Sisters-in-Law: How Justices Ruth Bader Ginsburg and Sandra Day O'Connor Went to the Supreme Court and Changed the World
When Sandra Day O’Connor and Ruth Bader Ginsburg emerged from their private worlds of practice and teaching onto the public stage in the early 1970’s, the women’s movement was actively moving to become the next legal social movement. The Civil Rights Act of 1964 which passed in the wake of the racial social movement also barred discrimination on the basis of sex, and women’s movement lawyers were starting to bring cases under it. Then, in the heady days of the 1970’s, anything seemed possible.The two rose to be leaders in the movement, at first Ginsburg directly and O’Connor by example. When a moment is ripe for legal social change, there are often many lawyers who would like to lead it. Only some ascend to positions of power, and only some who ascend lead the movement itself to success. These two did ascend and did succeed.Ginsburg was a self-conscious legal movement leader. From 1972 to 1980, she ran the pre-eminent women’s legal group, the Women’s Rights Project of the American Civil Liberties Union, and she taught courses in women’s rights at Columbia. Even after she became a federal judge in 1980, she continued to speak and write on women’s rights.During those years, Justice O’Connor advanced women’s equality in politics, although without embracing the women’s movement formally as Ginsburg had. After O’Connor was selected for the Supreme Court in 1981, she became the most famous symbol of a lived feminist existence on the planet. And she was the owner of a precious vote on every Supreme Court decision on women’s rights. In 1993, Ginsburg joined her. In the years following O’Connor’s retirement in 2006, when the conservative Court turned its back on women’s rights, Ginsburg, the eighty-something feminist, became the icon of resistance to the backlash.Neither their ascent nor their leadership was an accident. They succeeded because they had “what it takes.” Together, their differences made them stronger by giving them a wider reach. Starting at least as early as the election of Ronald Reagan in 1980, the country was increasingly divided to the core between Republican conservatism and Democratic liberalism. O’Connor, the youthful Republican campaign worker and sociable President of the Phoenix Junior League, who announced at speaking engagements in the 70s that she had “come with her bra and her wedding ring,” covered one part of the political and social spectrum. Ginsburg, the ACLU lawyer and introverted law professor, whose mild manner disguised her laser-like legal mind, brought different strengths and constituencies, including her highly connected and devoted husband, Martin Ginsburg. It’s hard to imagine Ruth Bader Ginsburg having much in common with Ronald Reagan. It’s hard to imagine Sandra Day O’Connor swapping life stories with Bill Clinton. Each one was better off for the other being there.Helpful as their superficial differences were, in their strengths they were actually a lot alike. They each possessed a firm belief that they were naturally and by virtue of their talents entitled to run the show. When pressed to admit they were inferior, they took offense.But, self-esteem is not enough to change the world. The critical moment of any social movement comes when someone who can think outside the box figures out that other people, rather than, say, nature, or even nature’s God, are the source of their oppression. O’Connor and Ginsburg each figured that out. If they had internalized the low opinion of the people around them, Justice O’Connor might have been a legal secretary, and Justice Ginsburg might have learned to cook, instead of being the heroines of the feminist movement. If the two had thought that they were the only women worthy of governing, they would have been useless to the movement. Instead, the two jurists’ clarity about their rightful place among the legal elite actually enabled them to see the injustice of women’s inequality in general. If Gibson, Dunn had no business relegating O’Connor to the job of secretary because of her sex (as they did in 1952, after she graduated from Stanford Law School), why would they be any more justified in turning down another woman?Where did this degree of self-confidence and confidence in other women come from? O’Connor’s father was an intellectual, trapped on an isolated ranch by family obligations. Domineering and opinionated, Harry Day used to spend hours talking politics with his firstborn child. During her critical early years, there simply was no society to teach her her place. After the tragic early death of an older sister, Ginsburg was the only child of a gifted woman, who had seen her brother go off to college, while she stayed home. All her first-generation immigrant dreams rested on her bookish, beautiful daughter.In addition to their unique family histories, they