Nor did Ginsburg forget her tribe. The first Jewish justice in a generation, she was immediately approached by the clerk of the Court to help out with a Jewish question. Orthodox Jewish lawyers had been sporadically objecting to having the year on their certificates of admission described as “The Year of Our Lord.” In typical Ginsburg fashion, she initiated a survey of the lower federal courts’ practice. Learning that some had altered the certificate to avoid offending lawyers who didn’t count the years from the birth of Jesus, she sent a letter to the chief, asking for a change in the practice. As she reports it, she caught some flak. “I was told by a colleague, ‘Why are you making a fuss about this? It was good enough for Brandeis, it was good enough for Cardozo and Frankfurter.’ I said, ‘Stop. It’s not good enough for Ginsburg.’” Although Ginsburg does not reveal the source of the resistance, one of her clerks thought Justice Rehnquist was less than pleased, and Justice Blackmun’s papers include his note on the discussion to the effect that “we protest too much.” Nonetheless the Court agreed to change its practice and offer people a choice in the wording of their ceremonial paper.
Unlike the tidal wave of attention that greeted the First WOTSC, coming second, Justice Ginsburg’s swearing-in was an intimate affair, with just “judicial colleagues, extended family, and closest friends” in the East Room of the White House. No phalanx of media, except the reporters drawn to the site by the awful coincidence of more scandal over the White House counsel Vince Foster’s suicide. But it was a big day anyway. As Gloria Steinem’s office wrote to Stephen Wiesenfeld, “now that Ruth Bader Ginsburg has been confirmed, we can rest assured that the Supreme Court now has a true feminist voice.”
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Ginsburg’s Feminist Voice
THE FEMINIST VOICE
As the October 1993 term opened, one of the first cases up was a sexual harassment suit, the notorious Harris v. Forklift Systems. Sexual conduct had been front and center in the culture wars since the courts began recognizing harassment at work, most notably in the 1986 Supreme Court decision in Mechelle Vinson’s case against the bank. Nothing unbalances the balance of power between the sexes like the possibility that a woman can bring a costly and embarrassing lawsuit grounded in sex.
No one wanted to advocate for people like the noxious bank manager Sidney Taylor, so the discussion took cozier forms. Judge Alex Kozinski, a conservative intellectual beacon of the Ninth Circuit Court of Appeals, worried that people would hesitate to initiate “office romance.” Without romance, the office would be a much less inviting place and who would want to work there? Harvard’s media star Alan Dershowitz thought offensive sex talk in the workplace was protected free speech under the First Amendment. The well-respected conservative legal theorist Judge Richard Posner wondered if sexual harassment wasn’t just usually a misunderstanding.
The pushback often focused on women’s capacity to take a hit. Dershowitz called complaining women “crybabies.” And that’s exactly the issue the Court had to decide when it took up the matter again in Harris. How bad does it have to get before a woman can push back against sex in the workplace?
Harris was pretty raw: the company president, Charles Hardy, had called the manager Teresa Harris “a dumb-ass woman” in a company that “needed a man,” he said. But while she was there, he asked her (and other female employees) to fish in his front pants pockets for coins, to pick up objects he threw on the ground, and to come down to the Holiday Inn to negotiate her raise. He was surprised, he said, that she was offended by this merriment and promised to stop. Instead, he interrupted her in conversation with a customer, asking her if she’d offered to “bugger him.” (The Supreme Court opinion euphemistically translates Hardy’s inquiry as did she “promise the guy some [sex] Saturday night?”) Harris quit. Then she sued.
