Sisters in Law

by Linda Hirshman

  But together they made paying attention to the distaff side a little more the norm. The Court finally added a women’s bathroom in the judges’ robing room. Within months of Ginsburg’s arrival, she and her sister in law O’Connor were off to the investiture of another female Clinton appointee, Judith Rogers. Deliciously, Rogers was replacing Clarence Thomas on the D.C. Circuit Court of Appeals—another female empowered in part by Thomas’s sexual-harassment scandal.

  Six months later they spoke together at the installation of Connecticut Supreme Court’s chief justice, Ellen Ash Peters, as the head of the National Center for State Courts. They again played their accustomed roles. Ginsburg chose to highlight the honoree’s successful management of the quintessential female problem of competing claims of work and family. When Peters became the first female professor at Yale, “silencing the Doubting Thomases,” Ginsburg noted, who thought women could not both reproduce and succeed in the workplace, “Ellen had one child as an assistant professor, one as an associate professor … and her third as a full professor.” At the end of her remarks, the opera-loving feminist asked everyone to join her in “a resounding BRAVA.”

  When O’Connor’s turn came, she said nothing about Peters’s gender-bending career. She hailed Peters as a wonderful person, wife, mother, and friend. She highlighted their common good fortune in such nice husbands and asked Peters’s husband—for the first time that evening—to stand up and be recognized. She spoke interestingly and at length about the role of the state courts in the federal system. O’Connor often said that the best thing a woman could do is be visible and do the job the men had kept to themselves. Her version of Justice Peters was completely gender neutral.

  In time, the two justices hosted a lunch at the Supreme Court for the D.C. convention of the prestigious International Women’s Forum, an invitation-only group of female movers and shakers from all over the world. In welcoming their guests to the Court, Ginsburg again invoked O’Connor’s words, this time from a speech that predated O’Connor’s tenure on any court: “As society sees what women can do, as women see what women can do, there will be more women out there doing things and we’ll all be better off for it.”

  In 1997, when Ginsburg was asked to write about her singular subject, “Constitutional Adjudication and Equal Stature,” for the Hofstra Law Review, she acknowledged that O’Connor had been on the Court but a year when in 1981 she was first called on to add a woman’s voice. Hogan v. Mississippi, O’Connor’s decision to admit men to the public Mississippi University for Women, Ginsburg noted, tipped the balance on the Court to a narrow 5–4 in favor of integration by sex.

  Feminist speaker or not, different voice or no, Sandra Day O’Connor became a regular character in Ginsburg’s narrative—Ginsburg’s “savvy, sympatique colleague and counselor.” Ginsburg never told her own story of discrimination and discouragement without invoking O’Connor’s treatment upon graduating from Stanford. She cited O’Connor as the source for her stories about the difference women make. Ginsburg usually followed her citation of Justice O’Connor on the similarity between a wise woman and a sage male jurist with a caveat: that women’s experience would—and should—cause them to see the world differently. But she emphasized that it was O’Connor who called her attention to the singularity of a woman’s voice, using the example of Helen Suzman, for years a lonely voice of opposition to apartheid in South Africa’s parliament. And, Ginsburg adds, “the only woman in the legislative chamber.” Thus Ginsburg veils her overtly feminist message with references to the more conservative sister justice. The reference to South Africa’s Suzman is unambiguously an homage to O’Connor’s courage when she, too, was the only woman in the room.

  THIS SHOULD BE RUTH’S

  Ginsburg was particularly respectful of O’Connor’s casting the fifth vote in the sex-segregated-school case just months into her tenure as the first woman. But when the Court next confronted the issue of sex-segregated public schools head-on, this time in the government’s suit to compel the Virginia Military Institute to admit women, Ginsburg was on the bench with O’Connor.

