My Own Words
Page 16
Seventeen months after Reed, in Frontiero v. Richardson, the Court held it unconstitutional to deny female military officers a housing allowance and medical benefits covering their husbands on the same automatic basis as those family benefits were given to married male military officers. Air Force Lieutenant Sharron Frontiero was the successful challenger. Lieutenant Frontiero had this clear view: she saw the laws in question as plain denials of equal pay.
Sharron Frontiero (now Cohen) is not someone you would choose from a crowd as a potential frontrunner. Nor was Sally Reed. Sharron is, and Sally was, an everyday person, uncomfortable with publicity. But they knew they had been shortchanged, they had the courage to complain, and they had faith in the capacity of the judicial system to vindicate their complaints.
Two years after Lieutenant Frontiero’s victory, the Court declared unconstitutional an Iowa law allowing a parent to stop supporting a daughter once she reached the age of 18, but requiring parental support for a son until he turned 21. That same year, 1975, the Court decided a case dear to my heart, Weinberger v. Wiesenfeld. The case stems from a tragic event in 1972, when Paula Wiesenfeld, a New Jersey public school teacher, died in childbirth. Her husband, Stephen Wiesenfeld, sought to care for the baby personally, but was denied child-in-care Social Security benefits then available only to widowed mothers, not to widowed fathers. Stephen Wiesenfeld won a unanimous judgment in the Supreme Court.
In defense of the sex-based prescription, the government had argued that the classification was entirely rational, because widows, as a class, are more in need of financial assistance than are widowers. True in general, the Court acknowledged, but laws reflecting the situation of the average woman or the average man were no longer good enough even for government work. Many widows in the United States had not been dependent on their husbands’ earnings, the Court pointed out, and a still small but growing number of fathers like Stephen Wiesenfeld were ready, willing, and able to care personally for their children. Using sex as a convenient shorthand to indicate financial need or willingness to bring up a baby did not comply with the equal protection principle, as the Court had grown to understand that principle. (As a result of the decision, child care benefits were paid to Stephen Wiesenfeld, who has been an extraordinarily devoted parent. And what was once a widowed mother’s benefit became and remains a widowed parent’s benefit.)
Next, in 1976, the Court’s majority acknowledged that it was applying an elevated standard of review—“heightened scrutiny”—to overt gender-based classifications. The case was Craig v. Boren, in which the Court struck down an Oklahoma statute that allowed young women to purchase “near beer,” a beverage that contains only 3.2 percent alcohol, at age 18 but required young men to wait until they turned 21 to buy the weak brew. It was a silly law, which the state sought to justify on the ground that boys drive more, drink more, and commit more alcohol-related offenses than girls. One might wish the Court had chosen a less frothy case for announcing the “heightened” review standard. Still, it was a key doctrinal advance.
What caused the Court’s understanding to dawn and grow? Judges do read the newspapers and are affected, not by the weather of the day, as distinguished constitutional law professor Paul Freund once said, but by the climate of the era.
The altered conditions accounting for the different outcomes in Gwendolyn Hoyt’s case in 1961, and in the 1970s cases of Sally Reed, Sharron Frontiero, Stephen Wiesenfeld, Curtis Craig, and several others, were these. In the years from 1961 to 1971, women’s employment outside the home had expanded rapidly. That expansion was attended by a revived feminist movement, fueled in the United States, in part, by the movement of the 1960s for racial justice, but also, as elsewhere in the world, by the force of new thinking both represented and sparked by Simone de Beauvoir’s remarkable 1949 publication, The Second Sex. Changing patterns of marriage, access to safer methods of controlling birth, longer life spans, and, in significant part, inflation—all contributed to a social dynamic that yielded this new reality: in the 1970s, for the first time in the history of the United States, the “average” woman was experiencing most of her adult years in a household not dominated by child care responsibilities. (That development, a well-known Columbia University economics professor [Eli Ginzberg] said in 1977, might well prove “the single most outstanding phenomenon” of the late twentieth century.)
