They Fought the Law: Fred Strebeigh's Equal
A colleague of mine recently argued an important civil rights case before the Supreme Court. In the hectic days before she left for Washington, as she reread every relevant decision and practiced clearing her throat, her attention was diverted by a niggling question: what would she wear to the oral argument? A fellow lawyer had set her to worrying by telling the cautionary tale of a female assistant solicitor general who some years earlier had shown up to court in what then-Chief Justice Rehnquist apparently regarded as an unlovely shade of brown. Halfway through her presentation, Rehnquist sent a note to the solicitor general, saying that he never wanted to see a government attorney wearing that color to the court again.
It would be too pat to conclude from this vignette merely that brown suits are bad and black ones good, that the Supreme Court is a fusty place or that Rehnquist was a nasty old grouch. The broader point is that there is a certain audacity to a profession that deals in grand pronouncements about equality while its most exalted captain upbraids a woman for sartorial choices he would likely not condemn if made by a man. Although Rehnquist was certainly no friend to women, neither was he alone in getting hung up on fashion as "lady lawyers" fought their way to the bar over the past seventy-five years. Harry Blackmun, who wrote the court's opinion in Roe v. Wade, frequently jotted notes about the outfits worn to court by female attorneys. ("White dress, youngish, nice girl," he wrote of one in 1972.) And Felix Frankfurter, a giant of the court, turned down a young attorney named Ruth Bader Ginsburg when she applied for a clerkship with him in 1960. She had graduated near the top of her class from Columbia Law School, but her grasp of the law didn't figure in Frankfurter's decision. "I can't stand girls in pants!" he reportedly said. "Does she wear skirts?"
Ginsburg is one of the central figures of Fred Strebeigh's monumental new book, Equal, which tells the story of women's struggle for equality through the courts and their rise in the legal profession. Ginsburg, of course, did just fine without Frankfurter's clerkship; in fact, she went on to become the single most important figure in the modern women's legal movement. She was one of the country's first female law professors, co-founded the ACLU's Women's Rights Project, argued a half-dozen pathbreaking gender-equality cases in the Supreme Court (including Frontiero v. Richardson, in 1973, and Weinberger v. Wiesenfeld, in 1975) and currently serves as that court's only female justice, where she has repaid Frankfurter's favor by hiring two or three women per term for her quartet of law clerks. Remarkably, Ginsburg granted Strebeigh open access to her pre-judgeship files, a decision that turned an excellent book into an indispensable one that will be an invaluable resource for the full biographies to come.
Ginsburg's great achievement as a litigator was to intensify the court's scrutiny of laws that treated men and women differently. Courts had traditionally employed two levels of analysis when reviewing constitutional challenges to laws that distinguished between different groups of people. "Rational basis" review was deferential to legislatures and the laws they passed, whereas the searching standard of "strict scrutiny" was reserved for laws that discriminated based on race or national origin, and usually meant doom for the law being challenged. In her briefs to the court, Ginsburg cleverly described the rational basis test, which was used for gender classifications, in tough language, and the court parroted her phrases in its opinions, creating a sort of lazy man's scrutiny: rational basis with teeth, as the law professors say. The laws that Ginsburg overturned in this way were quotidian--for instance, a Social Security regulation that undervalued women's work by paying less to the surviving husband of a deceased female breadwinner than to the surviving wife of a male breadwinner. Nevertheless, the decisions made great precedents. Eventually the court settled on applying "intermediate" or "heightened" scrutiny to laws that discriminated based on gender.
Another line of equal rights cases fared less well--perhaps because the impassioned female attorneys packed shotguns when they really needed Ginsburg's sniper's rifle. Many state disability and unemployment insurance programs once excluded coverage for conditions relating to pregnancy, even denying claims for completely unrelated illnesses if the woman happened to be pregnant at the time. Challenges to these rules crashed into the brick wall of one of the most baffling and inane pieces of legal sophistry ever written: Justice Potter Stewart's conclusion, in Geduldig v. Aiello (1974), that pregnancy exclusions did not violate the Constitution because they discriminated not against women but against "pregnant persons."
This loss led Congress to pass the Pregnancy Discrimination Act of 1978, which may have been just as well because statutes, unlike court decisions interpreting the Constitution, have the added advantage of democratic legitimacy. Strebeigh might have mentioned that the Pregnancy Discrimination Act was not the only women's rights victory in Congress after a loss in the court. The National Organization for Women, in a series of aggressive Supreme Court challenges to violent antiabortion protesters, prompted Congress to pass the Freedom of Access to Clinic Entrances Act in 1994.
Even though Strebeigh tells these litigation histories extraordinarily well, it's his detailed research and knack for piecing together tales of backstage advocacy that make Equal such an outstanding book. In one tale, Strebeigh recaps the machinations of a female law clerk working for a male judge on the California Supreme Court during a sex discrimination case in 1970. After the petitioners filed a shoddy brief, the clerk, Wendy Williams, stretched the ethics rules by calling a law professor friend and persuading her to file a brief to supply additional support. The court ruled for the plaintiff, striking down the state's revocation of a liquor license for a bar that had scandalously employed female bartenders ("alewives, sprightly and ribald," Frankfurter would have called them). Another such tale features Catharine MacKinnon, whose father was a judge on the US Court of Appeals for the District of Columbia Circuit, a powerful federal appellate court. In 1975 MacKinnon was using family privileges working in the court's library on a law school paper about sexual harassment--a novel term at the time--when she was approached by the female law clerk of another judge on the court. The clerk had heard about MacKinnon's paper and asked if she could borrow it, since her own research for a pending case had uncovered no authorities on the topic. MacKinnon agreed and was later pleasantly surprised to see some of her language appear in a landmark opinion prohibiting sexual harassment under Title VII of the Civil Rights Act of 1964.
Although Strebeigh does not say so expressly, Williams's and MacKinnon's stories undercut the notion that gender discrimination, a man-made problem, was also a problem solved by men. No one can deny the tireless efforts of female advocates, but the assumption has usually been that women made their best case while men made the decisions, much as whites and not blacks had the final say over ending slavery. One pictures Ginsburg, perhaps wearing a ribbon in her hair or, as she has lately done, a kerchief at her throat, standing alone before nine male justices in the 1970s. Here are just two examples--the book contains many more--of male judges relying on female law clerks or students to help decide key cases about women's equality. This aspect of Equal in particular ought to be told widely.
If the courtroom battles were dramatic, Strebeigh's section on women in the legal profession makes for the book's most infuriating reading. One of the striking points for young readers--those of MacKinnon's generation will need no reminders--is how pervasive and flagrant gender discrimination was so late in the twentieth century. At the start of 1968 only 5 percent of American law students were women, and a prominent property law casebook published that year opined that "land, like woman, was meant to be possessed." As late as 1983, the prominent Atlanta firm King & Spalding scuppered its plans to hold a wet T-shirt contest for its female summer associates, settling instead on a bathing suit pageant. Of the winner, one male partner told a reporter, "She has the body we'd like to see more of."