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.