Sisters in Law

by Linda Hirshman

  Justice Scalia would have been the obvious choice for Ginsburg to turn to—the Scalias and the Ginsburgs had been friends for years. Scalia was quoted, famously, in the run-up to Ginsburg’s selection, as saying he’d pick her for his companion if consigned to a desert island. But O’Connor was “glad to have another woman on the Court.” O’Connor’s delight that her first companion was so skilled and competent was, for her, gushing. In one of her letters to Barry Goldwater that first two-woman term, O’Connor gratuitously drops into the otherwise completely social missive that “Justice Ginsburg is a very capable and knowledgeable Justice.”

  The Ginsburgs were not new to Washington, and Ginsburg was not new to judging federal questions. So she did not need the kind of heavy lifting that O’Connor got from Lewis Powell. But, when O’Connor paid the traditional call on the rookie, she told her to change the lighting in her chambers to a gentler glow. And from the beginning she did what she could to make sure Ginsburg succeeded. Ginsburg’s first assignment was not the traditional “dog” case, where the Court is unanimous and the opinion uncomplicated. Instead, Chief Justice Rehnquist handed her a contentious 6–3 decision on one of the most complex federal statutes. “Sandra,” Ginsburg asked her predecessor plaintively, “how can he do this to me?” O’Connor (who was on the other side in the decision) made her typical flat-tire response. “Just do it.” Oh, and do it before he makes the next set of assignments, she advised. O’Connor knew—and it was one of the many unwritten rules of the institution that newbies must learn somewhere—that Chief Justice Rehnquist would not give Ginsburg another assignment until she had turned in the one she had. “Typical,” Ginsburg remembered years later, of her predecessor’s no-nonsense guidance. She called O’Connor “the most helpful big sister anyone could have.” O’Connor welcomed her sister’s delivery of her first opinion with a note: “This is your first opinion for the Court, it is a fine one, I look forward to many more.”

  A JUSTICE OF HER PEERS

  Justice Ginsburg had reason to expect that she’d be writing one of those fine future opinions very soon. J.E.B. v. Alabama, a case challenging one of the few remaining instances of sex discrimination in jury service, came before the Court in her very first term.

  Ginsburg’s expectation of getting the assignment in J.E.B. was understandable. In the 1970s, she had been the architect of the legal strategy that got women equal access to jury service. On its face, the new jury case was just the latest in a long line of cases that applied the rules about racial exclusion to women. As part of the century-long battle over black jurors, prosecutors had been using their right to challenge jurors in any case for no reason at all to keep juries white. These attacks, called “peremptory challenges,” have a long tradition of being the vehicle for a “lawyer’s instinct” about who is likely to help or hurt their client. In 1985, the Court put a stop to this practice. In J.E.B., the state used its peremptory challenges to keep the jury one sex. So J.E.B. was, on its face, just a mop-up operation to establish that the rules applying to race in jury service also applied to sex.

  The state peremptorily struck the guys off the jury, because the case involved an order of paternity and child support for a baby the defendant had supposedly fathered. Predictably, the defendant struck as many women as he could, but the heavily female jury roster still produced a distaff gathering, and the all-female jury found J.E.B. to be the father and ordered child support. J.E.B. appealed, arguing that the state’s use of peremptory challenges to eliminate one gender—in this case, men—from the jury was unconstitutional.

  If it weren’t for Ginsburg and her ilk, J.E.B., defendant in a paternity case, wouldn’t have even had a problem with female jurors. Alabama didn’t let the little darlings serve until women sued in 1966 in the original feminist campaign to integrate juries. The fact that the particular discrimination was leveled against male jurors in J.E.B.’s case did not matter. Whether feminists such as Catharine MacKinnon liked it or not, discrimination against men was now well accepted as a proxy for sex discrimination generally.

  But sex is not always like race. The state asserted, and it presented some social-science research to support the claim, that the state had reason other than pure sex discrimination to strike all the guys. The state surmised that in a paternity case male jurors were a better bet for the defendant. It wasn’t their sex per se that the state cared about; men’s gender was a proxy for men being more likely to rule for the defendant. So the state knocked the men out of the jury.

