/ NEW1 YORK CITY LAW REVIEW Edited by the students of the City University of New York School of Law

,\

THE CITI' UNIVERSITI' OF NEW YORK SCHOOL OF LAW 65-21 MAIN STREET FLUSHING, NEW YORK 11367

VOLUME SEVEN FALL 2004 NUMBER TWO NEW YORK CITY LAW REVIEW Edited by the students of the City University of New York School of Law

VOLUME SEVEN FALL 2004 NUMBER TWO

2003-2004 EDITORIAL BOARD

CAROLYN E. COFFEY Editor in Chief

HELEN H. AHN Managing Editor

SILVIA x. LIU JULIE A. GRAVES Senior Executive A rtides Editor Symposium Editor

KAILA OBSTFELD ElSENKRAFT Notes & Comments Editor

ARTICLES EDITORS

MARIA MARANION KRA.us ELIZABETH A. RAMSEY NADA MAALOUF STACY-ANN SucKoo EVELYN MALDONADO SARAH E. \.VHEELER

STAFF MEMBERS

SARAH M. EISENBERG FUMIKO lKESHIRO ALLISON AGEYEVA ELLEN RUTH MAGID ROBIN L. 'BURGESS Luz MEDRANO JOHN M. CAMPBELL JAIMEE LYNN NELSEN HELEN CHEN HOLLIS PFITSCH DONNA CHIU REBECCA PRAUS BRIAN K. CIFUENTES GREGORY SHARMA-HOLT MICHAEL DAVIDOV ALECIA ERICA SMITH SosIMO FABIAN ERIN A. STANTON ELISA FISCHER REBECCA STEGMAN SHIRA GALINSKY DONNA L. T APELLINI SUZANNE HARRINGTON RITA VERGA

PROF. ANDREA McARDLE Co-Faculty Advisor

PROF. RUTHANN ROBSON CrrFaculty Advisor NEW YORK CITY LAW REVIEW Edited by the students of the City University of New York School of Law

Volume Seven Fall 2004 Number Two

CONTENTS

Celebrating the Jurisprudence of Justice Ruth Bader Ginsburg

Introduction: Learning to Listen to Ruth Bader Ginsburg Linda Greenhouse 213

Remarks of Ruth Bader Ginsburg, March 11, 2004, CUNY School bf Law 221

Scrupulous in Applying the Law: Justice Ruth Sidney Harring Bader Ginsburg and Capital Punishment & Jeffrey L. Kirchmeier 241

Twin Pillars of Ji;idicial Philosophy: The Impact of the Ginsburg Collegiality and Gender Discrimination'. Principles on Her Separate Rebecca L. Barnhart & Opinions Invo{ving Gender Discrimination Deborah Zalesne 275

Real Differences and Stereotypes-Two Visions of Gender, Citizenship, and International Law M. Isabel Medina 315

Returning the Language of Fairness to Equal Protection: Justice Ruth Bader Ginsburg's Affirmative Action Jurisprudence in Grutter and Gratz and Beyond Shira Galinsky 357

Ruth Bader Ginsburg: An Annotated Bibliography Sarah E. Valentine 391 Justice Ginsburg Helps City University of New York School of Law Celebrate Its 20th Anniversary March 11, 2004 *

Dean Kristin Booth Glen introduces Supreme Court Justice Ruth Bader Ginsburg to the law school community.

Children from CUNY Law's child care center welcome Justice Ginsburg with flowers .

... OJ ~"' "" ;:I= 0 C/) Justice Ginsburg ertjoys a joke with the crowd. Justice Ginsburg's address centered on the role of women who helped 10 shape history.

CUNY's auditorium was filled to capacity.

*Transcript of remarll.v on page 221. LEARNING TO LISTEN TO RUTH BADER GINSBURG

Linda Greenhouse"

Because this special Symposium issue of the New York City Law Review is filled with articles analyzing Justice Ginsburg's life and work, I decided that this introduction could most usefully take a somewhat different approach to the subject. My focus is not what Ruth Bader Ginsburg has told the Supreme Court over the years, both as advocate andJustice, but rather the impact that her words and ideas had on her audience. I want to focus on one particular member of that audience, Justice Harry A. Blackmun. He was her Supreme Court colleague for only one iYear, October Term 1993, but for twenty-two years before that, ever since Professor Ruth Bader Ginsburg submitted her brief on ihe merits for the appellant in Reed v. Reed, 1 he had been one of her most important listeners. This focus will add some value to the lperspectives presented in this Symposium issue, I think, because quite often, Justice Blackmun was a skeptical lis­ tener. We knqw this not only from his votes in such cases as Fron­ tiero v. Richardson,2 in which he rejected Professor Ginsburg's call to subject sex didcrimination to strict scrutiny, but from the notes and memos contained in the voluminous collection of his papers,3 opened to the public by the Library of Congress a week before Jus­ tice Ginsburg's visit to the law school. By the end of his career, Justice Blackmun was such an icon of feminism that I was quite taken aback to see that when it came to women's issues, especially but not only e~rly in his career, he could best be characterized as a grumpy old man. Whatever Ruth Ginsburg was selling, Harry Blackmun was not buying. •, That fact,~ as well as the fact that he eventually did work his way around to her point of view, is a reminder both of the context in

* B.A., Radclitfe College, 1968; M.S.L., Yale Law School, 1978. Since 1978, the author has been Supreme Court Correspondent for The New York Times. She won a I Pulitzer Prize in journalism in 1998 for her coverage of the Court. Her biography of i Justice Blackmun, based on his papers at the Library of Congress, will be published in May 2005 by Times Books/Henry Holt. I 404 U.S. 71 r(l971). 2 411 U.S. 677 (1973). 3 See Linda Greenhouse, Documents Reveal the Evolution of a justice, N.Y. T1MES, Mar. 4, 2004, at Al for an analysis of Justice Blackmun 's papers.

213 214 NEW YORK CITY LAW REVIEW [Vol. 7:213 which Ruth Ginsburg began her Supreme Court advocacy and of the impact she had. The arguments she made struck many of the middle-aged men who heard them as counter-intuitive. What could possibly be wrong with laws aimed at protecting women from harm, sheltering them from the consequences of their limited earning capacity, taking into account the biological and cultural imperatives of motherhood? The fact that she often brought these questions to the Court in cases with male plaintiffs was all the more unsettling. Under her rigorous analysis and presentation, tectonic plates began to shift, as this Symposium issue documents, but Harry Blackmun'sjoumey reminds us that there was nothing inevi­ table about where they would come to rest. That he was not the first in line to enlist in Ruth Bader Gins­ burg's crusade is hardly surprising for a man born in 1908, who graduated from Harvard Law School a full generation before that august institution deemed women worthy of attending (and it was only last year that Harvard Law School got a female dean) .4 At the time Ruth Ginsburg started bringing cases to the court in her ca­ pacity as director of the ACLU Women's Rights Project, official dis­ crimination on account of sex was simply not considered a constitutional harm - no more so than discrimination on account of eye color or height would have been. Her challenge was to deconstruct the layers of paternalism and stereotyped assumptions through which women, even when receiving especially beneficial treatment, were disabled from participating as full citizens in the civic affairs of the country. She accomplished this case by case, through a careful litiga­ tion strategy in which the challengers to the status quo were just as likely to be men as women. Some of her most significant victories came on behalf of male petitioners who were disadvantaged by as­ sumptions built into various social service laws about women being in special need of the state's solicitude. The first case she brought to the court was Reed v. Reed,5 argued in October of 1971, the start of Harry Blackmun's second term. This was not one of her six Su­ preme Court arguments, but she was counsel of record for the 11 ACLU. The case challenged an Idaho probate law under which a •I man received an automatic preference over a similarly situated wo­ " man for court appointment to administer an estate. Ruth Gins-

4 Sam Dillon, First Wornan Is Appointed as Dean of Hmvard Law, N.Y. TIMES, Apr. 4, 2003, at AIS (reporting appointment or Elena Kagan and noting that the school did not admit women until 1953). 5 404 U.S. 71 (1971). 2004] LEARN/NG TO LISTEN TO RUTH BADER GINSBURG 215

