The Mother of All Grizzlies
Ruth Bader Ginsburg shows how feminism is done. Again.
Anyone who didn't already believe Justice Ruth Bader Ginsburg to be fashioned of pure steel was reminded of the fact Friday night as she delivered a speech to a group of lawyers and judges that was meant to have been delivered by her husband. Martin Ginsburg had been invited to deliver his remarks at the 10th U.S. Circuit Court of Appeals' conference in Colorado Springs, Colo., but he died in late June of metastatic cancer. As Ginsburg explained Friday evening, "He had his speech all written out." And so she read it—with a handful of interpolations—in its entirety to several hundred rapt listeners.
The speech, "How the Tenth Circuit Got My Wife Her Good Job," described the only case the Ginsburgs ever worked on together—a 1972 tax case called Moritz v. Commissioner, challenging the denial of a dependent-care deduction allowed to women, widowers, or divorced men but denied to a single man who was caring for his ailing mother. According to Martin Ginsburg, as read by his widow, in the 1960s, while he worked as a New York tax lawyer, she toiled as a law professor at Rutgers. And when he entered her adjoining study in their apartment one night—"her room was bigger"—with a report on the Moritz case and the excited suggestion that she might represent the pro se litigant on appeal, his bride apparently retorted, "I don't read tax cases." She read it, and they took the case.
The Ginsburgs not only prevailed at the 10th Circuit but also obtained—as Justice Ginsburg has detailed elsewhere—the solicitor general's Exhibit E, a "printout from the Department of Defense computer" that listed, title by title, every provision of the U.S. Code "containing differentiations based upon sex-related criteria." According to the brief filed by the solicitor general urging the U.S. Supreme Court to hear Moritz, the 10th Circuit decision "casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E." And as Martin Ginsburg noted in his speech, that computer printout proved "a gift beyond price" in his wife's future litigation career.
The Moritz case launched Ginsburg into her association with the ACLU Women's Rights Project, and Exhibit E offered a roadmap for litigation. She scored five victories in six Supreme Court appeals, using the 14th Amendment to slowly and systematically eradicate gender discrimination in one law after another, pushing the courts to scrutinize laws that classify on the basis of gender with a standard higher than the deferential "rational basis" standard.
As Ginsburg was reading her deceased husband's tribute, the blogosphere was buzzing with yet another round of Grizzly-gate—the fight over whether Sarah Palin's claim to feminism is legitimate or spurious. In a thoughtful piece in the New York Times, Anna Holmes and Rebecca Traister argued that Democrats have given up on full-throated feminism, and in doing so have ceded the field to Palin and her clan of Grizzlies. Holmes and Traister point out the irony that it was progressives who launched Palin's meteoric rise: "As a teen, she played basketball thanks to Title IX; as an adult, she enjoyed a professional life made possible by the involvement of her load-bearing husband Todd, entering Alaska's governor's mansion at 42 with four children in tow and giving birth to a fifth while there."
To which I would just add that Palin and the Mama Grizzlies also owe a debt of thanks directly to Ruth Bader Ginsburg, who almost single-handedly convinced the courts and legislatures to do away with gender classifications in matters ranging from a woman's right to be executor of her son's estate (Reed v. Reed, 1970), to a female Air Force lieutenant's right to secure housing allowances and medical benefits for her husband (Frontiero v. Richardson, 1973), and the right of Oklahoma's "thirsty boys" (her words) to buy beer at the Honk n' Holler at the same age as young women (Craig v. Boren, 1976).
It was in Craig v. Boren that Ginsburg secured the court's agreement that—in her words—the "familiar stereotype: the active boy, aggressive and assertive; the passive girl, docile and submissive" was "not fit to be written into law." The seed for Sarah Palin was sown. And whether Palin wants women to be allowed to buy beer at 18, or 21, or not at all, the fact that the legal system doesn't care whether you're a woman or a man anymore changed her life. You can draw a straight line between Ginsburg's fight against these seemingly harmless gender classifications that were rooted in seemingly harmless gender stereotypes and the Mama Grizzlies who roam our political landscape today.
Those who like to believe they have picked themselves up by the bootstraps sometimes forget that they wouldn't even have boots were it not for the women who came before. Listening to Palin, it's almost impossible to believe that, as recently as 50 years ago, a woman at Harvard Law School could be asked by Dean Erwin Griswold to justify taking a spot that belonged to a man. In Ginsburg's lifetime, a woman could be denied a clerkship with Felix Frankfurter just because she was a woman. Only a few decades ago, Ginsburg had to hide her second pregnancy for fear of losing tenure. I don't have an easy answer to the question of whether real feminists are about prominent lipsticky displays of "girl-power," but I do know that Ginsburg's lifetime dedication to achieving quiet, dignified equality made such displays possible.
After she finished reading her husband's charmingly funny speech, and while folks in the audience were still wiping away tears, Ginsburg sat down for a "fireside chat" with the chief justice of Canada, Beverley McLachlin, NPR's Nina Totenberg, and Robert Henry, the president of Oklahoma City University. (The woman sitting next to me whispered that the setup looked an awful lot like The View.) In response to a question about work-life balance, Ginsburg explained that in the early '70s, her son, "what I called a lively child but school psychologists called hyperactive," was forever in trouble and that she was constantly called in to his school, even though she and her husband both had full-time jobs.
"One day, I was particularly weary,"* she explained, and so when the school called, she said, "This child has two parents. I suggest you alternate calls, and it's his father's turn." She said calls from the school came much less frequently after that, because the school was "much less inclined to take a man away from his job." Ruth Bader Ginsburg doesn't growl and doesn't issue threats, and she rarely eats small forest dwellers. But she is still the mother of all grizzlies to me.
Correction, Aug. 31, 2010: This article originally quoted Ginsburg as saying, "One day, I was particularly wary." (Return to the corrected sentence.)
Dahlia Lithwick writes about the courts and the law for Slate.
Photograph of Justice Ruth Bader Ginsburg by Justin Sullivan/Getty Images.