Gifts from the Goddess of Jurisprudence

Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World

By Linda Hirshman
New York: HarperCollins, 2015, 390pp., $28.99, hardcover
Notorious RBG: The Life and Times of Ruth Bader Ginsburg
By Irin Carmon and Shana Knizhnik
New York: HarperCollins, 2015, 227 pp., $19.99, hardcover

Reviewed by Ruthann Robson

The United States Supreme Court has been at the center of social and legal change: declaring that abortion restrictions, same-sex marriage prohibitions, racial segregation, and sex and other types of discrimination are unconstitutional. The nine justices of the court are arguably more powerful than any individual president. Once confirmed, they may occupy their seats for the rest of their lives, with no worries about re-election, term limits, or age limits. While the presidency has thus far been an exclusively male province, the Supreme Court has not. Of the 112 justices to sit on the court since 1790, four have been women.

Linda Hirshman’s Sisters in Law compares and contrasts the first two women to serve on the court, Sandra Day O’Connor, appointed by President Ronald Reagan in 1981, and Ruth Bader Ginsburg, appointed more than a decade later, in 1993, by President Bill Clinton. Notorious RBG, as its title suggests, focuses on Ginsburg, who turned 83 in March and who remains on the bench. She is now joined by two other women, Sonia Sotomayor and Elena Kagan, each appointed by President Barack Obama.

Both Sisters in Law and Notorious RBG are stellar biographies. Both illuminate the lives as well as the political and social contexts of their subjects. Both navigate the difficult task of writing accessibly for readers unfamiliar with legal feminism while also captivating readers well versed in it.

Of the two books, Sisters in Law, despite its rather unusual dual-biography structure, is more traditional: it is primarily text, illustrated with a few photographs. And what terrific text. Hirshman’s descriptions of Supreme Court litigation and decisions make them come alive without sacrificing incisive analysis. The juxtaposition of O’Connor and Ginsburg rarely feels artificial, although Hirshman makes it clear that these very different women were forced together and have had very different fates. While O’Connor no longer serves on the court, Ginsburg has become a celebrity. Such trendiness can be difficult to resist, and Hirshman’s phrasings sometimes jar, as when she describes the text of a dissenting opinion by O’Connor as having a “Girlz Rule string of citations.”

The collage book Notorious RBG is a product of Ginsburg’s popularity: it had its genesis in the Tumblr site, notoriousrbg.tumblr.com, created by Shana Knizhnik, who crowned Ginsburg with her rap-star moniker (a play on the name of the late rapper Notorious BIG). The book shares many aspects of a fun website: it is awash in creative images and personal text. Want to know more about Ginsburg’s attire? Her exercise routine? Want to read a copy of the note her husband left her before he died? Then this book is for you. But somewhat surprisingly, this book is also for you if you want to gain a deeper understanding of law. Spread across two pages, for example, is a handy chart of recent cases in which Ginsburg dissented. It’s similar to the case grids law students learn to construct (although the headings here read “what was at stake” rather than “issue,” and “RBG says” rather than “dissenting opinion”). Knizhnik and the journalist Irin Carmon also provide briefs and opinions by Ginsburg, which they’ve annotated with comments ranging from “#benevolentsexism” to an explanation of the legal difference between “facial” and “as applied” constitutional challenges.

If we read biographies to learn how to live our own lives, Notorious RBG satisfies that craving with a list, “How To Be Like RBG”: “Work for What You Believe In”; “But Pick Your Battles”; “And Don’t Burn Your Bridges”; “Don’t Be Afraid to Take Charge”; “Think About What You Want, Then Do The Work”; “But Then Enjoy What Makes You Happy”; “Bring Along Your Crew”; and “Have a Sense of Humor.” These may be good rules and even ones that Ginsburg embodies—although both books note that she may not have much of a sense of humor and that she tends to work too much—but of course following them will not make you into a Supreme Court Justice.

Sisters in Law presents a complex interrogation of the necessary conditions for individual success. Certainly, one component is personal character, forged early in life. O’Connor learned to “combine her confidence in her own equal value with a unique ability to absorb a high level of injustice without complaint.” Ginsburg’s ambition was rooted in her mother’s early nurturing and her death on the day before Ginsburg’s high school graduation. It also helps to be very intelligent, as both women undoubtedly are. Hirshman describes O’Connor as having a nearly photographic memory and Ginsburg as a well-known “serious brainiac.”

In addition to individual attributes, both O’Connor and Ginsburg had good timing. Both went to elite colleges (Stanford for O’Connor; Cornell for Ginsburg) and elite law schools (Stanford again for O’Connor; Harvard and Columbia for Ginsburg) after World War II, when women’s education was starting to be taken seriously. This is not to say the women were enthusiastically welcomed. Both books include the well-known anecdote about the dean of Harvard Law School who asked the recently married Ginsburg how she could justify attending law school, thus taking the place of a male student. Ginsburg reportedly answered, “It’s important for wives to understand their husband’s work.” Hirshman explains that the answer astonished even Ginsburg herself, and still does. The authors of Notorious RBG speculate that if the dean “knew [Ginsburg] was lying, he didn’t let on.” After graduation, both Ginsburg and O’Connor had trouble finding jobs: employers felt free to simply state they would not consider women. Neither obtained the high-level positions being routinely awarded to their similarly high-achieving, male counterparts.