  Alabama may have had a good argument, but the justices voted 6–3 at conference to forbid the use of peremptory challenges to eliminate members of either sex. Since the chief was in the dissent, after conference, the decision about who should write the opinion fell to the senior in the liberal majority, Harry Blackmun. Giving the nod to Ginsburg, the author of the law of women’s equality on juries, would have seemed the obvious move. But instead he kept it for himself.

  Blackmun’s tone deafness vis-à-vis his female colleagues was well known. Although he denied it at the time, the opening of his papers revealed that he resented Justice O’Connor from the get-go. After O’Connor was selected, he groused about her overnight fame and her energetic embrace of the Washington social scene. His clerks report that he did a wicked imitation of his female colleague’s distinctive loud, nasal diction. Blackmun had actually never thought that much of Ginsburg either; when the legendary Supreme Court litigator first appeared, he gave her a C+ on her oral argument.

  In fairness, Blackmun was not irrational to resist the love fest around O’Connor’s appointment. He anticipated that the anti-abortion Reagan administration would appoint someone to undo Roe v. Wade. O’Connor’s assertion during her confirmation process that she considered the procedure personally “abhorrent” did not reassure him. He knew his own beloved daughter would have had an abortion when confronted with an out-of-wedlock pregnancy before Roe, had the process been legal. That O’Connor adopted, whole cloth, the Reagan solicitor general’s suggested cutback on Roe in the first abortion case of her tenure, Akron v. Akron Center for Reproductive Health, confirmed his worst fears.

  It was one thing to take heat on abortion from O’Connor, an emissary from the Reagan Revolution, but how much more unjust was the same criticism coming from the lion of the women’s movement, Ruth Bader Ginsburg! As Blackmun was well aware, Ginsburg began her criticism of his opinion and methodology in Roe in 1984 in a speech shortly after the Akron decision and then expanded on the theme in 1993 with great fanfare in her Madison Lecture. Although Ginsburg clearly supported the outcome in Roe, Blackmun was unhappy with her for the criticism. When she came on the Court, Ginsburg knew he was unhappy with her. In his papers he called her “pushy,” which some people took as an unpleasant coded phrase.

  Yet he actually produced a perfectly serviceable draft opinion in J.E.B. In a virtual recitation of Ginsburg’s litigation career, he suggested that sex-based peremptory challenges are just as bad as the racial kind already struck down. The cost of excluding citizens from juries is high, the sexual stereotypes hoary. Blackmun emphasized the citizen’s right to be a juror, which is the point Ginsburg was after all those years ago in her jury discrimination cases. He even included a footnote reminding the Court that it had reserved the question of whether sex discrimination is always the same as race, citing Ginsburg’s concurrence in Harris. Within a day she wrote to tell him she would join his opinion and to thank him for the shout-out in the footnote. (The court reporter Linda Greenhouse called the footnote a “bouquet” to his new colleague.)

  Ginsburg would have preferred power to the posies. She quite reasonably thought the J.E.B. opinion should have been hers. It must have been so galling, after finally crossing the bench to the other side, to still have to beg Harry Blackmun to get the opinion she wanted. But, Ginsburg is nothing if not disciplined. So, as she did with so many recalcitrant local lawyers at the ACLU all those years ago—she tried to write the thing for him. The exchanges that ensued g
ive a delicious glimpse into the mano a mano that often engages the justices behind their exquisitely civilized trappings of robes, velvet curtains, ritual handshakes, and boring collective lunches on argument day.

