To inaugurate Women’s History Month we could not have chosen a more appropriate subject than the work of these two pioneering female justices on the Supreme Court. —Ed.
How many women born 50 years ago or less understand how inequality made women’s lives and aspirations radically different from those of men? How many know that until the 1970s, when old laws were struck down and new laws began to change the culture, women were rarely if ever seen in corporate boardrooms, as members of houses of Congress and state legislatures, or as judges in the courts? Women were even prohibited from serving on juries (and so they never could be judged by juries of their peers), and often were not hired or promoted in order to protect jobs for men.
We’ve come a long way, baby. (I can say that, but today a man who dares to do so in public would get into trouble for infantilizing women.)
The women’s movement has many heroines. Betty Friedan, for example, got the ball rolling in 1963 with The Feminine Mystique. She singled out the imposed dependency of women as the major cause of their pervasive malaise, the reason so many middle-class women were popping antidepressants, though their husbands provided them with all the comforts they imagined a housewife could desire.
Domestic inequality grew from a culture that didn’t question the unproved assumption that women have to be protected because they are weak— essentially inferior to men. Inequality was not confined to the home. The premise that women are dependent on men was also embedded in the entire American legal system. Not until the first two women in history were appointed to the Supreme Court and gained the power to challenge those laws did the barriers that were holding women back begin to crumble.
Linda Hirshman tells their stories and chronicles the vital legal arm of the women’s movement in Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg went to the Supreme Court and Changed the World. A clever title, but one that is somewhat misleading.
Hirshman set herself a tricky task. The decision to write about two very different women who in many ways had little in common except their unprecedented appointments to the Supreme Court is sometimes difficult for Hirshman to manage. She tries to exalt both women and stresses the few parallels and similarities between them, but she (understandably) cannot suppress her admiration of and preference for Ginsburg.
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O’Connor’s achievements are undeniable, but they pale beside Ginsburg’s, and Hirshman can’t help giving herself away. She is clearly disdainful of O’Connor’s quitting her jobs on three different occasions because of domestic responsibilities. (Ginsburg, by contrast, while in her last year at law school, cared for her baby and a husband afflicted with cancer, simultaneously managing to be on the Law Review and finish at the top of her class.) Hirshman questions O’Connor’s feminist beliefs in light of her unflagging promotion of William Rehnquist’s candidacy for the Supreme Court despite his unremitting opposition to the struggle of the women’s movement for equality under the law.
Summing up O’Connor’s career on the Supreme Court, Hirshman writes,
Justice O’Connor’s decisions were mostly patchwork compromises that almost never set down any principles to guide future decision making. Her 1989 opinions in the closely divided cases about government Christmas displays, for example, drew an incomprehensible line between Christmas displays on courthouse steps (not allowed) and on a public lawn (allowed). But her “ineffable gift” for the social sweet spot and ability to take a position quite free of any singular theory steered the Court safely down a treacherous path for a long time.
Hirshman describes Ginsburg’s achievements, even before her appointment to the Supreme Court, in a different voice:
As the chief litigator for the Women’s Rights Project from 1971 to 1980, Ruth Bader Ginsburg argued in five great Supreme Court victories (and one loss). In five landmark cases over less than a decade, she largely transformed the constitutional status of women in America. Reed v. Reed, the 1971 women as administrators of estates case, might make it six, but she did not argue that one. She merely wrote the brief the Court adopted as its opinion [emphasis mine].
Yet, once O’Connor and Ginsburg were together on the Court, they did form a “productive relationship” and an “affectionate alliance,” Hirshman writes. “Together, their differences made them stronger by giving them a wider reach.”
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Though neither woman considered herself a feminist early in her career, both were spurred by patently unjust experiences that began when they were in law school. After graduating from Stanford Law in 1952, O’Connor applied to about 40 law firms and was rejected by every one because of her gender. One of her strengths was networking; she had a wide range of friends and acquaintances, so she decided to use her pull at a prestigious firm. But even there, she was told in no uncertain terms that the firm had never hired a woman and probably never would because their “clients wouldn’t stand for it.” The interviewer then asked her if she’d be interested in working as a legal secretary! Instead, O’Connor applied for a job with the government. Told the budget had no funds to pay another lawyer, she offered to work without pay. There was no office for her, so she set up a desk next to a secretary. Impossible to imagine Ginsburg doing that! According to Hirshman, the experience hardened O’Connor’s determination to get what she felt was rightly hers, but it did not steer her towards the fight for women’s rights.