In the seven years since the Court’s sexual-harassment decision in Vinson v. Meritor Savings Bank the lower courts had divided over how bad sexual harassment had to get before it violated the Civil Rights Act. Meritor, involving allegations of sexual extortion, rape, assault, and indecent exposure, hardly gave much guidance on how to handle lesser affronts. The law did not require the employee to have been fired or demoted before she could sue. However, some courts, like the lower courts in Harris, thought the employee had to have suffered somehow, and psychological injury was the next thing to suffering actual material damage. Other federal courts said no such injury was required. The Equal Employment Opportunity Commission had proposed guidelines rejecting the requirement of psychological injury and suggesting a looser standard still, which would require only that “the environment hampers her opportunity to succeed vis-à-vis her male peers or denies her credit for her achievements.” The lower federal courts in Tennessee read the earlier decision to require severe psychological injury, and they did not think that Hardy’s behavior was serious enough to cause Harris such harm. So they ruled against her.
At conference, everyone agreed that the lower courts should stop requiring plaintiffs to show severe psychological injury in sexual-harassment cases. Such a standard had the perverse result of rewarding the psychologically weak with a lawsuit for her suffering and penalizing the woman worker who can take the heat by requiring her to stay in the hot factory. The chief assigned O’Connor to write the opinion.
Her cautious first draft only marginally reduced the standard for proving sexual harassment, suggesting the workplace must be abusive before a victim could sue. O’Connor’s effort immediately triggered a robust critique from Harry Blackmun. Even the Court’s prior opinion, Blackmun reminded her, included redress for a “hostile” or “offensive” environment as well.
Ginsburg did not even try to negotiate the language of O’Connor’s draft. Instead she joined immediately, always welcome when the writing justice is trying to assemble a majority, even when the vote at conference was unanimous. Ginsburg was, she said, merely appending a “brief concurring statement,” just a tiny addition “on a point I wish to emphasize.” Ginsburg’s point, not remotely tiny, was that the standard for sexual harassment under the Civil Rights Act should be the same as the rule for race: Would the offending behavior make it harder for a reasonable person to do their job? At oral argument, she had leaned all over the lawyer for the obnoxious Mr. Hardy to admit this: “If it had been race-based or religion-based or national origin, would your analysis be any different?” she demanded. “It is the same statute, Title VII, what applies to race applies to gender, right?” And so in her modest addition, she asserted that the Court should apply the standard used to interpret the Civil Rights Act in racial harassment cases such as Davis v. Monsanto Chemical Co.
Under the racial standard, “it suffices to prove that a reasonable person subjected to the discriminatory conduct would find, as the plaintiff did, that the harassment so altered working conditions as to ‘ma[k]e it more difficult to do the job.’ … Title VII declares discriminatory practices based on race, gender, religion, or national origin equally unlawful.” Ginsburg’s “brief” addition, which closely tracks the EEOC’s regulations, would have made it much easier to prove harassment and also emphasized the equality agenda always in the forefront of her analysis. Harassing a female worker made her unequal to her male colleague in the amount of effort she had to expend to do the same job.
Blackmun’s clerk Sarah Cleveland thought Ginsburg had a capital idea. Her “brief” concurrence captured the inadequacy of O’Connor’s draft and focused on an equality-oriented standard. Cleveland thought Justice Blackmun should join Ginsburg’s concurring opinion. Instead he wrote to O’Connor again, suggesting using the Davis standard. But O’Connor was having none of it. “Perhaps,” she wrote in her letter to him, with copies to everyone, “the Davis test will ultimately prove to be the right one, but now is not the time for us to decide this.” And so, in the next round of drafts, she explicitly refused to chime in, opining, “We need not … specifically address the Equal Employment Opportunity Commission’s new regulations on this subject.”
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Instead O’Connor invoked what the Court had said in the bank case seven years before. “When the workplace is permeated with discriminatory intimidation, ridicule, and insult,” she held, “that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s employment and create an abusive working environment.’ … Title VII is violated.”
Since the lower courts had been having a problem figuring out what in the world the Court had meant, she tried to clarify: “Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII’s purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation. But Title VII comes into play before the harassing conduct leads to a nervous breakdown.”