  In the sweetest possible way, Ginsburg wrote, she just had “a few suggestions for you to consider, take or leave.” First, in listing the authority for not shaping juries by sex, why don’t you cite Duren v. Missouri? Of course, she didn’t say anything about Duren being her signature case. She instead reminded Blackmun that one of his former clerks worked on the brief for the petitioner, Duren. “Would it not be appropriate to cite the decision that administered the coup de grâce?” she asked. “Check the cite,” Blackmun noted on his copy of the letter, as if the legendarily careful Ginsburg would miscite a case. Then, she asked, why are you citing Schlesinger v. Ballard for the proposition that laws can’t rest on archaic generalizations about gender? Schlesinger, she reminds him, actually held that women could be excluded from the military, relying on an archaic generalization about gender. So although it has good language in it, why not cite—and here she appends a laundry list of cases that actually were decided in women’s favor. Blackmun puts one of his signature exclamation points beside this suggestion, and then the number “6,” probably reflecting his displeasure that Ginsburg offered him six better authorities for his statements. With her keen sense of history, she next suggested that he refer to the fact that Alabama had to get sued before it recognized women for its juries in 1966. Finally, she corrected his description of the holding in Weinberger v. Wiesenfeld as striking down part of the Social Security Act, which the decision decidedly did not do. Instead of calling him (or his clerk) on a technical error, she wrote, “It was critical to Stephen Wiesenfeld that the Court did not ‘strike down’ the provision. Because the provision survived, shorn of the sex classification, he was able to get child-in-care benefits.”

  Ginsburg was new, and Blackmun was famously thin-skinned. Despite her best efforts, he was bound to see that she thought she would have been a vastly better choice to write the opinion in J.E.B. Blackmun’s files do not include the first draft of his letter back to Ginsburg. But it must have been a doozy, because his clerk, Michelle Alexander, suggested that he might be “a bit more diplomatic.” Why don’t you say, Alexander advised, that Ginsburg’s suggestions are primarily matters of style usually left to the author of the opinion. A week later, he wrote back to Ginsburg that he was disinclined to drop Schlesinger v. Ballard. After all, “the quotations are apt.” As to the rest, he wrote, adopting Michelle Alexander’s suggestion, such matters are usually a matter of authorial style. But, in a classic male-to-female move, Blackmun treated Ginsburg’s letter as being an emotional event. Since Ginsburg “appear[s] to be uncomfortable [emphasis added] with some details” he had “tried to accommodate” her. And so he did, adding Duren and the Alabama litigation history and correcting the description of Weinberger v. Wiesenfeld.

  Blackmun’s J.E.B. opinion is a better opinion for Ginsburg’s input, as is most written work she addresses. Her point in pressing Blackmun to include the sorry history of Alabama’s treatment of women jurors was not just academic. She constantly argued from such history that arrangements that seemed to benefit women or acknowledge their difference actually harmed them. But her resentment at not getting the assignment is palpable. By the time she got to the Supreme Court of the United States, Ginsburg’s earplugs may have worn a little thin.

  O’Connor had a different agenda in writing a separate opinion in J.E.B. She wanted to reiterate a losing argument she had been making in the race-based jury cases—that the limits on peremptory challenges should apply only to the government. O’Connor had long argued that only the prosecutor acts for the state in these cases; criminal defendants are not the state. Since the Fourteenth Amendment applies only to the state and not to private citizens, O’Connor had been contending, defendants should still be able to shape the jury any way they want to.

  Since she had consistently lost that battle, her opinion was unremarkable on this score. But the partial dissent matters, because, in the course of arguing about how seriously the Court was restricting defendants’ rights, she made a much more radical argument about sex discrimination than Blackmun made. For years O’Connor had asserted that male and female judges would come to the same conclusions. Now she appears to recognize potential differences in jurors’ decisions. The state presented actual social science on how male jurors go easier on accused rapists, she reminded the reader. As to the rest, “though there have been no similarly definitive studies regarding, for example, sexual harassment, child custody, or spousal or child abuse, one need not be a sexist to share the intuition that in certain cases a person’s gender and resulting life experience will be relevant to his or her view of the case.” (The social science on male jurors and rapists, though contested now, was in the record in J.E.B.)

