by Irin Carmon
On December 4, 1972, the same day she filed her brief to the Supreme Court in the Struck case, RBG got some bad news. Solicitor General Griswold had seen a loss coming and persuaded the air force to change its policy of automatically discharging pregnant women. The case was dismissed as moot. But RBG wasn’t ready to let go. She asked Struck, by then marooned at Minot Air Force Base in North Dakota, if there was any way to keep the case alive.
Struck dreamed of being a pilot. They had a big laugh over that one, Struck and RBG. A female pilot? It was too impossible to even ask for.
DO THE DEED, PAY THE PRICE
* * *
Six weeks after the Struck case hit a wall, the Supreme Court handed down its twin decisions in Roe and Doe. Seven justices declared that the constitutional right to privacy “is broad enough to encompass a woman’s decision whether or not to terminate her pregnancy,” and struck down all fifty states’ abortion laws. In the years that followed, RBG made no bones about her dislike of Justice Harry Blackmun’s opinion in the case. “It’s not about the woman alone,” she remarked disdainfully. “It’s the woman in consultation with her doctor. So the view you get is the tall doctor and the little woman who needs him.” Worse, the very sweep of the opinion violated RBG’s go-slow policy, which she believed was the only way to change minds.
The Supreme Court had chosen a path that led it away from where RBG had been hoping to coax the justices, and there seemed to be no turning back. If abortion was a private choice, would public insurance have to pay for it like any other medical procedure? No, said the Supreme Court seven years after Roe, when it upheld a ban on federal funding for abortion. The burden of “privacy” fell on poor women’s shoulders. What if a woman wanted to stay pregnant, like Struck? Was her right to continue working free from discrimination protected by the right to privacy? That answer came even sooner.
Employers had long refused to hire or promote women because they might get pregnant, forced them to take unpaid leave if they did get pregnant, and then refused to give women their jobs back when they were ready to return to work. Such treatment, RBG argued, made assumptions about women’s God-given roles just like the laws struck down in Reed and Frontiero did. They were “grounded on stereotypes concerning women’s physical limitations and ‘proper place’ in society,” RBG wrote in an amicus brief in one of a string of pregnancy-related cases before the Supreme Court in the seventies. “These employer policies,” RBG wrote, had nothing to do with “the ‘nature’ of women or the realities of pregnancy.”
That many of these women needed to work when pregnant and parenting didn’t seem to register. “The notion is that when the woman gets pregnant, she’s going to stay home and take care of her baby, everything’s wonderful, and she’s going to have a husband to support her,” RBG said in 1977. “Well, the kinds of plaintiffs that came up in these cases were women who had no husbands. They were the sole support of themselves and the child to come.” No matter their income, pregnant women were assumed to have taken themselves out of public life.
A note from Ms. magazine cofounder Gloria Steinem Library of Congress Manuscript Division, Courtesy of Justice Ginsburg
RBG also understood that how pregnant women were treated had to do with sex. Only a woman’s body showed proof of having sex, and only women were punished for having it. She wrote to advise the lawyer of a pregnant servicewoman who had gotten a general discharge instead of an honorable one. “Surely the less than honorable aspect is not ‘getting pregnant’ but the conduct,” RBG wrote. “As for that, it takes two, and no man (or no woman, probably) is discharged for having sexual relations.”
The Supreme Court stubbornly refused to listen to any of this. Excluding pregnancy from a disability plan wasn’t necessarily discriminating against women, the justices claimed in 1974 with Geduldig v. Aiello, because not all women are pregnant, even though all pregnant people are women. In another case, female employees sued General Electric, a company that had once made all women quit upon marrying, for excluding pregnancy coverage on its employee plan. GE’s lawyer told the Supreme Court with a straight face that, after all, women didn’t have to be pregnant. If they wanted to work, GE’s attorney suggested, women now had legal access to what he called “an in-and-out noon-hour treatment.” He meant abortion.