I burg's client iwas Sally Reed, the mother of a young man who committed suicide, dying intestate. She and her husband were sep­ arated. Each applied to be named administrator of their son's very small estate. l)nder the preference provision of the Idaho probate law, in which, "males must be preferred to females" if both were "equally entitled,'' the father, Cecil Reed, received the appoint­ ment.6 Sally Reed challenged this outcome, but the law was upheld in the Idaho Supreme Court, basically on the ground of adminis­ trative convenience. The statutory preference for men "is neither an illogical nor arbitrary method devised by the legislature to re­ solve an issue that would otherwise require a hearing as to the rela­ tive merits" of competing claims, the state court said.7 Ruth Ginsburg's challenge to the statute, and to that opinion, proved to be a hole-in-one. The court overturned both, unani­ mously, in a seven-page opinion by Chief Justice Burger. Clearly the statute did serve an objective, the court said, one that was not completely illegitimate. But it was simply not a weighty enough ob­ jective to overcome the constitutional command of equal protec­ tion. The automatic preference was "the very kind of arbitrary legislative chqice forbidden by the Equal Protection Clause," the court said.8 By providing dissimilar treatment for similarly situated men and women, "the challenged section violates the Equal Protec­ tion Clause."9 In other words, convenience was not enough. Al­ though by its1 terms, the opinion applied nothing more rigorous .. than rational basis review, this was rational basis with teeth: dis­ I crimination oh account of sex violated the Constitution. f Harry Blackmun went along, but he was not particularly happy. "The ACLU, on behalf of the appellant mother here, has filed a very lei,igthy brief filled with emotion and historical context about the inferior status of women,"10 he wrote in his notes to him­ self while preparing for the argument. His note after argument, when the handwriting was on the wall for reversal, said: "Avoid an emotional opinion about women's rights. Write it narrowly." 11 When I rkad these notes, I wondered what could have been in Ruth Ginsburg's brief that struck Justice Blackmun as so over the top. So I wen~ up to the Supreme Court library and called for the

6 Id. at 73. ,I 7 Id. at 76. s Id. 9 Id. at 77. 10 Harry A. Blackmun Collection ("H.A.B. Collection"), Library of Congress Manu­ script Division, Container 135, folder l 0. 11 Id. 216 NEW YORK CITY LAW REVIEW [Vol. 7:213 brief. While at sixty-eight pages it was not drastically longer than the fifty pages permitted by the Court's current rules, 12 this was the mother of all sex discrimination briefs, clearly aimed at educating the court on a scale that went considerably beyond the challenge to an Idaho probate law. Citing Gunnar Myrdal and other social commentators and critics, the brief sought to get into the Supreme Court record, and the justices' collective consciousness, the disadvantaged status of women in society-"pervasive social, cultural, and legal roots of sex-based discrimination," as the brief put it. 13 "American women have been stigmatized historically as an inferior class and are today subject to pervasive discrimination ... A person born female con­ tinues to be branded inferior for this congenital and unalterable condition of birth."14 These were hardly radical observations, even in 1971. Whether they were too emotional I will leave for others to decide. As a legal matter, the brief asked for official disc'rimination on account of sex to be accorded strict judicial scrutiny. That did not happen, not then, not two years later when the strict scrutiny argument got only four votes in Frontiero15-and, I should point out, not yet. But Ruth Ginsburg kept coming back, making her arguments. Her actual argument, as opposed to the briefing, seems to have been crucial in persuading Justice Blackmun to see things her way in a 1975 case, Weinberger v. Wiesenfeld, 16 a challenge to a federal social security provision that granted survivors' benefits to the widow as well as to the children of a deceased male wage-earner, based on his earnings, but withheld similar benefits from a wid­ ower. Justice Blackmun's clerk, Richard Blumenthal, now the attor­ ney general of Connecticut, urged him to vote to uphold the statute against the charge of unconstitutional sex discrimination brought by Ruth Ginsburg's male client. "No doubt, the statute's provision rests on a stereotype-a stereotype that has greatly di­ minished validity,"17 the law clerk wrote. But he said it did still have some validity, based on the income disparities between the typical man and the typical woman. "The objective is to alleviate need. Women are more likely to be needy, even in this increasingly liber- ,..l

12 Sur. CT. R. 33. 13 Brief for Appellant at IO, Reed v. Reed, 404 U.S. 71 (1971) (No. 70-4). 14 Id. at 25. 15 Frontiero v. Richardson, 411 U.S. 677 (1973). JG 420 U.S. 636 (1975). 17 H.A.B. Collection, Container 203, folder 6. 2004] LEARNING TO LISTEN TO RUTH BADER GINSBURG 217 ated age. The statute would seem to be constitutional."18 Justice Blackmun's notes indicate that he was inclined to agree. In his pre-argument memo to himself, he wrote: "Widows with children are more likely to need social security benefits than widowers with children. This is due to the fact that the widower usually is working and enjoys a higher income than his female counterpart."19 If this premise was outmoded, he said, the argu­ ment should be made to Congress and not to the court. "So long as the objective of the differential is to alleviate need, I suspect that we shall have to hold that the differential is not unconstitutional. For the moment, therefore, I shall vote to reverse."20 But Justice Blackmun's mind changed as he listened to Ruth Ginsburg's argument. "It is a good clean case, factually," 21 he noted to himself while on the bench. "The differential does seem rather useless. "22 He~ ended up joining Justice Brennan's opinion to hold the provision ,unconstitutional. By the end of his career, he was fully on board. He had come to see Roe v. yvade23 as a decision not just about doctors and their patients, but also about women's place in society. One of his very last opinions came in JE.B. v. Alabama,24 in April 1994, holding that gender is an impermissible basis for the exercise of peremp­ tory challenges in jury selection. The Supreme Court case grew out of a paternity' and child support action in Alabama state court, in which the state, representing the interests of the mother, used nine of ten peremptories to remove male jurors, creating an all-female jury. "When state actors exercise peremptory challenges in reliance on gender stereotypes, they ratify and reinforce prejudicial views of the relative abilities of men and women,"25 Justice Blackmun wrote. "It denigrates the dignity of the excluded juror and, for a woman, reinvokes a history of exclusion from political participation."26 Jus­ tice Ginsburg silently joined this majority opinion. She had done her work. There was nothing she needed to add. When Justice Ginsburg was nominated to the Supreme Court,

18 Id. t9 Id. 20 Id. 21 Id. 22 Id. 23 410 U.S. 113 (1973). 24 511 U.S. 127 (1994). 25 Id. at 140. 26 Id. at 142. 218 NEW YORK CITY LAW REVIEW [Vol. 7:213

I called her a 'judicial-restraint liberal."27 By that, I meant that she has a liberal vision of a muscular and broadly inclusive Constitu­ tion coupled with a pragmatist's sense that the most efficacious way of achieving the Constitution's highest potential as an engine of social progress is not necessarily through the exercise of judicial supremacy. During her visit to CUNY Law School, she made clear that the protection of civil liberties is not a job for judges alone-in fact, that judges alone cannot do the job. In the question-and-answer session following her formal re­ marks, the Justice was asked to list "the most important legal issues that you believe the United States Supreme Court faces today."28 Here is her reply: I would like to amend the question slightly to say: "what are the most important issues that the people of the United States are facing today?" Every day the question of the balance between liberty and security is before us. I have said on that subject that people, the people of the United States, take great pride in our heritage; that we love liberty and cherish freedom; and that we have not been given to security concerns to the extent some other countries have. Will we be able to preserve that spirit given the current challenges? If the people don't care about pre­ serving their liberty and are overwhelmed by security concerns, there is no court that can change that sad development. But I am confident that it won't happen in the United States, because the people do care. The courts, you know, are reactive institu­ tions. We don't create the controversies that come to us, we re­ spond to the problems that are emerging in the society the courts exists to serve. The Supreme Court will respond to these challenges, but there must be people out there to bring them and support them.29 That stance as a 'judicial-restraint liberal" has enabled her to speak to both sides of the court and to win not only the affection, but the respect of her colleagues. Who would have believed that ChiefJustice Rehnquist would join her in invalidating the Virginia Military Institute's all-male admissions policy,30 or that last term, in upholding the Family and Medical Leave Act against an Eleventh Amendment attack, he would write an opinion that sounded as if he was channeling for her-talking about the burden placed on

27 Linda Greenhouse, The Supreme Court: A Sense ofjudicial Limits, N.Y. TIMES, July 22, 1994, at Al. 28 Justice Ruth Bader Ginsburg, Remarks at the City University of New York School of Law (Mar. 11, 2004), 7 N.Y. CITY L. REv. 221, 232 (2004). 29 Id. 30 United States v. Virginia, 518 U.S. 515 (1996). 2004] LEARNING TO USTEN TO RUTH BADER GINSBURG 219 women by the stereotyped assumption that if an emergency arises at home, they are the ones who will leave the office to deal with it.31 Harry Blackmun was not an easy sell, but that made his even­ tual conversion all the sweeter. To show you just how tough a job it was, let me quote from a memo I found in his file from November, 1980, thirteen years before Justice Ginsburg would join the court. It had just occurred to the Justices that they would have a female colleague someday, probably someday soon (and they were right­ it happened six months later). What to do about the traditional appellation, "Mr. Justice"? The proposal was made to eliminate the "Mr." Justice Blackmun o~jected. "It seems to me that of late we tend to panic and to get terribly excited about some rather incon­ sequential things," he said in a letter to Chief Justice Burger that he circulated tto all his colleagues.32 "I regard this as one of them .... We seem to be eliminating, step by step, all aspects of diverse­ ness, and we give impetus to the trend toward a colorless society." He concluded: "As Hugo Black once despairingly said (and how well I rememper), 'All these changes around here!' "33 There have indeed been changes around here.