  Shockingly, the prim and proper Republican came within a hair of sounding exactly like the cutting-edge feminist theorists Carol Gilligan and Catharine MacKinnon. Women are different. Because women experience and know things differently, she asserted, the Court should do only what the Constitution absolutely demands when restricting litigants from shaping a jury through the traditional peremptory challenges.

  While she used the cultural assumption of difference to argue for defendants’ use of gendered challenges, she nonetheless concluded that the state cannot be allowed to base its peremptories on sex. That would be state action. It’s not that gender makes no difference. When the state is acting, she argued, the state must affirmatively decide to ignore the differences in the interest of women’s equality! Women, different as they may be in the jury box, deserve to be citizens, and therefore jurors, despite bringing all their differences with them into the jury room. It’s radical. In his dissent in J.E.B., Justice Scalia used O’Connor’s flirtation with difference feminism as evidence of the willful blindness of the pro-equality side to the natural differences between the sexes. He lost in J.E.B., but the concession to difference feminism is lying there in the precedent, like an unexploded grenade.

  O’CONNOR’S WORLD

  O’Connor’s argument for a narrow reading of the Fourteenth Amendment in the jury selection cases was the rare example of an issue where she did not get her way. With the Court almost perfectly divided between its four conservative and four liberal justices, O’Connor was the avidly sought-after fifth vote in every close case. Historian Nancy Maveety titled her book about this period The Queen’s Court. O’Connor also had something Ginsburg might never have: since the justices vote at conference with the chief first, and then by seniority, O’Connor was the fourth vote in conference. With only Rehnquist, Blackmun (who was soon to leave), and Stevens voting before her, she had a chance to make the argument for her position before there were five votes one way or the other and before the next-closest swing voters—Souter and Kennedy—had to declare themselves. In the very formal precincts of the Supreme Court, where the justices no longer walked the halls, as Brennan had, trolling for votes in advance, getting to make your pitch at conference had become much more important. The only other place a justice could be sure her brethren heard her analysis was through carefully positioned questions at oral argument.

  By the time Justice Ginsburg voted in conference, by contrast, the die was usually cast. Ginsburg used oral argument with great skill, to be sure. (Blackmun churlishly kept track of how disproportionately Ginsburg asked questions in sexual-harassment cases.) However, when a case involving women’s proper role in society was involved, it was O’Connor who got the chance to make the argument in conference while some of the other eight were still listening. O’Connor was by no means a committed strategist for women’s rights. Her ungenerous opinions even in cases where she voted for the woman’s side reflected her consensus-seeking, fact-bound style of decision making. Nonetheless, in these early years of Ginsburg’s tenure, O’Connor was more likely to vote on the liberal side in women’s cases than in a
ny other area. Once she voted on the cases of women’s equality, the remaining justices knew there would be at least five for the position. Ginsburg had no need to strive for attention to persuade her brethren to get the votes she needed: when O’Connor spoke, as the old E. F. Hutton ad had it, people listened.

  HAND IN HAND

  And so speculation about their “special relationship” arose. The large, blond, senior justice and her small junior liberal female colleague were spotted about the courthouse, one article reported, “clasping hands.” This is not as meaningful as it sounded. Former State Senator O’Connor was renowned in Phoenix circles for her handholding. The small collection of pictures in Joan Biskupic’s biography of O’Connor includes a classic photograph of her in a typical moment, clasping the hand of a dinner guest at “Sandra Day O’Connor Day” in 1981. When her former clerk Michelle Friedland was appointed to the federal court of appeals in California, O’Connor administered the oath of office, holding tightly to Friedland’s left hand the entire time.

  Except for O’Connor’s habit of taking the hand of the person she was talking to, the first and second women on the Supreme Court did not in any overt way “hold hands.” By all accounts they did not sneak out at lunch to go shoe shopping either, although Ginsburg’s shopping excursions with others—Marty, her pal Nina Totenberg—are well documented. Their clerks did not tell tales of the phone ringing between the chambers even when critical cases about women’s rights were coming up for decision.