Despite this explicit refusal to adopt her suggested standard, Ginsburg, who had received a copy of O’Connor’s letter to Blackmun, apparently decided to “be a little deaf.” In Ginsburg’s concurring opinion pitching the standard in the race cases—exactly what O’Connor was not ready to embrace—she asserted that since O’Connor’s majority opinion was “in harmony” with her beliefs, she would join in.
Ginsburg’s right-hand man that first year, her former D.C. Circuit clerk Hugh Baxter, calls these unfounded agreements Ginsburg’s “happy face dissents, writing all the things that were good” about the majority decision. Her motivation to find “harmony,” even in face of an explicit rejection, was partly strategic, he concluded, to save the day for another case by minimizing the harmful aspects of a loss. “Very smart,” he thought. “After all, she was a cause lawyer and knows how to build things for the future.”
DEFENSE AND OFFENSE ON THE SUPREME COURT
This exchange, from the very beginning of their twelve-year tenure together as justices, set O’Connor’s and Ginsburg’s respective roles in the cause of women’s legal equality. Sandra Day O’Connor played defense; she would not permit the courts to roll the equality ball backward. O’Connor had already manifested that commitment when, most famously in Casey, she refused to overturn Roe v. Wade. In the sexual-harassment cases, she joined all her colleagues to deny that the employee must have “a nervous breakdown” to recover. But in the abortion cases, her rulings meant that women who wanted equality had to be willing to endure every burden short of criminal penalties and spousal notice in order to get their abortions. In the sexual-harassment arena, she would have them suck it up and survive harassment on the job until things got so bad the workplace was outright hostile or abusive. Channeling her father, Harry Day, plaintiffs would have to jump on the lug wrench and get the tire changed before the courts would come in to help them.
In hindsight, these opinions look ungenerous. But O’Connor’s clerk Stephen Gilles and the ACLU’s Aryeh Neier, an astute social observer, both credit her with laser judgment about what the Court—and the society—would digest at any particular moment. Certainly Anthony Kennedy, the crucial third vote in the opinion that saved abortion rights in Casey, repeatedly demonstrated his lack of sympathy for women’s equality in the years after 1992. Had O’Connor used their brief agreement on abortion to strike down any more of the Pennsylvania law, he might well have walked. Sometimes a courageous rearguard action is exactly what an army needs.
Ruth Bader Ginsburg, who had been presented to the solons of the Senate as a charming moderate, played offense. At the oral argument in Harris one month into her first term, she officially revealed how her life work for women’s equality would infuse her judging on the Court. When Justice Stevens began a humorous colloquy with Harris’s lawyer about an employer who might say “You’re a man, what do you know” since, he admitted, Stevens’s wife often says such things to him, she cut him off. She knew that “dumb broad” talk at work was the furthest thing from harmless sexual banter.
“Some of these are hard to transpose in that way,” Ginsburg interrupted briskly. “‘You’re a woman, what do you know’ means something different than ‘you’re a man, what do you know?’” The guys in the Supreme Court might be yucking it up about how their wives henpecked them, but Justice Ginsburg knew what the question meant to a woman trying to do her job in a world in which men held all the power. Consider, she continued, things that were once considered normal. “Why, even great professors had such things as Ladies’ Day,” she reminisced. And “What about the woman who doesn’t see herself as a victim, but finds this terribly annoying.” This was new territory for the old Supreme Court. In her Madison Lecture, Sandra Day O’Connor asserted that a wise old woman judge and a wise old man judge will reach the same conclusion. Ginsburg was not so sure. When she took her seat at the Supreme Court, she brought with her memories of outperforming in spite of Ladies’ Day and the whole history of women’s efforts to break into the workplace, experiences she called “a different medley of views.” And it affected her judgment, as she thought it should.
Her concurrence in Harris was her first Supreme Court opinion. Asserting that women workers are made totally equal to male colleagues by operation of law, just as black Americans are equal to white ones, was a serious move. Although Ginsburg never got the Court to say that sex and race were equally suspect under the Fourteenth Amendment, she was trying to get the standards aligned in employment situations, under the equality provisions of the Civil Rights Act. The concurring opinion did not of course affect the outcome in a unanimous decision. She did not even deprive O’Connor of the votes of the other more liberal justices—Blackmun, Stevens, and Souter—but it laid down a marker.