Astonishingly, on December 7, 1976, a majority of the Supreme Court agreed. Rehnquist wrote for the majority that pregnancy was special, because unlike race or gender itself, it was often “voluntarily undertaken and desired.” The message was clear: Once you did the deed, you had to pay the price—that is, if you were a woman. Justices William Brennan and Thurgood Marshall protested in their dissent that GE hadn’t left out any “so-called ‘voluntary’ disabilities including sport injuries, attempted suicides, venereal disease, disabilities incurred in the commission of a crime or during a fight, and elective cosmetic surgery.”
Within a day of the General Electric decision, RBG called a meeting to map out a Plan B to protect pregnant workers from discrimination. “She was very much a leader of the coalition,” says fellow feminist lawyer Judith Lichtman. “It only took two years to overturn a really stinky—can I say ‘shitty’?—decision,” she added. In October 1978, Congress passed the Pregnancy Discrimination Act, which made clear that employers would be discriminating against women if they didn’t treat pregnant workers like other temporarily disabled workers.
Some feminists wanted pregnancy to be recognized as essentially different from “sports injuries” or “elective cosmetic surgery.” But RBG was adamant that treating pregnancy as special would backfire. She hoped gender-neutral policies would make it harder for employers to single women out for discrimination. Her experience and clients had convinced her that anything that looked like a favor to women would be used against them.
WHAT ABOUT THE MEN?
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Of all of her clients, RBG was fondest of Stephen Wiesenfeld, a single father whose wife had died in childbirth. Bringing his case to the Supreme Court was a chance to show that sexism hurt everybody. While Stephen “played homemaker,” as the letter that brought him to RBG’s attention put it, his wife, Paula, had worked as a teacher and paid into Social Security. But only widows could get “mother’s benefits.” The law, RBG wrote in her brief to the Supreme Court on Wiesenfeld’s behalf, “reflects the familiar stereotype that, throughout this Nation’s history, has operated to devalue women’s efforts in the economic sector.”
A letter from Stephen Wiesenfeld to Newark Star-Ledger (November 27, 1972)Library of Congress Manuscript Division
Her argument went even further. “Just as the female insured individual’s status as breadwinner is denigrated,” RBG wrote, “so the parental status of her surviving spouse is discounted. For the sole reason that appellee is a father, not a mother, he is denied benefits that would permit him to attend personally to the care of his infant son, a child who has no other parent to provide that care.” Then she twisted the knife. Their young son, Jason Paul, RBG wrote, was another victim of a law that “includes children with dead fathers, but excludes children with dead mothers.”
RBG found out she won her case by flipping through her car radio on her way to Columbia. “My first reaction was that I have to get hold of myself or I’ll have an accident,” she told a reporter that day. “Then when I got to Columbia, I went running through the halls kissing the students who had worked with me on the case. And I am normally a very unemotional person.” She told another friend it had made her cry.
“Given the purpose of enabling the surviving parent to remain at home to care for a child, the gender-based distinction of [the law] is entirely irrational,” Brennan wrote. Rehnquist, still a women’s rights skeptic, concurred, saying he was voting to strike down the law because it harmed the baby. At least he had taken that half step. RBG wrote of the case, “Wiesenfeld is part of an evolution toward a policy of neutrality—a policy that will accommodate traditional patterns, but at the same time, one that requires r
emoval of artificial constraints so that men and women willing to explore their full potential as humans may create new traditions by their actions.”