Congress eventually weighed in, aided by the Department of Justice and a Civil Rights Commission report initially drafted by the ACLU Women’s Rights Project working with students in a yearlong seminar I conducted at Columbia. The legislature eliminated most (but not quite all) of the “differentiations based upon sex-related criteria” on Solicitor General Griswold’s 1973 list.
In sum, the U.S. Supreme Court in the 1970s, as I see it, effectively carried on in the gender discrimination cases a dialogue with the political branches of government. The Court wrote modestly, it put forth no grand philosophy. But by propelling and reinforcing legislative and executive branch reexamination of sex-based classifications, the Court helped to ensure that laws and regulations would “catch up with a changed world.”
Notably, some of the leading cases laying the groundwork for gender equality jurisprudence in the United States were brought by male plaintiffs. Of course, the men were complaining about discrimination rooted in a certain way of thinking about women—as dependents, much like children, subservient to the male head of the household. Cases like Stephen Wiesenfeld’s helped judges—who, in those days, were almost uniformly male—to understand that overbroad gender classifications were problematic. Men, too, could be disadvantaged by sex-role stereotyping. And, as Stephen Wiesenfeld’s case illustrated, generalizations about the way women and men are may have unhappy consequences for children as well.
Congress, in the late 1970s, continued to play a key part in the dialogue. The legislature had mooted a court case challenging the exclusion of women from the U.S. military academies—West Point, Annapolis, the Air Force Academy. Congress opened the doors of those academies to women. Change in that domain remained incomplete, however, until the Supreme Court, in 1996, decided a case called United States v. Virginia. That litigation concerned the Virginia Military Institute (VMI), an all-male state college that had long served as a training ground for people who became prominent in their communities. The state offered no comparable opportunity for women. By the time the VMI case was launched, women cadets had graduated from the U.S. military academies for over a decade. The Marine Corps had elevated a career female officer to the rank of three-star general, ironically perhaps, in charge of manpower and planning. Women in service were guarding the Tomb of the Unknown Soldier, flying planes, doing so many things once off-limits to them. The Supreme Court held in United States v. Virginia that the state had a choice: it could admit women to VMI, or it could close the school.
Public understanding had advanced so that people comprehended that the VMI case was not really about the military. Nor did the Court question the value or viability of single-sex schools. Instead, VMI was about a state that invested heavily in a college designed to produce business and civic leaders, that for generations succeeded admirably in the endeavor, and that strictly limited this unparalleled opportunity to men. I regard the VMI case as the culmination of the 1970s endeavor to open doors so that women could aspire and achieve without artificial constraints.
One last story from the 1970s: the case of Captain Susan Struck, an Air Force officer serving as a nurse in Vietnam, where, in 1970, she became pregnant. She was offered this choice: have an abortion on base or leave the service. (Captain Struck’s case antedated the Supreme Court’s 1973 decision in Roe v. Wade, which held that women have a constitutionally protected right to control their own reproductive capacity. In those days, several military bases, without fanfare, made abortion available to women service members and dependents of service members.) Captain Struck, a Roman Catholic, would not have an abortion, but she undertook to use no more than her a
ccumulated leave time for the birth, and she had arranged for the baby’s adoption immediately after birth. She sued to fend off the discharge Air Force regulations required. She lost in the court of first instance and in the Court of Appeals. But she was well represented by ACLU lawyers in the state of Washington, and each month was able to secure a stay of her discharge.
The Supreme Court agreed to hear her plea. It was an ideal case to argue the sex equality dimension of laws and regulations regarding pregnancy and childbirth. (The Court’s later holding, that discrimination on the basis of pregnancy was not sex-based discrimination, might never have occurred had the Court considered and decided Susan Struck’s case after full briefing and oral argument.) Solicitor General Erwin Griswold saw loss potential for the government. He recommended that the Air Force waive Captain Struck’s discharge and abandon its policy of automatically discharging women for pregnancy. The Air Force did so, and the solicitor general thereupon moved to dismiss the case as moot.