sprang from cultures of empowerment. O’Connor came from an open Western culture that placed a high value on volunteering. Frontier communities like the American West had no manpower to waste. This unique culture allowed women a robust public role despite their exclusion from high-level formal employment. In institutions like the Junior League and museum boards (that fell from favor after feminism opened paid jobs to women), the women in O’Connor’s world demonstrated their worth to anyone who was noticing.Ginsburg came of age in the early years of the liberal revival. At college, she was the protégé and research assistant of a legendary liberal, Robert Cushman. Her professors at Cornell, like the men who taught her at Harvard, recognized at once that her talents entitled her to claim the goods of liberalism—equality, self-fulfillment—and they advocated for her tirelessly. By the time Ginsburg got her law degree in 1959, the dam was about to break in American culture. It would be the Sixties. When the time came, both O’Connor and Ginsburg were prepared by their upbringing and culture to see the injustice of women’s inequality.Not only did O’Connor and Ginsburg recognize they and other women were being treated unjustly, they recognized that a lot of the problem, and therefore the solution, lay with the legal system. The laws of all fifty states (and the federal government) treated women and men differently. O’Connor had been inspired to study law by a desire to make a difference, any difference. Since she was very capable of recognizing her own value, laws treating women differently from men struck her as unjust immediately. Ginsburg came to law with a clear liberal legal agenda. One of the touchstones of American liberalism is that the Constitution exists to protect people against an unjust state. Liberalism suited her perfectly for her future role as a crusading lawyer. Their deep commitments to making a difference and to equality predisposed them to be useful when the movement came.They also shared a capacity to take their revenge, cold. After her new colleague Justice William Brennan insulted Justice O’Connor in an over-the-top dissent during her first year on the Court in 1981, he found her mysteriously immune to his vaunted political charms, charms he used to get the five votes he needed on the nine-Justice court. She never said anything. But he called his dissent “the worst mistake I ever made.” When, at the beginning of her activism in 1970, Ginsburg was trying to get a piece of the action in the first women’s Supreme Court case of the new era, Reed v. Reed, her contact at the ACLU, Mel Wulf, did not respond enthusiastically to her offers to help. Six years later, when he was ousted from his staff job as Legal Director in an internecine battle, Ginsburg, by then one of four powerful ACLU General Counsel, “didn’t say a word” he says, to save him.When they could not get even, they would act as if they were not mad at all. As Ginsburg often told her avid audiences, on the eve of her wedding, her mother-in-law bequeathed her a pair of earplugs and shared the secret of a good marriage: “sometimes you have to be a little deaf.” [F]or years after she became the lead litigator for women’s equality she corresponded in the friendliest tones with legendary antifeminist and University of Chicago law professor Philip Kurland. O’Connor was a visible supporter of the women’s equal rights amendment, yet she maintained a lifelong friendship with conservative Barry Goldwater, an early and vocal opponent. After years of correspondence, when Ginsburg wanted Professor Kurland to help her daughter, then a student at the University of Chicago, she simply wrote him an adorable note describing her daughter’s merit, just as men in power have always done. When anti-abortion activists tried to keep O’Connor off the Court in 1981, Barry Goldwater, still powerful, announced that anyone who opposed her should be spanked. It pays, sometimes, to be a little deafLike all disempowered individuals, women tend to be viewed generically. When Ginsburg was appointed to the Supreme Court in 1993, the National Association of Women Judges had a party. They gave each of the two women on the Supreme Court a t-shirt. Justice O’Connor’s said, “I’m Sandra, not Ruth.” Ginsburg’s said, “I’m Ruth, Not Sandra.” Sure enough, every term for years after Ginsburg’s appointment, some hapless lawyer called them by the wrong name. But although they were similar, they were not generic. Similar and different, they formed a productive relationship. From her appointment in 1981 until right after Ginsburg joined her, O’Connor took more law clerks from Ginsburg’s D.C. Circuit chambers than any other source. Neither bosom buddies nor mean-girl competitors, the two Justices hit the sweet spot of an affectionate alliance. For anyone who aspires to lead a social movement, their relationship alone is an inspiration.