31 Nevada Dep't. of Human Res. v. Hibbs, 538 U.S. 721 (2003). 32 H.A.B. Collection, Container 1548, folder 4. 33 Id. I REMARKS OF RUTH BADER GINSBURG MARCH 11, 2004 CUNY SCHOOL OF LAW

Dean Kristin Booth Glen welcomed Supreme Court Justice Ruth Bader Ginsburg to the City University of New York School of Law on March 11, 2004 in celebration of the Law School's Twentieth Anniversary. The Dean introduced Jus~ice Ginsburg by comparing the history of the school to exper­ iences in Justice Ginsburg's life, including the fact that she was a working mother when s~e attended law school. Following the Dean's remarks, chil­ dren from CUNY Law's child care center welcomed Justice Ginsburg by presenting her ~vith a bouquet of flowers. JUSTICE~ GINSBURG: Your dean, Kris Glen, is certainly right about the children's welcome. I have never experienced anything like it. I will disClose to you something really not a secret. It is that if I could have atjy talent God could give me, I would be a great diva. I would be perhaps Renata Tebaldi or Beverly Sills. But being a mon­ otone, a sparrow, not a robin according to my grade school teach­ ers, I settled for the next best thing. My job is endlessly challenging; it is also a most secure position. If I behave well, the Constitution fays, I can retain my office. May I say something about this audience of students. I became what I think of as an equal rights advocate largely because of my students. I am all the more attracted to CUNY's student body be­ cause people who enroll here chose to be public interest lawyers. I was, one might say, tugged into equal rights advocacy by students who wanted a course in Women in the Law, and by women who trickled into the ACLU's office in New Jersey, complaining about things that had never been complained about before: Like losing a job as a schoolteacher when one's pregnancy began to show, or not

being able to 1get health insurance for your family if you are a wo­ man because family coverage was available only to men. My public service responded to clients brave enough to think that the injustices they suffered could be corrected through lawful processes, and to my students who wanted to know about the bur­ geoning women's movement. The combination or coming to­ gether of those pressures made me a public interest lawyer.

The editors of the New York City Law Review thanh Linda C. O'Donnell and Franklin Siegel for all their help and gratefiilly acknowlRdge the assistance of Bonnie Pmsz.ynski and the Southern District of New Yarh court reporters for the transcription ofjustice Ginsburg's remarks.

221 222 NEW YORK CITY LAW REVIEW [Vol. 7:221

There is also something special about the complexion of CUNY's student body. The dean referred to the swearing-in cere­ mony at the Supreme Court. It is indeed something spirit lifting, as this audience is. I look out into the courtroom on the days we have group admissions and think to myself, there is probably no other country in the world where you would see such an audience. Peo­ ple of every ethnic background, men and women. The assemblage reflects the best of the U.S.A.'s traditions. Well, now, I don't want to hold you over the time planned for the reception, so let me commence my remarks. I will start with the famous plea of Abigail Adams to her hus­ band, John, to remember the ladies in framing the nation's, the new nation's, laws. I am taking a cue from Abigail, and am also bearing in mind that March is Women's History Month. I will speak of two great women, and relate two sets of little known accounts of how those women figured in the history of the U.S. Supreme Court. One set is drawn from a memoir written in the years 1911 to 1916, a manuscript unpublished until 2002. The memoir's author is Malvina Harlan. She was the wife of the first Justice John Mar­ shall Harlan, whose tenure on the Supreme Court ran from 1877 until his death in 1911. The other set features a great lady from Mississippi, Burnita Shelton Matthews. She was the first woman ever to serve on a U.S. District Court. I will start with Judge Mat­ thews and the historic episode in which she played the lead role. Burnita Shelton was born in 1894 in a rural county in Missis­ sippi and was raised there along with her four brothers. She be­ came a court watcher at an early age. She regularly accompanied her father, who was clerk of the county's chancery court, and she would sit in on trials. She wanted to become a lawyer, but her fa­ ther, probably believing that a woman couldn't make a living in the law, strongly opposed. that career choice. She bowed to his prefer­ ence and enrolled in the Cincinnati Conservatory of Music, where she gained a teaching certificate. She then returned to Mississippi, still hopeful of becoming a lawyer, but in those days there was no law school in that state that would admit women. She continued to teach music in grade school and to give piano lessons to support herself. Then, in 1917, she married Percy Matthews. He was a recent graduate of the Chicago Kent Law School. Not long after their marriage, Percy enlisted and served in World War I as a pilot. Post war, he stayed in the service and became a permanent member of 2004] REMARKS OF RUTH BADER GINSBURG 223

the Army Judge Advocate General Corps. They remained married for fifty-two years, until his death in 1969, but Burnita decided that she did not want to be a camp follower. She preferred a life of her own, so they lived apart for much of their marriage and they had no children. After Percy departed for the war and during the height of the women's suffrage movement, Burnita moved to Washington, D.C. attracted by the prospects of law school admission there. Her fa­ ther, ultimately understanding his daughter's unflagging will to be­ come a lawyer, relented and offered to pay her law school tuition, but by then J?urnita was accustomed to independence and so re­ solved to pay her own way. She attended law classes at night at National University, which is now George Washington University, and she held down a day job at the Veterans Administration. She earned an LLB in 1919 and the next year, a master of patent law degree. On weekends she picketed the White House. Later she recalled: "You could go to the front of the White House and you could carry a banner, but if you spoke you were arrested for speaking without a permit. So, if the press or anyone else asked me why I was there, I didn't answer." The banner she carried urging votes for women declared her pur­ pose and no arrest record impeded her admission to the bar. When she graduated from law school, no law firm in the Dis­ trict of Columbia would hire her, and even the Veterans Adminis­ tration, wher~ she had diligently worked while a law student, declined to c-0nsider her for a position as a lawyer, simply and solely because she was a woman. Burnita wasted no time on anger, resentment, ~r self-pity. She knew that those emotions sap strength and do no good. Instead, she devoted her energy to building a practice of her own. Believing that the 19th Amendment was in­ complete, Burnita became counsel to the National Woman's Party, a job she did pro bono while developing her successful law practice. The Woman's Party was the more radical wing of the women's suffrage movement. Its members wanted to assure that women achieved not just the vote, gained in 1920. They urged the passage of an Equal Rights Amendment aimed to secure women's full citi­ zenship stature. The Party first proposed an ERA in 1923 and re­ newed the proposal almost every year thereafter. The Woman's Party also urged legislators to repeal so-called protective labor laws that applied only to women, and other laws that restricted women's opportunities. Burnita wrote of that en­ deavor in the.American Bar Association Journal in the mid-1920s: 224 NEW YORK CITY LAW REVIEW [Vol. 7:221

"It is, of course, disappointing to women that men of the legal pro­ fession are unable to see equality as equity when applied as be­ tween men and women," she commented, "but then it is not surprising when one remembers that this defective vision, this re­ gard of discrimination as protection, is traditional." Burnita helped change that tradition. Now, to the historic episode. The D.C. bar knew Burnita Shelton Matthews as a skilled prac­ titioner in the field of eminent domain. In 1927, the Federal Gov­ ernment condemned the National Woman's Party headquarters near the Capitol. Matthews' representation of the Woman's Party and adjacent property owners led to the largest condemnation award the United States had yet paid. The Government put the condemned land to defensible use. Demolition of the Woman's Party headquarters made way for the Supreme Court's current building. The Woman's Party used the compensation it received to purchase the historic Sewall-Belmont House, situated on Constitu­ tion Avenue and Second Street, just one block down from the Su­ preme Court. That house is still home to the Woman's Party. It is used nowadays for various receptions, many of them celebrating women's achievements.Just now they are planning a celebration of Billie Jean King. The archives maintained by the Supreme Court Curator's Of­ fice contain detailed notes on the condemnation of the Supreme Court site, notes that reveal what I am about to tell you. ChiefJus­ tice Taft was the propelling force behind the building project. He complained in a June 1927 note to Justice Van Devanter: "The Wo­ man's Party would never consent to a reasonable price. They want to include as an element the historical associations of that ram­ shackle old house of theirs." The house was erected in 1815 after the burning of the Capi­ tol in the War of 1812. It served as temporary quarters for Congress and later, during the Civil War, as a jail for Confederate prisoners. In November 1928 correspondence, Taft continued to com­ plain. He reported that "the pace of the condemnation proceed­ ings was dreadfully slow and most exasperating." Of the Woman's Party headquarters he deplored: "It's just a broken down old build­ ing that ought to be removed, but the women, insisting on its his­ torical interest, are most unprincipled. They are attempting to use every method possible to squeeze up the amount they are to derive from the Government." 2004] REMARKS OF RUTH BADER GINSBURG 225