Hoping to keep the case alive, I called Captain Struck and asked if she had been denied anything that could justify our opposition to a mootness dismissal. She was out no pay or allowance, she confirmed. “Isn’t there some benefit you wanted and couldn’t get because you are a woman?” I inquired. “Of course,” she said in our December 1972 conversation. “I’d like to become a pilot, but the Air Force doesn’t provide flight training for women.” We laughed, agreeing it was hopeless to attack that occupational exclusion then. Today, it would be hopeless, I believe, to endeavor to reserve flight training exclusively for men. That is one measure of what the 1970s litigation/legislation/public education efforts in the United States helped to achieve.
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I. Justice Ginsburg delivered these remarks at Wake Forest Law School’s Summer Program in Venice, Italy, in July 2008. We have made edits based on length and context.
Part Four
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A Judge Becomes a Justice
Introduction
WILLIAM JEFFERSON CLINTON took office in early January 1993, the first Democrat since the defeat of Jimmy Carter in 1980. Like all presidents, he hoped to appoint one or more Justices to the U.S. Supreme Court, especially as it had been decades since a Democrat had done so. When Justice Byron White announced in March that he would retire at the end of the Court’s Term in June, the new president got his wish, and the search for the right candidate began. President Carter had appointed Ruth Bader Ginsburg to the U.S. Court of Appeals for the D.C. Circuit in the waning months of his presidency; now Judge Ginsburg was on President Clinton’s list of possible candidates for the Supreme Court.
The almost three-month-long selection process was meandering and tumultuous, involving numerous “lead” candidates along the way. Among them were New York governor Mario Cuomo, Interior Secretary Bruce Babbitt, and federal judge Stephen Breyer. Even though Judge Ginsburg’s name was on the initial “lists,” she was not one of the top finalists until very late in the process. In the words of one White House official, “Her pick was only possible because of all the dominoes that had fallen before it.” 1 As Justice Ginsburg somewhat humorously and modestly put it, years later: “I was the last one left standing.” 2
The final decision wasn’t made by the president until Sunday, June 13, after a pivotal meeting at the White House between President Clinton and Judge Ginsburg. The Friday before, she was attending the D.C. Circuit Judicial Conference at the Tidewater Inn in Maryland, with plans to return to D.C. later that day and then fly to Vermont in the evening to attend a wedding. While still at the Judicial Conference, Judge Ginsburg received a call from Joel Klein, a highly regarded attorney who was working closely with the White House on the nomination process. He advised her to stand by for a later call, in which she might be asked to cancel her Vermont plans so that she would be available for a meeting with the president. On her return to D.C., she received another call from Klein, who told her, “It’s okay to go to Vermont.” The Ginsburgs proceeded to Vermont Friday night and had barely checked into their hotel room when White House Counsel Bernard Nussbaum called, asking Judge Ginsburg to return to Washington as quickly as possible to meet the president. Ruth and Marty stayed for the wedding Saturday evening and flew back to D.C. Sunday morning.
Ruth Ginsburg did not like to get up early, especially on the weekend, but she had no problem waking up early that Sunday morning to catch the first plane back to D.C. It was a beautiful, sunny day when the Ginsburgs arrived back at their home in Watergate South to prepare for the arrival of the White House vetting team and for Judge Ginsburg’s meeting with President Clinton at the White House.
Nussbaum and the vetting team arrived and prepared to start work. But first, Marty, an excellent chef, made lunch for them. He recalled serving “a very well-known uncomplicated Tuscan dish of cannellini beans, canned tuna fish, lemon juice, and I make it a little bit differently, but for the better. Fortunately there were scallions in the house and that’s all you need, scallions and parsley with that and a few cans, and everyone is amazed.” 3
If the vetters were amazed at the food, they were also quite impressed by how easy the Ginsburgs made the vetting process. “I have vetted a hundred judges,” then–Associate White House Counsel Ron Klain told us, “and I never met anyone who was as well prepared as Ruth and Marty. Marty had everything, I mean everything, like, ‘Oh, would you like to see Ruth’s tax returns back to the year 1946? Here is a list of every person who ever worked in her household and her domestic help, their Social Security numbers, their immigration papers.’ If I ever want to get on the Supreme Court, I need to marry someone like Marty.” 4 (The Ginsburgs were amused that everyone assumed tax lawyer Marty was responsible for the thorough and organized records, when in fact it had been Ruth who maintained all of the household financial records over the years.)
