Women of the Highest Court
By Jessica A. LevinsonFebruary 2, 2016
Sisters in Law by Linda Hirshman
Hirshman is a lawyer and author who most recently wrote the well-received book about the gay rights movement Victory: The Triumphant Gay Revolution, and her smart and accessible writing is once again on display in Sisters in Law.
For someone who graduated from law school a decade ago, one of the most striking aspects of the book is the reminder that our history of open gender discrimination is so very recent. Sisters in Law is an important work if only because it reminds us of the enormous strides toward equality that have occurred within the lifetime of those still working to create more gender parity — both O’Connor and Ginsburg experienced overt and obvious discrimination as women.
The world described in Sisters in Law must feel like ancient history to those currently in law school. When the current crop of law school students walk into a classroom they expect to see the room divided evenly between men and women. Save for a few classes like “Sports Law,” or “Gender and the Law,” they will remark upon any obviously unequal gender divide. When female law students go to interview with law firms, judges, government agencies, and nonprofit organizations, the idea of being locked out of a position for which they are qualified because of their gender is completely foreign. Sisters in Law reminds us how much has changed within a matter of decades.
There can be no doubt that gender discrimination is still alive and well, but at least in the legal field, it now only exists beneath the surface. Interviewers can no longer decline applicants on account of their gender. Despite graduating in the top of her class, O’Connor was denied jobs at private law firms and instead went to work for the government. Ginsburg, who also graduated at the top of her class, was denied a clerkship with Justice Felix Frankfurter because of her gender. After she took a lower level clerkship she entered academia, eventually creating a women’s rights course at Columbia Law School.
Sisters in Law begins with what is arguably the most important Supreme Court case on the issue of gender discrimination, United States v. Virginia. There the Court held that the Virginia Military Institute (VMI) had to accept both male and female applicants.
Hirshman immediately ties the two characters of the book together for the reader by explaining that although O’Connor was first assigned the VMI opinion, she passed on the opportunity to write this landmark opinion, saying simply, “This should be Ruth’s.” Hirshman does not try to portray O’Connor and Ginsburg as something they were not, close personal friends, but she does a good job of detailing the symbiotic relationship between the two.
The book argues that without Justice O’Connor as the first, there can be no Justice Ginsburg as the second. Hirshman describes O’Connor as more palatable and less threatening to men, particularly men in the legal profession, since she is conventionally feminine in many ways. She cooks, she entertains, and she joins women’s clubs. In this way O’Connor paves the way for Ginsburg who serves as a more threatening figure, because she acts so much less like a housewife than O’Connor. It is Ginsburg’s husband, the famed tax attorney Marty Ginsburg, who is the chef in the house.
O’Connor, a Republican daughter of the American west, whose father often treated her as an extra ranch hand, became the first woman to serve as the majority leader of the Arizona Senate by using social connections and slowly and steadily rising through the ranks. Ginsburg, a Democrat, is a product of the intellectual Northeast. She grew up in Brooklyn and was taught by her mother that she could excel in the career of her choosing.
Unlike O’Connor, Ginsburg dedicated much of her career to fighting gender inequality. She was, unquestionably, America’s top litigator and advocate for women’s rights. Starting in the 1970s Ginsburg founded and led the Women’s Rights Project at the American Civil Liberties Union. She helped move case law from openly condoning gender discrimination to protecting women’s rights under the Constitution. Ginsburg was a master of picking the right cases to push her agenda. She argued that under the Equal Protection Clause states could not require men and women to assume traditional or stereotypical gender roles.
O’Connor and Ginsburg sat together on the court for more than a dozen years. Hirshman argues that true to form, O’Connor generally played defense, working to ensure that the court did not roll back already-existing protections for women, while Ginsburg played offense, in keeping with her personality and goals, working to push her agenda forward and increase protections for women.
Throughout the book, Hirshman describes O’Connor as less intelligent, less strategic, and a lesser justice than Ginsburg. In some ways one could finish the book thinking O’Connor’s greatest achievement was paving the way for Ginsburg. Hirshman seems to revere Ginsburg for all of the things about her that make her different from O’Connor. Ginsburg is described as brilliant, strategic, and always thinking of the long game.
But with the benefit of hindsight, O’Connor’s tenure on the court may begin to appear even more important for the women’s movement. It was O’Connor’s replacement on the court, Samuel Alito, who recently put the phrase “gender equality” in quotation marks in an opinion. To O’Connor, the first female justice on the nation’s highest court, gender equality is not something one puts in quotation marks; it is something one strives to accomplish.
And for all of the differences that Hirshman details between the two title characters, she also treats the reader to some intriguing similarities. Both women exercised strength, patience, and control, often waiting years to expose the discrimination waged against them earlier in their careers. O’Connor, who was turned down for a job at the law firm of Gibson, Dunn & Crutcher after law school, agreed to be the keynote speaker at the firm’s centennial celebration and ribbed the firm for its past practices. When Ginsburg started at Harvard Law School in the mid-1950s, the school’s famed Dean Erwin Griswold asked her to justify taking a position that could have gone to a man. Ginsburg told the story so many times that Griswold later claimed he was only kidding.
In Sisters in Law Hirshman offers up a digestible yet important joint biography of two justices who in no uncertain terms changed the tapestry of our society to better the lives of women, and by extension men. Hirshman ends the book by discussing the importance of ensuring that there are more female justices on the Supreme Court. She understands that women and men have different experiences and bring those experiences to bear on important jurisprudential questions. For instance, when ruling on issues of gender discrimination in the workplace, it is helpful to have people who may have experienced that discrimination weighing in on the court’s decisions. In this way Hirshman puts the reader on alert for the potential dangers that can occur when the nation’s highest court is populated by members of one gender.
As we turn our attention to the next presidential election, Sisters in Law provides a reminder of the importance of the president’s SCOTUS appointees. The legacies of both O’Connor and Ginsburg will likely be felt much longer than the men who appointed them to the Supreme Court, Presidents Reagan and Clinton, respectively. Hirshman’s book helps her readers understand why, beyond party politics, this matters.
Jessica A. Levinson is a professor at Loyola Law School, Los Angeles, where she teaches a class about the Supreme Court, and the President of the Los Angeles Ethics Commission.
Jessica A. Levinson is an associate clinical professor at Loyola Law School, Los Angeles, where she teaches election law, money, politics and the Supreme Court, and the campaign finance seminar. She is also Vice President of the Los Angeles Ethics Commission.
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