Through it all, Bumi ta remained unperturbed. A low point for the Government was reached at trial. The Department of Justice undertook to diminish the value of the Woman's Party property. To that end, the Government offered the expert testimony of two architectural engineers. The experts testified that in their well-in­ formed opinion, the house was a post-Civil War construction, built in 1869 after 'the demolition of the original 1815 structure. The Government's ploy did not work. Burnita's exhaustive preparation carried the day and won the case. She introduced reams of evidence to show that the 1815 building had never been demolished and still occupied the property. Her evidence included the testimony of a member of the Society of Oldest Inhabitants, a very elderly gentleman, located the night before the close of the Woman's Party's case. Most devastating to the Government's position was a photo­ graph of one Mrs. Greenlowe, a daring Confederate spy, taken against a wall of the still existing building when it was used as a Civil War jail. So much for the Justice Department's contention that the building was constructed after the Civil War in 1869. In all, Burnita gained $400,000 for her clients, a large sum even now, an enormous one three-quarters of a century ago. In 1949, after a nationwide lobbying effort and a personal plea from India Edwards, the savvy head of the Women's Division of the Democratic National Committee, President Truman appointed Bumi ta Shelton Matthews to the U.S. District Court for the District of Columbia. Her colleagues on the bench were initially less than welcoming. They assigned her the most technical, least rewarding matters. One District of Columbia jurist was reported to have com­ mented, "Mrs. Matthews would be a good judge, but there is one thing wrong. She's a woman." The President was of a different mind. "This was one appointment about which I had no misgiv­ ings," Truman said, "only genuine satisfaction." Judge Matthews' secure hand in managing each case identi­ fied the great lady from Mississippi much more than the fine lace collar and the lace cuffs on her robe or her petite size. She was slender and about my height. A soft Mississippi-accented voice gave little indication of her bright mind and iron will. At a time when women at thJ bar faced many closed doors, Judge Matthews sig­ naled her confidence in women lawyers by hiring only women as law clerks. Anp they turned out, as you might expect, to be the very best. After nearly twenty years on the District Court, Judge Mat- 226 NEW YORK CITY LAW REVIEW [Vol. 7:221 thews took senior status in 1968, but for a decade more she sat regularly on Court of Appeals panels. She died in 1988 at the age of ninety-three, and it was my great good fortune, when I was ap­ pointed to the D.C. Circuit in 1980, to meet and converse with this truly brave human. Her eyesight was failing, and she had difficulty hearing, but her spirit remained indomitable. She was one of those people who fit Mahatma Gandhi's description of what it takes to open doors, in her case, to a once silenced majority, and to ad­ vance human rights. "First, they ignore you," Gandhi said, "then they laugh at you, then they fight you, and then you win." Travel back with me now further in time as I speak of a project started some years ago. I was collecting information in 1997 for a lecture to be presented to the Supreme Court Historical Society. The topic was the lives of wives of Supreme Court Justices. The Library of Congress called to my attention a memoir lodged among the papers of the first Justice John Harlan, an un­ published manuscript written by the Justice's wife. Members of the Harlan family and the Justice's biographer were well acquainted with the manuscript, but it had attracted no public attention. The manuscript's author, born Malvina Shanklin, lived from 1839 until 1916, but she dated her memoir, which is titled Memories of a Long Life, from 1854-the year she met John Marshall Harlan. She was then 15-until 1911, the year he died. The manuscript contained well-told anecdotes and keen insights about the Harlan family, politics in Indiana, Kentucky, and Washington D.C. in pre­ and post-Civil War days, religion, and, of course, the Supreme Court. I was drawn to Malvina's Memories as a chronicle of the times as seen by a brave woman of the era. I thought others would find the manuscript as appealing as I did. For many months I tried to inter­ est a university or a commercial press in Malvina's Memories to no avail. When I was about to give up on further efforts to find a pub­ lisher, the Supreme Court Historical Society rescued the project. The Society devoted the entire summer 2001 issue of its jour­ nal to Malvina's Memories. Pre-publication in the Society's journal, the manuscript was carefully annotated and helpfully introduced by historian and University of Cincinnati law professor, Linda Przybyszewski, author of an engaging biography of Malvina's hus­ band, titled The Republic According to john Marshall Harlan. The His­ torical Society acquired and placed throughout the issue a number of attractive photographs. On the cover they placed the portrait of 2004] REMARKS' OF RUTH BADER GINSBURG 227

Malvina, age seventeen, and John, age twenty-three, on their wed­ ding day in 1856. To call attention to the Society's publication, I sought advice from the New York Times Supreme Court reporter Linda Green­ house. Linda is still with us this afternoon. Great to have you here, Linda, becau~e I am about to describe what a major player you were in this episode. I asked Linda if the Times might do a book review of the ~Supreme Court Historical Society journal issue de­ voted to Maltjna's Memories. Linda told me that the Times was not likely to review a periodical issue, but she said perhaps something could be done. She would think about it. And as those who heard her speak tod<:ty and regular readers of her Times reports know, she is a powerfully good thinker. In August 2001, the New York Times ran two feature stories about Malvina's Memories. On page one of a Sunday edition, the Times ran the wedding photograph and described the memoir. A follow-up story the next week included several quotations from the manuscript. Among them were memories related to the Civil War. The first 1 quotation concerned Malvina's decision to marry John, a slave-owning Kentuckian. Malvina, who lived her first seven­ teen years in Indiana, wrote: "All my kindred were strongly op­ posed to slave,ry, the peculiar institution of the South. Indeed, an uncle on my mother's side, with whom I was a great favorite, was such an out ahd out abolitionist, I think before he came to know my husband he would rather have seen me in my grave than have me marry a Southern man and go to live in the South." Although Kentucky was a slave State, it remained loyal to the Union. On John Marshall Harlan's decision to join the Union army five years after their marriage, when two children were part of the family, Malvina recalled, in a manner politically correct for that time: "That night he paced the floor until dawn. His duty to his wife and little ones and his duty to his country wrestling within him in bitter conflict.: He came to my bed and, sitting beside me, he said he would leave the matter entirely to me; that he felt his first duty was to me and his children. I asked what he would do if he had neither wife nbr children. He said at once, with great earnestness, 'I would go to the help of my country.' I knew what his spirit was and that to feel himself a shirker in the hour of his country's need would make him most unhappy. Summoning all the courage I could muster, I said, 'You must do as 228 NEW YORK CITY LAW REVIEW [Vol. 7:221

you would do if you had neither wife nor children. I could not stand between you and your duty to the country and be happy."' Decades later, in 1903, Civil War stories were still retold. Malvina wrote of a dinner party that year: "There were, perhaps, a dozen people at the table. My husband being in the best of spirits began to tell the company some of his experiences in the Civil War. He was describing a hurried march in which he and his regiment made their way through Tennessee and Kentucky in pursuit of the daring Confederate raider, John Morgan. He came to a point in his story where he and the advance guard of the pursuing Union army had nearly overtaken the rear guard of Morgan's men, who had just crossed from the opposite shore. Suddenly, Judge Lurton, a guest at the dinner, laid down his knife and fork, leaned back in his chair, his face aglow with sur­ prise and wonder, and called out to my husband in a voice of great excitement, 'Harlan, is it possible I am just finding out who it was that tried to shoot me on that never-to-be-forgotten day?' In a tone of equal surprise my husband said, 'Lurton, do you mean to tell me that you were with Morgan on that raid? Now, I know why I did not catch up with him, and I thank God I didn't hit you that day.' The whole company was thrilled by the dramatic sequel to my husband's story.... [T] here were those two men-one from Ken­ tucky, the other from Tennessee-once on opposite sides in a frat­ ricidal war, now fellow citizens of this one and united country, serving together as judges on the federal bench." Judge Lurton, at the time of the dinner party, was seated on the Court of Appeals for the Sixth Circuit. Seven years later, in 1909, he was appointed to the U.S. Supreme Court and served his first two years on the Court together with Justice Harlan. Indicating the power of the press and the good thinking of Linda Greenhouse, the New York Times coverage of Malvina's Memo­ ries garnered the attention of several publishers. Random House made the offer most attractive to Justice Harlan's heirs and the Su­ preme Court Historical Society. The Modern Library edition was in bookshops in the spring of 2002, in good time for Mother's Day that year. Malvina's memoir was well received. One reviewer com­ mented that reading it was like engaging with a fine conversational­ ist and encountering a gifted storyteller. To give you a better sense of the work, I will relate just a few further passages from the history Malvina recorded. In the Supreme Court's early 19th Century days, when the 2004] REMARKS OF RUTH BADER GINSBURG 229 great Chief Justice John Marshall led the Court-the jurist whose name John Marshall Harlan's parents, with foresight, gave their son-the Justices lived together in one boarding house or another whenever the Court was in session. They left their wives behind. By the time of John Harlan's appointment in 1877, boarding house days for Supreme Court Justices were long over, and a Supreme Court appointment meant a move to Washington, D.C. for all in the Justice's immediate family. It also meant an unpaid job for the Justice's wife. Malvina Harlan wrote of the at-home Monday receptions Su­ preme Court wives were expected to host. The callers came in numbers. Malvina reported she might receive 200 or even 300 visi­ tors at an at-home Monday reception. She recalled that these events were more fancy than plain. Tables would be spread with refreshing sal,ads for the weight watchers and rich cakes for the more indulgent. Musicians were engaged so the young people might dance a waltz or two while the older folk looked on. At-home Mondays held by wives of Justices continued until Charles Evans Hughes' Chief Justiceship in the 1930's. In 1856, ~hen the seventeen-year-old Malvina Harlan left her parents' horn~ to begin married life, her mother counseled: ''You love this man ,well enough to marry him. Remember now, that his home is your :home, his people your people, his interests your in­ terests. You must have no other." Malvina valued that advice, but she did not follow it in all re­ spects. She continued to pursue her own interests in music, and she eventually stayed abroad on her own when her husband re­ turned to the Unfred States to attend the Court's term. Of her deci­ sion to visit Italy with a few friends, she wrote: "This exhibition of independence was so new and surprising to my daughters that they called my Italian trip, 'mother's revolt."' In the mdin, however, like most women of her age and station, her ambition ~was her husband's success. She sought to be help­ mate to, and not independent from, John Marshall Harlan. She took particular pride in his nickname for her, "Old Woman." She thought it showed that he looked upon her as having the judgment and experien¢e that only years can bring. When John became a Supreme Court Justice, Malvina devel­ oped a friendship with the First Lady, Lucy Hayes, nicknamed "Lemonade Lucy" for her avid temperance. This friendship yielded the Harlans 'more than an occasional invitation to the White House. 230 NEW YORK CITY LAW REVIEW [Vol. 7:221