  Many other things had changed between O’Connor’s 1981 opinion ending sex segregation at the Mississippi University for Women in Hogan and 1995, when United States v. Virginia arrived at the Court. Most visibly, in 1981 Joe Hogan had to sue the university himself. Once Hogan was decided, the Civil Rights Division of the Justice Department began to take on the issue of sex discrimination in public colleges itself, deploying star attorney Judith Keith. When, in 1989, an anonymous female candidate decided her rejection from VMI was sex discrimination, Keith had just finished several years of hammering on the Massachusetts Maritime Academy to live up to its agreement to admit women on equal footing. Not surprisingly, the Justice Department concluded that Virginia’s policy of excluding women from VMI violated the Fourteenth Amendment, which guarantees to all persons the equal protection of the laws. The United States would force Virginia to comply with the Constitution.

  Not only had the Justice Department and the membership of the Supreme Court changed but so had the whole landscape of sex discrimination. When Ginsburg started her career at the ACLU, the issues usually involved formal discrimination, such as explicitly unequal pay or exclusion from jury service. But by 1989, when the case against VMI began, no law firm would have dared tell an aspiring associate that the best she could hope for was stenography. Instead, the feminist movement was increasingly confronting something squishier—cultural gender roles, or what Ginsburg always called stereotypes.

  The society did not stand still while the movement lawyers cleared the decks of formal discrimination. As the legal action shifted to cases about women’s nature, so, too, did the cultural debate. And it was a noisy debate. Carol Gilligan’s “difference” argument, that women reasoned in a morally different voice, reflecting concern for others and the maintenance of communal ties, was echoed by sociobiologists, also called evolutionary psychologists. These scholars contended that evolutionary pressures made the sexes foundationally different—male hunters, naturally unfaithful and looks-oriented; women gatherers, monogamous and wallet-oriented.

  Thus players with vastly different—indeed, opposite—political agendas converged on the issue of female difference. Feminist difference scholars were contending that public policy should respect women’s moral claims and promote community and dialogue. The last thing Gilligan said she wanted was the creation of a leadership class with only male norms of moral behavior. She was outraged at the way her work was used. Evolutionary psychologists, often espousing conservative political agendas, were arguing that efforts to change exploitative male behaviors such as sexual harassment were futile and would require totalitarian governmental measures. As the VMI case was making its way to the Court, liberals with an interest in helping poor children succeed in urban public schools began agitating for sex-segregated schools. The initiative, while powerfully controversial, gave new respectability to the cause of single-sex schooling.

  Ginsburg’s strategy always aimed at changing beliefs about women’s stereotyped roles by removing the symbol of formal state approval in the form of sexually discriminatory laws. To her credit, most of the battles for formal equality were won, so by the mid-1990s, there was little opportunity left in the law to challenge proper gender roles by challenging the laws that explicitly kept women down. But the case against the publicly funded all-male Virginia Military Institute was perfect climax to her campaign. VMI’s whole argument rested on the cultural incompatibility of the sexes. VMI defenders said the methods they used to train and shape the male students could not work if there were women present in the moral world created at VMI. When reduced to defending the very different female leadership program VMI created elsewhere in response to the litigation, its lawyers relied heavily on Gilligan’s research. Much to her dismay, they argued that women learned “in a different voice.”

  If the highest court in the land rejected that contention, the cultural consequences wou
ld be so much greater than the admission of a handful of girls to a parochial, financially strapped college. When the trial against VMI opened, there were so many reporters in the courtroom they had to sit in the jury box. The case got so much attention because the parties were fighting a culture war.

  VMI called its culture “adversative.” The institute isolated freshmen and put them through student-run ritualized hazing, imposed a heavy honor code, and stripped all the students of any privacy or refuge. There were not even doors on the toilets. Throughout the seven years of litigation, VMI’s main defense was that the adversative method was uniquely suited to men. It was the ultimate cultural redoubt.

  The famed “rat line,” the hazing ritual for the entering freshmen, was a perfect example. All year, the freshmen “rats” were reduced to serving the upperclassmen and enduring a variety of exercises—marching in painful poses, being hauled out of bed at all hours, being yelled at. In an eerie echo of classic torture practices, the victims were also assigned a protector, called a “daddy” or a “dyke,” who provided the freshman with what passed for safe haven in that system.