Wiesenfeld party invitationLibrary of Congress Manuscript Division, Courtesy of Justice Ginsburg
She had perplexed and even angered some of her allies by bringing so many cases with male plaintiffs. After all, it was the Women’s Rights Project, not the men’s rights project. Much later, people would say RBG was a genius for presenting the male-dominated court with their brethren. The truth was more complicated. The choices men like Stephen Wiesenfeld made baffled, even angered the justices. Why would he want to act like a woman? In a way, it was easier to understand why a woman would want to act like a man. RBG firmly believed that for women to be equal, men had to be free. Decades later, an unnamed guest at a dinner party told the New York Times that RBG had fiercely interrupted another guest who mentioned she’d worked on behalf of “women’s liberation.” “She turned on him and said, ‘It is not women’s liberation; it is women’s and men’s liberation.’ I’d never seen her exercise such strength and vehemence.”
Nor was she interested in letting only one or two women into the old boys’ network. RBG firmly believed that more women in public life would benefit everyone, including men. “Men need to learn, and they do when women show up in their midst in numbers, not as one-at-a-time curiosities,” RBG remarked at the twenty-fifth anniversary of women at Harvard Law School in 1978. “Men need the experience of working with women who demonstrate a wide range of personality characteristics, they need to become working friends with women.”
RBG in 1977 Copyright Bettmann/Corbis/AP Images
By that point, the percentage of women in law schools had risen to 30 percent. Former Harvard dean Erwin Griswold was worried, he wrote RBG that year, even though, as he reminded her, he had “got women into the Harvard Law School as soon as I could after I became dean.” Griswold fretted that “between the women, though, and the minorities, the number of places available for white men has sharply dropped. The time may come when some consideration will be given to their plight.” RBG, whose daughter, Jane, was at that time enrolled at Harvard Law School, was unperturbed. She wrote that she was pretty sure more women and people of color could enroll “without denying to white men of merit a fair chance to compete for places.”
That day, triumphantly back at Harvard Law School, RBG looked out at young women, including her daughter, whose road had been smoother. RBG was glad of it. She would soon argue what would turn out to be her last case before the Supreme Court. Slowly but surely, she had built a set of precedents that had walked the justices in her direction, toward recognizing women as people.
In her speech, RBG allowed herself a little levity. “I understand some of the men come to HLS these days because”—here she paused—“what better place to find a suitable woman?
“All-male retreats are on the wane,” RBG continued. “I expect, before very long, the old boys will find no escape at judges’ conference tables.”
She was right.
RBG’S WOMEN’S RIGHTS CASES
“I think that men and women, shoulder to shoulder, will work together to make this a better world. Just as I don’t think that men are the superior sex, neither do I think women are. I think that it is great that we are beginning to use the talents of all of the people, in all walks of life, and that we no longer have the closed doors that we once had.”
—RBG
“I am fearful, or suspicious, of generalizations about the way women or men are. . . . They cannot guide me reliably in making decisions about particular individuals.”
—RBG
“People often ask me, ‘Well, did you always want to be a judge?’ My answer is it just wasn’t in the realm of the possible until Jimmy Carter became president and was determined to draw on the talent of all of the people, not just some of them.”
—RBG, 2010
LIKE A BRIDE. That’s how RBG felt when Bill Clinton ushered her out to the Rose Garden to introduce her as his Supreme Court nominee. Instead of the traditional white, she wore an oversize navy blazer dress and a scrunchie that nearly dwarfed her head. What only a handful of people gathered there knew was that the match almost didn’t happen. Less than twenty-four hours earlier, Clinton had been about to get on the phone and offer his first Supreme Court nomination to someone else. To yet another man.
No doubt could be read on Clinton’s face that afternoon. He introduced RBG as a hero to the women’s movement and a legal star. Above all, Clinton said, he’d chosen her for being a moderate, neither liberal nor conservative, someone whose “moral imagination has cooled the fires of her colleagues’ discord.
“Ruth Bader Ginsburg cannot be called a liberal or a conservative; she has proved herself too thoughtful for such labels,” the president said. “Having experienced discrimination,” he added, “she devoted the next twenty years of her career to fighting it and making this country a better place for our wives, our mothers, our sisters, and our daughters.” RBG would have added, “And our husbands, our fathers, our brothers, and our sons.”