At White House evenings, the Supreme Court wives did not always stand solidly, or at least silently, behind their men. Malvina Harlan tells of a dinner at which ChiefJustice Wade endured some teasing by his wife, Mrs. Wade, and the First Lady, for having squelched Belva Lockwood's 1870's application to be admitted· to practice before the Supreme Court. Lockwood was persistent. She eventually gained admission to the Court's bar in 1879. She was the first woman ever to do so, but that occurred only after an Act of Congress required the Court to relent. Belva Lockwood's case, I think, is a striking illustration that the legislature is sometimes more sensitive to individual rights and the winds of change than the Court is. Malvina reported an episode, my very favorite, showing that Supreme Court wives attended to more than the social side of a Justice's life. Justice Harlan was a collector of objects connected with American history. He had retrieved for his collection from the Supreme Court Marshal's Office the inkstand that ChiefJustice Ta­ ney used when he penned the 1857 Dred Scott decision. That deci­ sion held that no person descended from a slave could ever become a United States citizen, and that the majestic Due Process Clause safeguarded one person's right to hold another human in bondage. It was a decision with which Harlan, as a Justice, strongly disagreed, an opinion overturned by the Civil War and the 14th Amendment. Chivalrous gentleman that he was, Harlan promised to deliver the Taney inkstand to a woman he met at a reception, who claimed a family relationship to Chief Justice Taney. Malvina thought the promise unwise, so she hid the inkstand away among her own spe­ cial things and Justice Harlan was obliged to report to the pur­ ported Taney relative that the item had been mislaid. In the months immediately following that incident, the Su­ preme Court heard argument in the so-called Civil Rights Cases, which yielded an 1883 judgment striking down the Civil Rights Act of 1875, an Act Congress had passed to advance equal treatment without regard to race in various public accommodations. Justice Harlan alone resolved to dissent, as he did thirteen years later in Pl.essy v. Ferguson, the 1896 decision that launched the separate-but­ equal doctrine. Harlan labored over his dissenting opinion for months, but his thoughts refused to flow easily. He seemed, Malvina wrote in her memoir, trapped in a quagmire of logic, pre­ cedent, and law. It is a trap I know very well. Malvina, as I earlier mentioned, grew up in a free state and in 2004) REMARKS OF RUTH BADER GINSBURG 231 a family strongly opposed to slavery. She very much wanted her husband to finish writing that dissent. On a Sunday morning, when the Justice was attending church services, Malvina retrieved the Ta­ ney inkstand from its hiding place, gave the object a good cleaning and polishing, and filled it with ink. Then, removing all other ink­ wells from her husband's study table, she put the historic inkstand directly before his pad of paper. When Justice Harlan came home, Malvina told him he would find a bit of inspiration on his study table. Malvina's memoir next relates: "The memory of the historic part that Taney's inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery ... in the antebellum days, seemed1 that morning, to act like magic in clarifying [her] husband's th~mghts in regard to the law that had been intended ... to protect the recently emancipated slaves from the enjoyment of civil rights. His pen fairly flew on that day and ... he soon fin­ ished his dissent." The life of Supreme Court spouses has changed greatly since Malvina Shanklin Harlan's days. Spouses do not receive at-home callers on Monday, or on any day. They pursue careers and inter­ ests of their own. Adding diversity to the group, two of them are men. Spouses are seated in a special section of the courtroom, just opposite the section for the press where Linda Greenhouse sits. And the spouses lunch together three times a year, rotating cook­ ing responsiqility. One member favored as a co-caterer is my hus­ band, super ,chef, also Georgetown University Law Center tax professor, Martin Ginsburg. The lunches are held in a ground­ floor space once designated the Ladies Dining Room, but in the 1997 term, atJustice O'Connor's suggestion, fittingly renamed the Natalie Cornell Rehnquist Dining Room. Even while she was bat­ tling what proved to be a fatal cancer, Nan Rehnquist took charge of the renov<\tion of that room. Our ChiyfJustice commented in an address at American Uni­ versity some years ago: "Change is the law of life and the judiciary will have to dhange to meet the challenges we will face in the fu­ ture." Change yields new traditions. A most positive one I think is the new tradition we are creating by the way the Justices and their partners at work and in life relate to, care about, and genuinely respect each other. I like to think Malvina Harlan, although she did not count herself what she called a "New Woman," would say: "That'sj·ust fine." i 232 NEW YORK CITY LAW REVIEW [Vol. 7:221