  On the first warm day in late winter, the rats competed to break out of the rat line. The town fire truck sprayed a hill with water to turn it into a mud field and the rats crawled on their bellies over a series of barriers, covering themselves with mud while the upperclassmen sat on them, pulled them back, and taunted them. Often, one study reported, the rats “lost their pants.” Only after they climbed the last slope were they greeted, “tenderly embraced,” “washed,” and “wrapped in blankets.” Then the young men raced to the barracks where their dykes hosed them down, “incorporating” them into the VMI body politic. They sang songs about impregnating the local women. (This was no New York public school trying to help poor black and Hispanic girls make it to graduation.)

  And now some would-be female undergraduate (the name was never made public), aided by the female lawyer at the federal Department of Justice, wanted to force them to admit women to the club.

  Although VMI, founded in 1839, no longer graduated America’s soldiers as it had before the Civil War, that conflict was central to its mythos. Its graduates formed the very heart of the Confederate Army. Early on it was tagged “the West Point of the South.” After most of the cadets enlisted following the Battle of Manassas, the school actually closed. General “Stonewall” Jackson is buried near there. So is his horse.

  When the demands of the racial civil rights movement reached Virginia after Brown, VMI responded by requiring candidates with dubious qualifications to be recommended by three alumni, a guarantee of whiteness. When the Ford Foundation threatened to pull its support from the school, VMI told it to get lost. Only the specter of the Department of Health, Education and Welfare taking its federal funds away triggered the admission of five black cadets in 1968, fourteen years after Brown.

  From the start of the case in 1989 until the Supreme Court ruled in 1996, the VMI community of alumni and friends was firmly committed to resisting the women. Although the state of Virginia ultimately resigned from defending its public university’s exclusionary policy, VMI raised and spent $14 million defending itself against the United States.

  Recognizing that they were in a culture war, VMI’s lawyers did something very smart. When they received the letter from the Justice Department that usually precedes a suit, they raced to the courthouse and filed a preemptive action against the United States. Their alertness enabled them to choose which Virginia federal court would hear the action: they filed in the district nearest to VMI, in Roanoke. They thus drew a Reagan appointee, Judge Jackson Kiser, a local lawyer who was occasionally seen golfing with VMI’s counsel. If anyone would understand the uniqueness and value of the VMI culture, it was Judge Jackson Kiser.

  Although doomed, VMI’s resistance was not completely crazy. The Court had never openly ruled that sex-segregated public education always violated the Constitution. In 1976, early in Ginsburg’s tenure at the ACLU Women’s Rights Project, Pennsylvania lawyers brought a challenge to Philadelphia’s public boys’ and girls’ high schools. The case, badly argued and on an inadequate brief, divided the Court 4–4 (Rehnquist was away and could not vote). The split left in place the lower court decision approving the separate schools. Justice O’Connor’s decision in Hogan, which disallowed the Mississippi women-only nurse’s program, did prescribe a high standard for such schools to meet to justify the sex segregation. According to Hogan, VMI had to show an “exceedingly persuasive” reason for the division. But in Hogan there was little overt difference in educational goals separating the Mississippi University for Women nursing program from nursing taught at the rest of the state schools. It was just segregated. VMI invoked the new fashion for “difference feminism,” trying to fit itself into a model of benign, separate but equal and functional education.

  For VMI’s strategy to succeed, they first had to convince the judges that women were unfit for an adversarial model of training for social leadership, and, therefore, women should be educated outside the norms of the VMI system. Then they had to argue that even if some women were okay with it, the girls’ presence would ruin it for the boys, distracting them and diluting their solidarity. The case went to trial in the district court. Using experts such as the eighty-two-year-old sociologist David Riesman and the work of Carol Gilligan, VMI made its case for the uniqueness of the VMI method, women’s unsuitability for the method, and the centrality of sex exclusion to its success.