While Marty and the vetting team pored over the Ginsburgs’ meticulously kept records and dined on Marty’s gourmet fare, Bernie Nussbaum and Judge Ginsburg headed to the White House to meet the president. To avoid press attention, the president had instructed Nussbaum to avoid the Oval Office and instead usher Judge Ginsburg into the White House through the back door and up into the family’s private quarters on the second floor to await his arrival. “We had all this leaking about the process and the candidates,” President Clinton told us. “I said, surely to goodness we can get her in on Sunday through the back door without anybody knowing about it. . . . [M]ost of the people that I believe are doing all this leaking, they don’t work here on Sunday, just bring her to the back door.” (More than two decades later, President Clinton remembered how Judge Ginsburg reacted to her “cloak and dagger” entrance to the White House. “It tickled her that I had to smuggle her into the White House. She liked that, and I liked the fact that she had a sense of humor. I think it’s very hard to endure over the long run and have a positive impact on the Court that goes beyond the writing of your opinions if you don’t have a sense of humor.”) 5
Judge Ginsburg, who had returned from Vermont wearing slacks and a top and jacket, wanted to change into more formal clothes before heading to the White House, but Nussbaum had assured her there was no need. The president, he said, was coming straight from the golf course and would be dressed casually. But when the president walked in, he was dressed up in a suit and tie. Instead of playing golf, he had decided to go to church that morning and had donned his “Sunday best.” Ginsburg leaned over and whispered, “Bernie, what have you done to me?!” Bernie replied, “I don’t know what happened, some change in plans. But don’t worry, you look very nice.” 6
The president and the judge met for over an hour. Ginsburg felt there was an immediate and strong rapport: “Bill Clinton, whatever his problems were, talks comfortably to women.” 7 They talked about gender equality and church/state cases. The judge was impressed with the president’s knowledge of Supreme Court cases and his grasp of constitutional doctrine. She talked with him about her childhood and her work
as a women’s rights litigator. They discussed the 1957 integration of Little Rock Central High School and how the nine black students enrolled in the school were prevented from entering until President Eisenhower called up the National Guard to escort them in.
The judge told the president how moved she had been when she visited Central High in 1990 while in Little Rock to give a talk at the University of Arkansas Law School. She reminded the president that they had in fact met on that very occasion. Then-Governor Clinton and his wife Hillary Rodham Clinton, then head of the American Bar Association Commission on Women, arrived late for Judge Ginsburg’s talk, and the three chatted briefly afterward. (Justice Ginsburg later recounted to us that she had called Marty that evening. When she told him that the governor and his wife had come to hear her speak, Marty, ever the comedian, replied: “Well, what else is there to do at night in Little Rock?)” 8
Ruth Ginsburg left the White House feeling good about her meeting with Bill Clinton. “I really liked him,” she told herself, “and I think he liked me.” 9 President Clinton did like Judge Ginsburg: As President Clinton reflected during our interview with him, “We had a wonderful visit and it sort of sealed the deal for me. . . . I felt strongly enough that I trusted myself, the way I felt about her, I wanted to go forward.” “Every judge,” he told us, “needs to have both the intellectual capacity to deal with the incredible variety and complexity of the issues and an instinctive and immediate understanding of the human implications of the decisions being made. And I just talked to her about her life and her experience, and her family and her work and her judging and that’s really what I wanted to know—you know, that it wasn’t just stuff that she had written, it was way more than just an intellectual concern of hers. She got the actual human impact of these decisions.” 10