You have been a very good and patient audience. I thank you for your attention. [Applause] AUDIENCE MEMBER: What are one or two of the most im­ portant legal issues that you believe the United States Supreme Court faces today in the light of the new political climate in the United States without, obviously, commenting on the merits of any of them? JUSTICE GINSBURG: I would like to amend the question slightly to say: "What are the most important issues the people of the United States are facing today?" Every day the question of the balance between liberty and security is before us. I have said on that subject that people, the people of the United States, take great pride in our heritage; that we love liberty and cherish freedom; and that we have not given way to security concerns to the extent some other countries have. Will we be able to preserve that spirit given the current challenges? If the people don't care about pre­ serving their liberty and are overwhelmed by security concerns, there is no court that can change that sad development. But I am confident that it won't happen in the United States, because the people do care. The courts, you know, are reactive in­ stitutions. We don't create the controversies that come to us, we respond to the problems emerging in the society the courts exist to serve. The Supreme Court will respond to these challenges, but there must be people out there to bring them and support them. I was asked to identify two areas. Second on my list would be science and technology. Mind-boggling developments are occur­ ring. Some hold great promise for the health and longevity of all of us; some threaten our well being. How we will deal with those de­ velopments, the part courts will play in controversies stemming from those developments, I would count that as the second prime area. DEAN GLEN: Now, do we have another question? AUDIENCE MEMBER: Justice Ginsburg, could you comment about the French government's attempt to restrict the clothing and the wearing of any religious medals in the public school environ­ ment and contrast it to what our Court has said about First Amend­ ment rights and give us your observations and thoughts about what's happening in that respect? JUSTICE GINSBURG: I don't know any more than you do from reading the papers about the French situation. But as I un­ derstand the case, it is a law the President, Jacques Chirac, pro- 2004] REMARKS OF RUTH BADER GINSBURG 233 posed banning religious symbols in the public schools unless they're discreet. There is no ban on crosses or stars of David if they are not conspicuous. In the case attracting attention, the religious symbol is a head scarf that a girl sought to wear. The law would apply to skullcaps as well. The French have a tradition of rigid separation of church and state. People are citizens of France, and it doesn't matter whether you are Muslim, Jewish, or whatever, you are a citizen of France. There is an attitude that French citizenship, the French language, come first. Whether there will be some modification in the French view because of France's membership in the European Union, and the French participation in the European Convention on Human Rights, we don't know. One of the interesting things about our times, once very few countries in the world allowed courts to en­ gage in judicial review for constitutionality. But since World War II there have been many players in that league and Europe has been prominent among those players. There is, as I mentioned, the European Convention on Human Rights. The court that interprets that document sits in Strasbourg, and the European Court of Justice, which is the High Court for the European Union, sits in Luxembourg. That court also confronts human rights questions. So, Francb is not alone in dealing with this controversy. I don't know how far it will go. It may be that the French will make an accommodation on their own so the matter doesn't go to the Euro­ pean tribunal, one can't say at this point. I can only explain, to the extent I understand it, this strong tradition of French nationality as one's primary, identity. If you dress in an un-French way, that de­ tracts from the notion that we are all French. AUDIENCE MEMBER: This is a real general question, but what do you ~nd persuasive when somebody is before you during oral argumenp;? JUSTICEiGINSBURG: Not a prepared spiel, not a set lecture. I think the mo'st effective advocate is the one who is sensitive to what's on the 1Court's mind. Such an advocate takes the questions and rides with them, and then may use a question as a jumping-off place for a point the lawyer wants to make. Our court nowadays is very lively, perhaps too lively. Each side has a precious half hour, and I know how a lawyer feels when a Justice's question goes on and on and on, consuming time the law­ yer would like to have. But receptivity to questions, sensitivity to what is troubling the Court or Justice is the most important skill for 234 NEW YORK CITY LAW REVIEW [Vol. 7:221 an oral advocate. That involves quite a different skill than the one, if we compare France again, where the lawyer, at the end of the case, makes an elegant pleading before the tribunal. If you have ever seen a French lawyer's robe, it has Jong anti wide sleeves, so that when counsel gestures like this, the raised sleeve will be there to heighten the dramatic effect. We proceed differently. When a court sits in silence, you may have no idea whether or not an argu­ ment is registering with the judges. As to the written component of appellate argument, my coun­ sel would be take as your vantage point the judge who is going to decide your case. Don't slant things so that the judge knows she can't trust what you say in your brief. Don't include citations to a case that, when the judge reaches for the book on the shelf, she sees, well, it didn't say exactly that. If you are honest with the Court, you will fare better, you will attract more attention than if you try to slant things unduly in your client's favor. AUDIENCE MEMBER: What motivated and inspired you in overcoming the obstacles you encountered in law school? JUSTICE GINSBURG: I was one of the rare women Jaw stu­ dents in those not-so-good old days who genuinely liked law school. I took it as a challenge. I came home the first day of law school and said to my husband, if all of the people are as smart as the man who spoke in class today, I will never make it in this place. The man who spoke brilliantly turned out to be Anthony Lewis, a journalist then at Harvard for a year on a very prestigious fellowship. He was in my first-year civil procedure class. I made him my standard or model. I aimed to volunteer answers as intelligent as his. I think he would have won the contest, but I was not far behind. It is important to maintain your sense of humor. And, as I said when I spoke of Burnita Shelton Matthews, avoid anger, resent­ ment, or feeling sorry for yourself. Take put downs as a challenge to overcome, an opportunity to educate someone who is biased or indifferent. I retain many memories of my first year in law school. In those days, to take one vivid memory, we had classes on Saturday morn­ ing. One Saturday, I brought along a weekend guest, a friend from my husband's Army days. She attended my contracts class. It is doubtful she graduated from high school; she certainly didn't at­ tend college. My professor posed a hypothetical. He pointed to her and said: "You, you answer the question." She responded that she was not a law student. He returned: "That's all right. Any fool can answer that question." I stood up at that point and said: "Ms. So 2004] REMARKS OF RUTH BADER GINSBURG 235 and so is my guest; she is not a law student. She is here to observe the class. I will answer the question." The professor remarked that all in the class knew Mrs. Ginsburg was a killjoy. One of the most daunting challenges, there was in all of that Harvard Law School campus only one bathroom for the women students. It was downstairs in Austin Hall, dripping with peeling asbestos and very hot. When the Harvard Law School decided to admit women in 1950, that was their principal concern, how much would it cost to provide that one uncomfortable women's bath­ room? They didn't make space in the dormitories for women. Wo­ men could find a place to live in town, but they did have to have a bathroom. You know how pressured law school exams can be. Imagine you are taking an exam in Langdell Hall, some distance away from the bathroom. Nature calls and you must dash to the other build­ mg ... AUDIENCE MEMBER: Good evening, your Honor. I have a specific questjon regarding the case last year that the Court de­ cided, the Chavez v. Martinez case in which an individual was inter­ rogated by the police after he had been gravely injured. He was on the way to the hospital and he was interrogated. I was gratified to see that you dissented in that case because the majority held there was no Fifth Amendment violation. I'm curious about that balance. If you would comment on co­ ercive interrogation with respect to someone against whom later charges will 11ot be brought, and the balance between the police power versus that liberty interest. Thank you. JUSTICE GINSBURG: The Court wrote a decision specific to the Fifth Amendment protection against self-incrimination. The Court read tJ:ie Clause literally. It affords protection against co­ erced testimony. The Court said nobody was trying to extract testi­ mony for use at trial against Chavez. They didn't charge him with any crime. So the Fifth Amendment was never violated. It is vio­ lated, the Court held, only when testimony is introduced in court. I suggested that the Fifth Amendment reflected a larger con­ cern, and I hope someday a majority will see it that way. I took my lead from a former dean of the Harvard Law School, Dean Erwin Griswold. In the 1950s, when the country was in the throws of a Red Scare, when people were finding communists in every closet, Dean Griswol9. stood up for the Fifth Amendment. He spoke at the City Bar AssoCiation. He presented a great series of lectures. The 236 NEW YORK CITY LAW REVIEW [Vol. 7:221 tone he set in those lectures about the importance of the Fifth Amendment motivated the dissent I wrote in the Chavez case. To take the other side, the view that some of my colleagues took, there was nothing wrong with interrogating this man. He had been shot in an altercation with the police. He was blinded, wounded painfully in his gut, and his legs were paralyzed. The of­ ficer got into the ambulance with him, and started asking questions. The officer's version: "I was polite, I was trying to get a dying declaration. There had been a shooting, and I needed to have the evidence, and this man might not be around to supply the evi­ dence." So some of my colleagues saw the episode as nothing more than a good-faith attempt to get a dying declaration. AUDIENCE MEMBER: Justice Ginsburg, you have partici­ pated in a lot of really important and ground-breaking opinions and dissents. Do you have a favorite or one that you are most proud of? JUSTICE GINSBURG: That question is like asking a grand­ mother which grandchild is her favorite. I can say that the Virginia Military Institute case was very satis­ fying because I regard it - [Applause] JUSTICE GINSBURG: - well, it seemed to me the culmina­ tion of the litigation in which I was engaged in the 1970s. I think it is important to look at what the Court does at least as much as what the Court says. I have never been enamored of three­ tiered or four-pronged formulas. AUDIENCE MEMBER: Do you believe that we will see a case invalidating the death penalty on the basis of the Eighth Amend­ ment in our lifetimes? JUSTICE GINSBURG: On a question like that, you are as com­ petent to judge as I am. But I would like to underscore what I said earlier. If people don't care, it won't happen. If people do care, and there are many lawyers who do, I hope their ranks will grow, change will become possible. I had a very uplifting experience just yesterday. There was a case a while ago, a death penalty case. It wasn't a major case at all. It involved a man who committed a dreadful murder at age eight­ een. The sentencingjury returned a death verdict. The defendant complained that the jurors were never informed that if they re­ turned a life sentence, it would mean life without parole. The charge that the judge gave led the jurors to think that if they didn't 2004] REMARKS OF RUTH BADER GINSBURG 237 impose the death penalty, this man might someday get out of prison and be a risk to public safety. Defense counsel argued that for the jury to make a properly informed judgment between life and death, the jurors should know that if they chose life, there would be no parole eligibility. The judge's charge had left that matter completely fuzzy. We held that the jury making a life or death decision must be told what life means. The lawyer who represented that man wrote to me and re­ ported: "I thought you would like to know how Mr. Schaffer's case turned out. He was retried. (Sentencing is a separate trial in death cases. There was never any contest about his guilt.) The judge gave a very clear charge; he told the jury that a life sentence means life with no possibility of parole. The new jury came in for life." It was a beautiful letter, one I truly treasure. Defense counsel expressed his satisfaction with the result. He wanted the Justice who wrote the opinion to know about the satisfactory ending. AUDIENCE MEMBER: I was wondering what are the major factors you take into account when deciding to grant a case certiorari? JUSTICE GINSBURG: By far, the main reason for granting a petition for certiorari is what we call a "circuit split," or it could be a split among state courts. That means the law of the United States is being interpreted differently in different parts of the country. Our job is to keep the law of the United States more or less uni­ form. When there is disagreement on what the federal law is, Con­ gress can clarify the law if the meaning of a statute is in question, or the Supreme Court can give a definitive interpretation either of the Constitution or a statute. Our main job is to keep the law of the United States more or less uniform. Our law clerks, when they write memos about petitions forcer­ tiorari, will tell us the nature of the split. Is it a shallow split? Is it a deep split? A deep split has the best chance of being granted review. The Court doesn't think of itself as what people call an error­ correction instance. If it tried to serve as a super appellate court over the federal system, or even the state systems, we would be out of business. We simply couldn't manage the workload. So, we trust state systems, and the two tiers in the federal system, to do the eve­ ryday job of judging cases fairly. Ordinarily, we will step in only when the law needs clarification. AUDIENCE MEMBER: My question is: What's your opinion 238 NEW YORK CITY LAW REVIEW [Vol. 7:221 on whether language should be recognized as a protected right, particularly where individuals are losing their jobs because they don't speak English, students are dropping out of school because they're not getting a proper education? JUSTICE GINSBURG: That's ,the kind of question that not only can but has come before the Court, so I am reluctant to say anything in public. All I can say is we have a neighbor to the north that we often don't pay enough attention to, and that's Canada, a country that historically, in some parts, has been sharply divided along language lines. A deliberate effort is ongoing to make Canada a truly bilin­ gual country. The adjustment is harder for the anglophiles than for the French speakers. Any sign, any presentation from Canada now­ adays, even labels in the supermarket, everything is in both French and in English. Canada's position is: "We have two language heri­ tages, both important. We want not only the children, say, of the French speakers to know French, we want the children of English speaking parents to speak French as well. Each group should know the other's language." I think that the notion of learning the lan­ guage of your neighbor is vitally important, healthier than clinging only to your own language. DEAN GLEN: I'm sure the Canadian students here were delighted. AUDIENCE MEMBER: I was wondering, in an ideal world what you would think the-what standard of review you think should be applied to equal protection cases? And given the need for advocates to fit their equal protection arguments into the ex­ isting framework, what do you think are effective strategies for do­ ing that? JUSTICE GINSBURG: Well, as I began to say before, I'm not a great fan of the tiers, the notion that the Court deals with equal protection cases mechanically reasoning first, we must decide whether this case attracts rational basis review, intermediate scru­ tiny, or strict scrutiny. It doesn't really work that way. The labels are often rationalizations for results reached on other grounds. But there is, I think, an underlying principle in all of the Court's equal protection jurisprudence. It has been developed over the years. It certainly wasn't there full bloom at the beginning. It is the idea of essential human dignity, that we are all people entitled to respect from our Government as persons of full human stature, and must not be treated as lesser creatures. The idea of respect for the dig- 2004] REMARKS OF RUTH BADER GINSBURG 239 nity of each human is, I think, essentially what the Equal Protection Clause is about. In some places that started out in the business of judicial re­ view for constitutionality at a much later time than we did, that principle is explicitly recognized. That's true of the Supreme Court of Israel, for example. The notion of essential human dignity is the driving force behind what we place under the heading of equal protection. With hurpan dignity as the essential idea, I think we are on firmer ground than if we simply tried to plug cases into rational basis, intermediate scrutiny, and strict scrutiny cubbyholes. AUDIENCE MEMBER: Justice Ginsburg, can you comment about your faith in particular, and how it's shaped your views on life in general, and if you could share how your faith played a role, if it did, during your battle with cancer? JUSTICE GINSBURG: I am very proud of my heritage. I am not an observant Jew in the sense that I go to synagogue regularly; I don't. But if you want to know how I feel about my heritage, you can look at a comment in a recent issue of the Jewish Daily Forward. The Forward is celebrating the 350th anniversary ofJewish presence in the United States. I expressed what I thought about my Jewish heritage in a piece for that series. During niy battle with cancer, what saved me beyond anything, I will confess, is work. I was told that by my dear colleague, Sandra Day O'Connor, who had breast cancer some twenty years ago. Nine days after het surgery, she was on the bench listening to argu­ ments. She to id me that I should not miss a sitting if I could help it; that I should schedule my chemotherapy on a Friday so by Monday I would be over it. She told me to do whatever I could manage. Try to exercise as soon as you can, she counseled. If there are certain parts that won't move, then just move on to something else. Yes, then~ were distractions, as Dean Glen knows, annoyances that I had to get over because I had an opinion to write or a brief to fathom. ' Work, more than anything else, carried me through that year. I didn't dwell on my physical discomfort. I regarded it as a nui­ sance I had to live with. The important thing was understanding this case or making this opinion comprehensible. So, I regarded work as my savior, and a family that rallied around me. My husband was determined that I not miss the first Monday of the Term. It came just a few weeks after my surgery. I didn't believe I could do it. My son and daughter came from New 240 NEW YORK CITY LAW REVIEW [Vol. 7:221

