- By Nina Totenberg
- Category: News & Opinion
- September 01, 2015
Listen to the Story (00:07:03)
The title tells all: Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World. Author Linda Hirshman's joint biography of the first and second woman to serve on the nation's highest court is a gossipy, funny, sometimes infuriating and moving tale of two women so similar and yet so different.
Sandra Day O'Connor, raised on a western ranch and a life-long Republican who cut her political teeth as majority leader of the Arizona Senate, was named to the Supreme Court by President Reagan in 1981.
Twelve years later, President Clinton put Ruth Bader Ginsburg on the Supreme Court. Born and bred in Brooklyn, daughter of a Russian immigrant, Ginsburg was a professor, a litigator and the architect of the legal battle for women's rights. But as different as their backgrounds were, and even their approaches to judging, when it came to women's rights, they were allies.
Hirshman opens her book on June 26, 1996. Justice Ginsburg announces the opinion for the court declaring that the Virginia Military Institute, an all-male institution since before the Civil War, must admit qualified women. Taking her eyes off the text she is reading, she looks down the bench at her female colleague, as she quotes from O'Connor's narrower opinion 14 years earlier on the subject of sex-segregated public universities.
"As this court said some 14 years ago," Ginsburg said as the women locked eyes, "state actors may not close entrance gates based on fixed notions concerning the roles and abilities of males and females."
As it happens, the VMI case, the jewel in the crown of Ginsburg majority opinions, written less than three years into her tenure, would not have been hers to write, but for O'Connor. As is the custom, the senior justice in the majority had assigned O'Connor to write the opinion. But in a moment of great generosity, O'Connor demurred, saying, "This should be Ruth's."
As Hirshman puts it, "every woman in American was in that courtroom on that June day" when the VMI case was announced.
"Whether you were a Supreme Court lawyer or a stay-at-home mom, pro-choice or pro-life, single or married," Hirshman writes, "on that day, these women changed your life. And so of course changed the lives of men as well."
O'Connor and Ginsburg had traversed quite a journey before coming to the court. They began their careers at a time when women could be denied jobs, credit, even a place on a jury. But they always had an amazing self-confidence, believing that they could be lawyers and leaders.
How did they get that self confidence? Hirshman tells two stories.
The first is O'Connor at age 15, driving in a truck across her parent's enormous ranch to deliver lunch to the ranch hands. Miles away from anyone, and in the blazing Arizona heat, she gets a flat tire and changes it by jumping on the lug wrench until it finally loosens the lug nuts. But when she gets to the round-up, her father is angry, telling her, "You're late."
Her excuse — "I had a flat tire and I had to change it" — holds no water. "You should've started earlier," he grumps.
From this, says Hirshman, "she took the lesson that she had to just suck it up and take whatever abuse the world handed out without complaining. It was very good training for being the first woman on the Supreme Court of the United States."
Indeed, writes Hirshman, she was the "perfect first," able to get along in an all-male institution without causing problems.
Ginsburg, one of nine women in a Harvard Law School class of nearly 600, found herself being told by the dean at a dinner that she was "taking the place of a man." To her lifelong astonishment, she would reply that "It is important for a wife to understand her husband's work."
Decades later, though, when she was nominated to the Supreme Court, one of her law school classmates regaled his Rotary Club pals, telling them she was known in law school by a particularly unattractive nickname. "When Ginsburg heard that this man had reported that her nickname at Harvard was 'bitch,'" says Hirshman, "Ginsburg looked up and said, 'better bitch than mouse.'"
So profound and accepted was sex discrimination back then that getting a job was monumentally hard for both women, despite the fact that both had graduated at the top of their classes. O'Connor got a job by offering to work for free at the beginning and Ginsburg, though recommended for a Supreme Court clerkship, was rejected explicitly because of her gender and went into academia, hiding her pregnancy to get tenure.
In short, whatever they had to do, they did. And almost everywhere they looked in their profession, and certainly on the bench, they were alone.
Ronald Reagan, though, campaigned on a pledge of appointing a woman to the Supreme Court, and though his aides tried to talk him out of it, he persisted until he laid eyes on state appellate judge Sandra Day O'Connor, a fellow American westerner, for whom he felt an immediate affinity.
The path for Ginsburg was more difficult. President Clinton's initial choices — all male — either said no or had problems. Clinton wasn't interested in Ginsburg, he told his counsel Bernard Nussbaum. He'd heard was she was a "cold fish." But he agreed to meet with her. Nussbaum immediately called Ginsburg. It was a Sunday, and she was horrified.
"Oh my God, I just got back from Vermont. I'm not dressed for the White House," she said.
Nussbaum told Ginsburg not to worry, since the president would likely be returning from a golf game and would be in sports clothes too. But when Ginsburg walked into the Oval Office, the president had just returned from church and was dressed in a navy blue suit.
"And Ginsburg, according to Nussbaum said, 'Bernie what did you do to me?'" reports Hirshman.
As it turned out, though, Clinton was totally smitten with Ginsburg and told Nussbaum after she left that he had made up his mind, but wanted to watch the Arkansas basketball game and would call Ginsburg later. Nussbaum, however, took it upon himself to call her.
Hirshman says that he told her, "'Ruth, I can't tell you anything except ... don't go to bed early.' And Nussbaum said he heard her start to cry."
Once on the court together, the two women were not friends, in the sense that they went shoe shopping together or to the movies with their spouses. But they were allies. Ginsburg had personally written the briefs and argued the cases that revolutionized the law for women. But that ended in 1980 when she became a federal appeals court judge. Months later, when O'Connor became the first female Supreme Court justice, the court seemed on the verge of rolling back some of those equality rules. But O'Connor stopped that.
"What could be more dramatic ... O'Connor picks up the baton as if they were in a relay race ... and casts the crucial fifth vote."
The relay continued for the next 12 years. O'Connor's last sex discrimination opinion before retiring declared that a girls high school athletic coach who is fired after complaining about unequal facilities for women, may sue for sex discrimination.
O'Connor reads from the opinion announcement: "Retaliating against a person because that person has complained of sex discrimination is a form of intentional sex discrimination."
The vote was 5-to-4, and the more conservative court that followed has begun to eat away at that ruling, in part because O'Connor left some holes that could be exploited later.
Hirshman sees O'Connor as less strategic and so incremental as to sometimes be incomprehensible.
"Sandra Day O'Connor did not have a clear legal philosophy," says Hirshman. "So when she makes social change, she does it one agonizing molecule at a time. And Ginsburg sees the big picture ... she may do it in a slow and orderly way, but each change is clearly a cog in a wheel that she's going to then roll towards equality."
Hirshman ends her book with a chapter calling them both "our heroines." O'Connor for being the perfect first, Ginsburg for her razor sharp intellect and far-sighted strategy, and both for solidifying a body of women's rights law that cannot easily be reversed.