Marty got his own Clinton shout-out too, as the man whom RBG had married thirty-nine years before. (“As a very young woman,” Clinton assured the crowd with a grin.) Clinton didn’t mention the other role Marty had played: doing everything in his power to make sure that the president heard about a certain former women’s rights lawyer serving as a Federal Court of Appeals judge right there in Washington. “I wasn’t important at all,” Marty later insisted, but his friend Carr Ferguson gave him away. “There were probably scores, maybe hundreds of us” who had been called to lobby on RBG’s behalf—anyone they knew in Congress or the White House, in either party. And when Marty heard that RBG’s longtime dislike of the Roe decision had earned her the vague reputation of not being trusted by feminists, he pressed into service all of her movement friends.
RBG had rarely aggressively sold herself for anything, even by proxy, but one of her clerks told her that if she just waited to be chosen, she might be twenty-fifth on the list. She had to admit to herself that she wanted this.
Fresh to the presidency, Clinton was having a rough time with any number of appointments, with a succession of political controversies and hasty withdrawals. By June 1993, it had been four months since Associate Justice Byron White announced his retirement from the Supreme Court. The names of several possible successors had leaked to the press, though not RBG’s. She was in the running, but thought it might be over when White House Counsel Bernard Nussbaum told her she could feel free to go to a weekend wedding in Vermont. Then she got a call from Nussbaum, telling her to come back to meet with the president.
Another appeals court judge, Stephen Breyer, supposedly had a tax issue, something that had sunk other appointees, and Clinton didn’t warm to him. (A year later, Clinton would apparently change his mind, nominating Breyer to the court.) Mario Cuomo, Clinton’s favorite, backed out mere minutes before the president was about to offer it to him.
Meeting at the White House on Sunday, Clinton liked RBG immediately. Clinton’s staff was relieved that Marty was a tax lawyer, assuming he would have all their affairs in order. In fact, it was RBG who handled all of their personal finances. When the Clinton vetters showed up at the Ginsburgs’ apartment in the Watergate building to hurriedly riffle through their tax records, Marty did make them lunch.
According to communications staffer George Stephanopoulos, Clinton briefly worried that RBG’s support for public funding of abortion would “push her out on the cultural left.” But he had wanted a history-making candidate, and RBG had made history. Close to midnight, Clinton called RBG and told her he would nominate her to be an associate justice, the second woman ever to sit on the Supreme Court.
“Tomorrow morning, we’ll have a little ceremony in the Rose Garden,” Clinton told her. And of course, he added, “we would like you to make some remarks.”
That shook RBG out of her euphoria. She went
to her desk. Late night had always been her most productive time, anyway. There was something else she liked about the speediness of it all. “The White House handlers had no time to edit it or suggest changes,” she said later of her first words to the nation, “and then I gave it just as I wrote it.”
With Bill Clinton in the rose gardenAP Photo/Dennis Cook
The day America met RBG, they saw a woman even many of her friends had never glimpsed. There was no sign of the solemn woman she was said to be behind the enormous, violet-tinted glasses that halved her face that afternoon, or in the ebullient grin. She thanked the women’s movement “that opened doors for people like me,” as well as “the civil rights movement of the 1960s from which the women’s movement drew inspiration.
“The announcement the President just made is significant, I believe, because it contributes to the end of the days when women, at least half the talent pool in our society, appear in high places only as one-at-a-time performers,” RBG said.
“I have a last thank-you,” she said. “It is to my mother, Celia Amster Bader, the bravest and strongest person I have known, who was taken from me much too soon,” she said. “I pray that I may be all that she would have been had she lived in an age when women could aspire and achieve and daughters are cherished as much as sons.”
Even people who knew her well had never seen her be so emotional, so unguarded. By that point, Bill Clinton was wiping a tear from his cheek. RBG had gotten to carry on her mother’s memory before the country. She had even helped a man defy gender stereotypes.