York and Chicago to stay with us. They all helped me to make it that memorable morning. And there was something-I don't know what power to attribute it to, but the days before I was running back and forth to the bathroom constantly. I didn't see how I was going to sit on that bench for two solid hours. But, as it turned out, there were no urgent calls. I sat there listening to the arguments, just as I would any other sitting day. There was some magic or some super power that made that happen. · DEAN GLEN: I want to thank you again on behalf of everyone in this extraordinary law school community: The students, the staff, the faculty, the alumni who are here, some of the dignitaries who are here, forgive me for not announcing you, but we thought the time was best spent hearing from Justice Ginsburg. You have made this a truly memorable birthday for us and we thank you with all of our hearts. [Applause] SCRUPULOUS IN APPLYING THE LAW: JUSTICE RUTH BADER GINSBURG AND CAPITAL PUNISHMENT1

Sidney Harring* Jeffrey L. Kirchmeier**

l. INTRODUCTION Justice Ruth Bader Ginsburg's appointment to the United States Supreme Court in 1993 coincided with rising concerns about the use of the death penalty in the United States. That same year marked the publication of Sister Helen Prejean's Dead Man Walk­ ing, 2 which has been identified as the beginning of the Death Pen­ alty Moratorium Movement in the United States.3 During February 1994 of Justice Ginsburg's first term, her colleague, Justice Harry Blackmun, wrote a decision concluding that the death penalty was unconstitutional.4 In the following years, new discoveries about in­ nocent defendants on death row and the adoption of death penalty moratoriums put the spotlight on systemic problems with capital punishment in the United States.5 As she took her seat on the Supreme Court bench, Justice

* Professor of Law, City University of New York School of Law. Ph.D., University of Wisconsin, 1976; J.D., University of Wisconsin, 1972; M.S., University of Wisconsin, 1970; B.A., Macalester College, 1968. ** Professor of Law, City University of New York School of Law. JD., Case Western Reserve University School of Law, 1989; B.A., Case Western Reserve University, 1984. The authors thank Julie Graves, Carlos Medina, and Rita Verga for their research assistance. 1 The title comes from a Justice Ginsburg quote. When asked during her confir­ mation hearings how she would decide capital cases, she said she would be "scrupu­ lous in applying law on the basis of legislation and precedent." Mei-Fei Kuo & Kai Wang, When is an Innovation in Order?: Justice Ruth Bader Ginsburg and Stare Decisis, 20 U. HAw. L. REv. 835, 863 (1998) (quoting Nomination of Ruth Bader Ginsburg, to be Associate Justice of'the Supreme Court of the United States. Hearing before the Comm. on the Judiciary, U.S. Senate, 103d Cong. 51, 53 (1993) (statement of Judge Ruth Bader Gisn burg)). 2 HELEN PREJEAN, C.SJ., DEAD MAN WALKING: AN EYEWITNESS ACCOUNT OF THE DEATH PENAL1Y JN THE UNITED STATES (1993). 3 See Jeffrey L. Kirchmeier, Another Place Beyond Here: The Death Penalty Moratorium Movement in the United States, 73 U. CoLo. L. REv. 1, 22-25 (2002) (discussing the signif­ icance of the publication of Sister Helen Prejean 's book) [hereinafter Kirchmeier, Moratorium]. 4 Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Blackmun,J., dissenting from de­ nial of petition for writ of certiorari). 5 See Kirchmeier, Moratorium, supra note 3, at 39-43.

241 242 NEW YORK CITY LAW REVIEW [Vol. 7:241

Ginsburg had never before encountered the death penalty as a ju­ rist, nor had she faced the responsibility of condemning someone to death or of deciding midnight requests for stays of execution. Her only documented encounter with the death penalty came when she co-authored an amicus brief in a capital case as a volun­ teer attorney for the ACLU while a law professor at Rutgers Law School.6 One can only speculate about the impact of these respon­ sibilities on a new Supreme Court justice, especially one as com­ plex as Justice Ginsburg. While her experiences as an attorney revealed her to be a defender of individual rights with a concern for oppressed groups, 7 her record as a judge on the Court of Ap­ peals for the District of Columbia Circuit disclosed her embrace of judicial moderation.8 Justice Ginsburg has now been on the Supreme Court for more than ten years. She has faced last-minute stay of execution requests and has held the lives of the condemned in her hands. She had these experiences while new concerns about the system have been voiced in the courts and in society. Partly because of the limited number of written opinions in capital cases authored by Justice Ginsburg, the language in her opinions has not yet created a clear picture of her views as a jurist on the ultimate punishment. To a large extent, she has remained true to her approach to judg­ ing, as she explained at her confirmation hearings, to be "neither liberal nor conservative."9 She has also stayed true to her goal of following the law, despite her concerns about the application of