A few decades of feminism later, when presidents decided that it would be a good idea to appoint women to the nation’s highest court, there were not that many “suitable” women available, Hirshman explains. For O’Connor, part of her attraction for President Reagan and his team (including Kenneth Starr, later infamous for his investigation of the Bill Clinton – Monica Lewinsky affair) was that she had been a Republican operative and state legislator with conservative views on tax policy and federal-state relations. Importantly, she was also a ladylike hostess. As for Ginsburg, President Clinton did not at first focus on finding a women. But when his two (male) top candidates were nixed, he turned to Ginsburg, who had been appointed by President Jimmy Carter as a federal judge on the Washington, DC, Circuit. Clinton liked the notion of nominating someone who’d been called “the Thurgood Marshall of the women’s movement.” Marshall, the first African American on the Court, who had retired in 1991, was widely seen as the architect of civil rights legal reform—and Ginsburg’s litigation profile and political beliefs were similar to his (unlike O’Connor’s). Ginsburg came to the White House to meet Clinton on a Sunday; he nominated her the next day.

Yet one can be in the right place at the right time and fail to be noticed. Hirshman, a former prominent union-side labor law attorney, reminds readers again and again of the comfortable and elite world both women occupied, due in large part to their husbands, both of whom were successful attorneys. Their husbands provided material comfort and championed them, both directly and indirectly, through their contacts, support, and mere presence. Ginsburg’s husband, Martin Ginsburg, a well-known tax attorney and professor, was the more enthusiastic of the two men. He “worked the phones” on his wife’s behalf on numerous occasions, including bringing her to the attention of those who would nominate her for judicial positions.

But it may be O’Connor’s husband who ultimately played a more important role in Supreme Court jurisprudence. O’Connor resigned from the court at the age of 75, in January 2006, to care for her Alzheimer’s-afflicted husband. Hirshman’s chapter about this, “Justice O’Connor’s Self-Inflicted Wound,” is worth the price of the book. As she describes the circumstances of O’Connor’s “abrupt decision,” her assessment of O’Connor’s character seems to shift: gone is the woman known for her “social intelligence” and “kindness.” In this chapter, she writes,

O’Connor was legendarily impatient with people who couldn’t handle the business of everyday life; she was always telling people how to drive and giving them directions to places whether they wanted them or not.

Hirshman shares the contradictory mixture of anger and pity that many progressive court-watchers, myself included, feel when we contemplate O’Connor’s retirement.

It is difficult not to blame O’Connor for some of the subsequent conservative five-to-four decisions that might have been different if she were still on the Court. Yet it is also difficult not to feel sorry for her, especially when one contemplates her sitting in the Supreme Court, not on the bench, but “in the section reserved for VIPs.” O’Connor was there in June 2013, more than seven years after her retirement, to hear the Court’s announcement in one of those close cases: Shelby County v. Holder, in which a five-Justice majority invalidated major sections of the Voting Rights Act, essentially declaring that racial discrimination is a thing of the past. The description of the event in Notorious RBG centers on Ginsburg’s powerful dissent in Shelby County, which was the catalyst for original Tumblr; it reduces the former Justice O’Connor, who once such wielded tremendous power, to “RBG’s close friend.”

One of the most revelatory incidents in Sisters in Law demonstrates what a remarkable friend O’Connor was to Ginsburg. Relying on interviews Hirshman conducted with the now-retired Justice John Paul Stevens, she discusses United States v. Virginia, decided in 1996, which involved a constitutional challenge to the ban on women students at the Virginia Military Institute (VMI). According to custom, the most senior justice in the majority selects the Justice who will author the court’s opinion. The senior justice chose O’Connor—but O’Connor demurred, saying “This should be Ruth’s.” The VMI opinion is one of Ginsburg’s most well known, and many consider it the culmination of the quest she began as a litigator to use the Fourteenth Amendment’s equal protection clause to end sex inequality.

Notorious RBG discloses another unfamiliar matter that demonstrates the depth of Ginsburg’s feminist friendship. The book includes a photo of the brief for the appellant in Reed v. Reed, filed on June 25, 1971, the first case in which the Supreme Court held that the Fourteenth Amendment prohibited sex discrimination. The brief lists five attorneys for Sally Reed, who had been barred from administering her deceased son’s estate in favor of her estranged husband because of a Idaho law that preferred male relatives. One was the Idaho attorney; another was legal director of the ACLU; and another was Ruth Bader Ginsburg. Ginsburg insisted on adding two more names: Dorothy Kenyon, formerly of the ACLU; and Pauli Murray, the co-author of the ground breaking article, “Jane Crow and the Law: Sex Discrimination and Title VII” (George Washington Law Review, 1965). Yet Murray and Kenyon had not worked on the brief. Ginsburg insisted that since she was indebted to their work, their names belonged on it—even though she was warned that listing them violated legal ethics. In 2015 she affirmed that the women were “too old” to be working then.

Any feminist working on legal issues today is indebted to the work of Ginsburg as well as to O’Connor, even if we disagree with them. While Hirshman calls both O’Connor and Ginsburg “icons” and “beacons,” she admits that it is only in retrospect that the rather conservative and uninspiring O’Connor is revealed as a “gift from the gods of jurisprudence.” As the Supreme Court is poised to deliver important decisions this term—which have the potential to allow states to seriously curtail abortion; to forbid public universities to pursue affirmative action; to weaken public employee unions; and to strengthen religious organizations’ resistance to sex equality—we will be looking to the current gifts from the goddess of feminist jurisprudence on the court: Ginsburg, Sotomayor, and Kagan. And with controversial conservative Justice Scalia now gone—he died unexpectedly February 13, 2016—perhaps the next justice will be another gift.

Ruthann Robson is professor of Law and University Distinguished Professor at City University of New York, where she teaches constitutional law. She is the author of Dressing Constitutionally: Hierarchy, Sexuality, and Democracy (2013); Sappho Goes to Law School (1998); Gay Men, Lesbians, and the Law (1996); and Lesbian (Out)Law: Survival Under the Rule of Law (1992), and the editor of the three volume set, International Library of Essays in Sexuality & Law (2011).

 

 

 

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