achieved by “invidious exclusions” of persons guaranteed equal protection of the laws by the Constitution. In a further effort to neutralize Kahn, she pointed out that “while special deference may be due to state policies on issues of local concern, such as state taxation and zoning, latitude for under-inclusive classification is less broad when a wholly federal and employment-related benefit is in question.”
Then she turned to the section on remedial action, making her usual argument for extension. If the Court found the gender line in the survivors’ benefit provision unconstitutional, benefits must be not taken away from widows but extended to widowers. Such action would be consistent with the larger legislative purpose—protecting families of deceased insured individuals. Yet she knew the argument was problematic.
Only rarely had the Court ever extended the scope of a law it found unconstitutional, so there were few precedents. Further, such action could be seen as legislating on the part of the judiciary. A further complication was the money involved. With a little help from Gerry Gunther, she had developed a viable argument for extension, which she had used in Moritz and Frontiero. But no funds were involved in Moritz inasmuch as the IRS took the initiative in changing the tax code. In Frontiero, a restrictive quota severely limited the number of women in the military. Hence those with dependents were so few that providing them the same benefits as military wives could easily be accomplished within the Pentagon budget. Wiesenfeld, by contrast, would require extending benefits to widowed fathers. That could cost more money than Congress had authorized, thus making the Court hesitant to follow through.
Gambling, Ginsburg opted for extension. Defense of a male plaintiff could not be allowed to jeopardize, even briefly, benefits desperately needed by poor women.
On a cold January day in 1975, Ginsburg left her Washington hotel for the Court. Upon leaving, she passed a woman walking her dog. Ruth immediately recognized the great opera star Maria Callas, whose vocal and dramatic skills, as well as her personal life, had made the diva a familiar figure. Recalling evenings at the Met when Callas had brought down the house with her dazzling arias in Tosca and her more recent concert at Carnegie Hall, Ginsburg took the sighting as a good omen.
Now considered a “repeat player” at the Court, she entered with Wiesenfeld, who watched as she sat down at counsel’s table. In this “awesome” setting where everyone stood as the justices entered and took their seats, “she seemed so small,” he recalled. M. E. Freeman, who sat at counsel’s table with her mentor, found her attention fixed on the brethren. Justice Douglas, felled by a stroke, was absent. Wendy Webster Williams, who had slipped over to the Court from George Washington University Law School, focused on Ginsburg’s performance. “As soon as Ruth uttered her first sentence about Stephen Wiesenfeld, the widowed father being denied benefits, Jason Wiesenfeld being denied the care of his only parent, and Paula Wiesenfeld being denied the protection afforded a male wage earner, I knew she had it.”
But before Williams’s hunch was confirmed, Ginsburg had to undercut two points made by the government’s attorney, Keith Jones. First, that Social Security was insurance, not compensation for work, and that Congress, therefore, was not obliged to provide female wage workers the same benefits as those available to males. Second, that the restriction to “widows only” was done in order to compensate women for their inferior position in the marketplace.
Laying out the case with her customary precision and authority, Ginsburg not only rebutted the government’s position but made a powerful argument of her own. As in Frontiero, she remained uninterrupted. Finally, she was asked how long benefits for children had to be paid. She confessed that she did not know why the age limit had been set at eighteen, whereupon a brief discussion ensued about the age at which children could live on their own. The question, Ruth assumed, was stimulated by another case under consideration, Stanton v. Stanton, in which the issue was the constitutionality of a Utah law requiring parents to support a daughter only until the age of eighteen but a son until twenty-one.
Eager to cut short any diversion from her list of key points, Ginsburg used much of her remaining time to remind the Court that there was an income limitation on child-care benefits. For any earnings of the parent beyond $2,400 per year, $1 of benefit is removed for every $2 earned. Moreover, she explained, the parent receiving the benefit must be performing the child-care function. Wrapping up on schedule, she rushed out of the Court in order to get back to New York for a two o’clock class.
Having exchanged the counsel’s bench for a lectern in a matter of hours, Ginsburg answered a few questions and then went right into her lecture. Two of her students marveled at the sense of duty that propelled her to return so quickly. No other professor on the law faculty, they insisted, would have argued before the Supreme Court in the morning and rushed back to Columbia for afternoon classes, passing up an opportunity to network in Washington over lunch. But family dinner had priority.