  Judge Kiser found for VMI on all counts. VMI both promoted difference, he found, in its special approach, which would be badly hurt by admitting women, and yet was not discriminatory, in that women could take the same kinds of courses at another nearby school without ruinous access to what made VMI special. Kiser’s opinion, as well as VMI’s forum-shopping strategy of seeking a sympathetic local Republican-appointed jurist, interestingly reveals how women’s equality had become less a matter of law and more a matter of deep beliefs about human nature and society.

  Even the conservative Court of Appeals for the Fourth Circuit could not gag down Kiser’s first opinion. The panel, consisting of judges appointed by Presidents Nixon, George H. W. Bush, and Carter, reversed unanimously: VMI could not simply limit its programs to men. The panel did not, however, compel VMI to integrate. Instead, they suggested that the state extend the excellent advantages of VMI to women without diluting it by establishing a separate program for them.

  VMI, in response, proposed to start a parallel program at the nearby Mary Baldwin College to offer “substantively comparable” leadership opportunities for women in a nonadversative environment. On remand, Judge Kiser agreed again. In his opinion upholding the male-only military institute, Judge Kiser likened VMI to the “beat of a drum,” while Mary Baldwin was the “melody of a fife.” On a second appeal, the court agreed that VMI had done enough. The separate program was less prestigious and less well funded and espoused a different learning philosophy, but, to satisfy the equal-protection demands of the law, the court ruled, the women’s option had only to be “substantively comparable” to the segregated one. “Substantive comparability” was a new concept for the Fourteenth Amendment and generated a powerful dissent from the Democratic appointee on the panel. The VMI case came within a single vote of getting a rehearing en banc from the full circuit court. Falling shy, however, the United States appealed to the Supreme Court.

  And so the VMI case appeared before the high court, trailing a patently groundless interpretation of equal-protection law, and built around a totally inferior program, which, in its exclusionary origins and nod to the military, even many Mary Baldwin faculty didn’t like.

  VMI’s prospects were bleak. Justice Thomas had a son at VMI and so would probably recuse himself, but the four liberals could likely count on O’Connor. And that made five. There was a lot of talk in the air about the virtues of sex-segregated education, but any reasonable defense of it would have had to prove that, unlike racial segregation, sex
-segregated education was superior to integrated education. Or that the single-sex programs were established and maintained as compensation for past wrongs, like affirmative action, rather than as a desperate last-ditch effort to save an imperiled old menonly establishment. VMI looked more like a weird leftover from another era than an experiment in catering to the morally different voices of males and females.

  Assisted, in 1995, by a sympathetic Justice Department led by Solicitor General Drew Days, the government asked the Court, once and for all, to make the standard for sex discrimination the same as for race. The Court should apply strict scrutiny to arrangements like VMI’s. This would have required it to show that the VMI experience was a compelling state interest that only a segregated institution could achieve, a test almost no arrangement has ever passed. A raft of women’s groups filed friend of the court briefs to the same effect.

  The line to get into the oral argument wound around the block. It soon became clear that VMI was going to go down. It was just too raw: Virginia had a long history of excluding women from its most prestigious public universities, and the actual military academies such as West Point had filed numerous amicus briefs telling the Court that coeducational schools can train people to be soldiers. At oral argument, Ginsburg skated very close to calling out the sexist assumptions embedded in the VMI method, asking VMI’s lawyer whether training for future leadership didn’t include the ability to coexist with—indeed, take orders from—female citizens or citizen-soldiers.

  Representing VMI, Theodore Olson, the legendary Supreme Court advocate who was later the victor in Bush v. Gore, was forced to rely on the assertion that the VMI method worked really well for the students it attracted. So what, asked Justice Breyer, cutting to the chase immediately. Why is helping males who need an all-male adversative system important to the public? Breyer was invoking the standard for discriminatory plans: a compelling public interest. What if there were a segment of the public that did better in racially exclusionary schools? That would not mean the Court should reverse Brown! Didn’t Virginia need to show why we, the people, benefited so heavily from satisfying a few male individuals’ needs that the benefit outweighed our suspicion of segregated schools, Breyer asked? Why is the adversative method so important to the society at large?