Five years later, the Court moved beyond O’Connor’s cautious formulation and explicitly adopted Ginsburg’s standard as the law of the land. Ruling for the plaintiff in another harassment case, Oncale v. Sundowner, Justice Scalia invoked Ginsburg’s concurring opinion verbatim when he wrote for a unanimous Court: “‘The critical issue, Title VII’s text indicates, is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.’ Harris, supra, at 25 (Ginsburg, J., concurring).”
O’Connor’s slow-moving role in the development of sexual-harassment law also speaks to her larger role on the Court. For years during her period of dominance on the evenly divided court, commentators speculated about what Justice O’Connor was doing. Did she honestly believe the Supreme Court should decide cases like some state court, in the common-law tradition, just adding one incremental decision to the previous one? Was her hair-splitting a jurisprudence, like Scalia’s originalism or Brennan’s liberalism? She often asserted that centrism was a philosophy, although she never said what a philosophy of centrism would look like or why taking a position midway between competing substantive visions is itself a vision. Many believed that like the old legislative leader she had been, she just took the Court where the public was, regardless of what text or theory would have dictated.
The justice-as-legislator theory seems to be supported by the paper trail in Harris. Although Court watchers often scoured the archival material made available by justices who opened their papers to the public, it seems no one ever looked at the paper trail in Harris, a decision that mostly mattered to women. Yet in O’Connor’s letter to Blackmun refusing to equate sex harassment with race, there was O’Connor saying outright that she thought the racial-harassment standard—that everyone in the workplace should have an equal chance to succeed—might be the right rule, but that she would wait, nonetheless, until “the time” for the Court to express the right outcome in a decision. The only thing that happened between O’Connor’s decision to wait and the Court issuing the right opinion was that the lower courts wrestled unsuccessfully with what Harris actually required. Without comment, O’Connor joined the Oncale opinion. For reasons never expressed in opinion or in public, sometime between 1993 and 1998, O’Connor apparently decided the c
ountry was ready for the simple, equitable rule.
THE RELATIONSHIP WITH O’CONNOR WAS REALLY THE IMPORTANT ONE
Deliberately or coincidentally, the two women were more effective together than separately. Although Ginsburg pointed the way for the Court in Harris, she took great pains not to cross her predecessor. For a dozen years before she joined the Supreme Court, Ginsburg had followed O’Connor’s career on the bench. Her files contain many articles about the FWOTSC. She had raved about O’Connor’s opinion in the nursing school case, in which O’Connor ordered the Mississippi University for Women to admit men.
Hugh Baxter, back as Ginsburg’s Supreme Court clerk after his first Ginsburg clerkship, quickly learned that O’Connor was a really important relationship to her. He never saw them going out together and it was not that the newer judge expected to influence O’Connor, but Ginsburg openly respected O’Connor as a fellow pioneer. Baxter thinks Ginsburg had a sense that, after she came, life was going to be different for O’Connor, and Ginsburg wanted it to be in a good way. Ginsburg was concerned about her relationship with the chief and with other justices, but, Baxter says, “It was really clear to me that the relationship with O’Connor was the most important one.”
For her part, from 1981 on, O’Connor had taken more clerks from Ginsburg’s chambers than from any other feeder judge on all the courts below. As one of them, Joan Greco, puts it, “I interviewed with Justice O’Connor for the position because Judge Ginsburg recommended me to her. The reason there was this group of clerks that clerked for both of them is that Justice O’Connor put so much weight on Judge Ginsburg’s recommendations.” And when Ginsburg arrived at the Court that first summer, it was O’Connor who was her guide, just as Powell had been for O’Connor all those years before.
Sisters in Law Page 25