When the justices met in conference, they were split. Burger, Rehnquist, and most likely Blackmun were prepared to reject Ginsburg’s argument. Brennan, who had been assigned the majority opinion, had already put his first female clerk, Marsha Berzon, on the case. Picking up on a cue that Ginsburg had inserted in the brief, Berzon researched the history of the statute. To Brennan’s delight, she learned that Congress had intended the law to provide for children, not widows. Writing what became the key section of the opinion, Berzon notes that it lent a “new perspective” to the justices’ considerations. Brennan could now get all nine votes.
Stephen Wiesenfeld, seen riding with his son, Jason, in New Brunswick, New Jersey, 1975, gave up a well-paying job and sold bicycles from a stock kept in his garage. His changed economic status made it easier for Ginsburg to achieve the difficult legal victories that extended Social Security survivors’ benefits to widowers.
When Ginsburg read the telegram on March 19 informing her of the unanimous decision, her eyes filled with tears of joy. The next day The New York Times carried a front-page story and photograph of a smiling Stephen Wiesenfeld holding three-year-old Jason, who had the telephone receiver at his ear. The headline proclaimed, “Justices Back Widowers’ Equal Rights.” And indeed, they had.
Writing for the Court, Brennan declared that the Constitution “forbids the gender-based differentiation that results in the efforts of female workers required to pay social security taxes producing less protection for their families than is produced by the efforts of men.” The notion that men are more likely than women to be primary wage earners is not without empirical support, he noted. But the Court emphatically rejected the government’s Kahn-based argument that the gender distinction in Social Security law was intended to compensate widows for the disadvantages women experienced in the labor market. Rather, Berzon’s extensive legislative research revealed that Congress’s original intention was to allow mothers to stay home with their children. Limiting protection to children with a surviving mother rather than a surviving father, the opinion continued, served no valid legislative purpose at the time. Now, however, the provision was archaic in the light of women’s contemporary labor-market participation and overbroad in its assumption that men cannot provide parental care.
Critical, too, was the fact that the Court had opted for extension. That it did so meant that the justices were “legislating a bit,” Ginsburg admitted, but only tentatively. Ultimate authority to recast or scrap the law in question still remained with Congress. Privately, she would come to regard her success in persuading the Court on extension in Frontiero, and especially Wiesenfeld, along with four future benefits cases, among her more important accomplishments. Those cases “made the law” on extension versus invalidation, she noted with pride.
Although there was no reference to strict scrutiny in the decision, the unanimity of the Court was clearly a sign of progress. In effect, the Wiesenfeld judgment substituted the functional description “sole surviving parent” for the gender classification “widowed mother” employed in the statute. She also noted with pleasure the Court’s focus on legislative purpose—that is, that children deprived of one parent should have the personal attention of the other. The rigor with which the justices had examined legislative intent provided some assurance that future cases involving a “benign” gender classification would not get by without close inspection of the actual purpose of the legislation. The succession of cases—Frontiero, Taylor, Wiesenfeld, and ultimately Stanton—suggested that the justices were now prepared to reject legislative line drawing based on outmoded gender-role stereotypes, particularly in relation to the workplace. The equality train that had seemed derailed by Kahn, she concluded, was now definitely “back on track.”
Yet there were miles to go. The Court still had not specified where it placed gender discrimination on the equal protection spectrum. In fact, Blackmun, in his Stanton opinion overturning sex-based age differentials in the context of child support, concluded that under any test—“compelling state interest, or rational basis, or something in between”—Utah’s distinction between males and females was invalid. But if strict scrutiny were not an option for a majority, could they agree on a test that was “something in between” to which they would adhere? A question for another term—now it was time to celebrate.
The Ginsburgs held a victory party at their New York apartment, leaving some ACLU staffers confounded by the fashionable address and the sight of hired staff passing out hors d’oeuvres and drinks. The hostess, however, was less concerned with the reaction of her colleagues than with her guests of honor—Jason and Stephen Wiesenfeld. James and his mother had previously gone shopping to buy some of James’s favorite childhood books for Jason. Neither mother nor son could have anticipated that their three-year-old guest would one day ask a future Supreme Court justice to perform his wedding ceremony, as, many years later, would Stephen.