6 Joyce Ann Baugh et al.,justice Ruth Bader Ginsburg: A Preliminary Assessment, 26 U. ToL. L. REv. 1, 4 (1994). 7 Id. at 5. By being female and having been the victim of gender discrimination, Ginsburg should be very sensitive to the claims of the politically power­ less who may look to the courts for support. As the first Jewish justice since Abe Fortas left the bench in the early 1970s, Ginsburg's experi­ ence as a member of a religious minority might enhance this sensitivity. Id. Also, her role as an attorney in cases advocating equal protection for women led some commentators to refer to her as "the Thurgood Marshall of gender equality law." Id. at 4. 8 Id. at 7. Because of her reputation for judicial moderation through her service on the court of appeals, Ginsburg received endorsements not only from Democrats, but also from key Republican senators, particularly Robert Dole of Kansas, the Senate minority leader, and Orrin Hatch of Utah, the GO P's ranking member on the Judiciary Committee. Id. 9 Id. (quoting Excerpts from Senate Hearings on the Ginsburg Nomination, N.Y. TIMES, July 21, 1993, at C27). 2004] SCRUPULOUS IN APPLYING THE LAW 243 the death penalty and her personal support for a moratorium on executions.10 Commentators have focused on other areas where Justice Ginsburg's written opinions have had a greater impact and which reflect her specialties, including gender and equality issues. 11 How­ ever, all Supreme Court justices play an active role in capital cases, not only in the published opinions, but also in the day-to-day activi­ ties in dealing with requests for stays of execution and other mo­ tions. As a result, reflection on her limited published work in this area provides insight into how she has dealt with this explosive area of the law since first encountering the death penalty as a jurist a decade ago. This Article considers the record relating to the death penalty thatJustice Ginsburg has created thus far. Section II discusses her appointment to the United States Supreme Court and the role that the death penalty played in her confirmation process. Section III addresses sorp.e of her votes and opinions upholding death sentences. Section IV addresses her three majority opinions in capi­ tal cases to date. Section V discusses her votes and opinions against the imposition of the death penalty. Then, considering the range of her written opinions, this Article concludes that her views on the death penalty are still developing, but the cases present a tempered and thoughtft'll approach to genuine concerns about the fairness of the death penalty system in the United States.

II. JUSTICE GINSBURG'S APPOINTMENT TO THE SUPREME COURT Ruth Bader Ginsburg was a surprise appointment to the United States Supreme Court in 1993, considering the checkered context of President Clinton's "moderate" jurisprudence.12 She, along with Justice Stephen Breyer, have been described as moder­ ates and as "technojudges," highly qualified federal appellate

JO Anne Gearan, Ginsburg Backs Ending Death Penalty, AP Online, Apr. 10, 2001, available at 2001 WL 18926396. 1 I See, e.g., Samuel R. Bagenstos, Justice Ginsburg and the judicial Role in Expanding "We the People": the Disability Rights Cases, 104 CoLUM. L. REv. 49 (2004); Deborah Jones Merritt & David M. Lieberman, Ruth Bader Ginsburg's Jurisprudence of Opportunity and Equality, 104 CoLUM. L. REv. 39 (2004); Melanie K. Morris, Ruth Bader Ginsburg and Gender Equality: A Reassessment of Her Contribution, 9 CARoozo WOMEN'S LJ. l (2002). 12 President Clinton's jurisprudence is not easy to describe, but it was clearly a jurisprudence of both moderation and political expediency. He supported the death penalty as both governor of Arkansas and president of the United States. See Stephen B. Bright, The Politics of Capital Punishment: The Sacrifice of Fairness for Executions, in JAMES R. ACKER ET AL., AMERICA'S EXPERIMENT WITH CAPITAL PUNISHMENT 127-46, 130- 31 (2d ed. 2003). 244 NEW YORK CITY LAW REVIEW [Vol. 7:241 judges with long and moderate track records. 13 In an alternate view, Judge Ginsburg was a 'judicial restraint liberal,"14 a liberal judge who carefully followed precedent and avoided the 'judicial activism" that characterized the Warren Court and put "liberals" like Clinton on the political defensive since the election of 1968. 15 While Ginsburg was well known as an abortion rights activist and feminist, she was, like Clinton, a moderate on crime and criminal procedure issues. Even after sitting on the D.C. Circuit, she lacked death penalty experience at the time of her confirmation.16 De­ spite the fact that she "had made her name as the nation's leading litigator for women's equality in the 1970s[,] ... [on] the D.C. Cir­ cuit, the cautiously intelligent Ginsburg developed a record of solid conservatism on issues of criminal law." 17 Unlike many prior nominees to the United States Supreme Court, Judge Ginsburg could not avoid the woman's right to pri­ vacy constellation of issues because of her prominence in the for­ mulation of that law. She had appeared four times before the Supreme Court in women's rights cases, the first time winning a "C+" grade in Justice Blackmun's notes.18 There can be no ques­ tion that, as her "handlers" prepared her to appear before the U.S. Senate confirmation hearings, they chose to deal with her women's rights jurisprudence head-on and to vigorously defend her posi­ tions. The Clinton Administration must have calculated-cor-

13 Mark Silverstein & William Haltom, You Can't Always Get What You Want: Reflec­ tions on the Ginsburg and Breyer Nominations, 12J.L. & PoL. 459, 459-61 (1996). 14 Linda Greenhouse, The Supreme Court: A Sense ofjudicial Limits, N.Y. TIMES, July 22, 1994 at Al. 15 President Clinton was deliberately "moderate" in his judicial nominations, and pro-death penalty on both the Arkansas and national levels. His appointment of Jus­ tice Ginsburg, however, raised liberal hopes that she would become an activist judge in the Warren Court model. See Christopher E. Smith, et al., The First Term Performance ofjustice Ruth Bader Ginsburg, 78JuDICATURE 74, 74-77 (1994). 16 The District of Columbia Circuit does not include any jurisdictions with an ac­ tive death penalty because the District of Columbia does not have the death penalty. See Huco ADAM BEDAU, THE DEATH PENAL.TI' IN AMERICA 9 (1997). Similarly, Judge Breyer sat on the United States Court of Appeals for the First Circuit, a circuit with no active death penalty. Maine, Massachusetts, Rhode Island, New Hampshire and Pu­ erto Rico are covered by that circuit. See lguartua de la Rosa v. United States, 229 F.3d 80, 85 n.4 (1st Cir. 2000). Of those jurisdictions, only New Hampshire has the death penalty and that state has not had any executions in the modern death penalty era. States Without the Death Penalty, Death Penalty Information Center, 2004, available at http:/ /www.deathpenaltyinfo.org/article.php?did=l2l&scid=l l; BEDAU, supra note 16, at 9; Consequently, both judges faced the Senate confirmation hearings without any record of opinions or votes in death penalty cases. 17 EDWARD UZARUS, CLOSED CHAMilERS 513-14 (1998). 18 Linda Greenhouse, Documents Reveal the Evolution of a justice: Between Cases, Bet­ ting Pools, Kind Notes and Roe v. Wade, N.Y. TIMES, Mar. 4, 2004, at Al. 2004] SCRUPULOUS IN APPLYING THE LAW 245 rectly-that she would play very well to both women and liberals on those issues, daring conservative Republican senators to block her on these grounds. Judge Ginsburg's death penalty strategy at the confirmation hearings was clear. Since she had no record on the issue, she would decline to discuss her views on the death penalty. This strategy, also employed byjustice Kennedy and other nominees, stemmed from the view that Judicial nominees should not speculate, in advance, on how they might rule on any particular case or issue. 19 It is fun­ damental jurisprudence that each case stands on its own facts and on the particular arguments and contexts of that case only-even though any legal scholar will connect lines of cases and show how they are interrelated. Ginsburg did say that as a justice she would uphold the law, but that statement as a position on the death pen­ alty was arguably unclear because the U.S. Constitution, according to some views, prohibits the death penalty even though the current majority of the Court has found otherwise.20 The only tense moments at her confirmation hearings oc­ curred when Judge Ginsburg refused several times to answer ques­ tions about her position on the death penalty.21 Senator Grassley of Iowa raised the issue of an American Civil Liberties Union ("ACLU") amicus brief that Ginsburg had authored, along with a number of other women's rights organizations, in Coker v. Georgia,22 a 1977 Supreme Court case holding that the punishment of death was disproportionate to the crime of rape in violation of the Eighth Amendment.23 Unfortunately for Senator Grassley, the position that Ginsburg advocated was the one adopted by the majority by a seven-to-two vote, with the respected and conservative Justice Byron White writing the opinion for a plurality of the Court.24 Thus,

19 See Neil A. Lewis, Ginsburg Deflects Pressure to Talk on Death Penalty, N.Y. T1MEs,July 23, 1993, at Al. 20 See id. 21 Baugh et al., supra note 6, at 9-10. 22 433 U.S. 584 (1977); Brief of Amicus Curiae in Support of Respondent in Coker v. Georgia, 433 U.S. 584 (1977) (No. 75-5444) [hereinafter ACLU Brief), microformed on U.S. Supreme Court Records and Briefs, Fiche 9-10 (Microcard Ed.). 23 433 U.S. at 584. 24 Id. White's failure to gain a majori.ty for his opinion, even though the Court voted seven-to-two to reverse, was consistent with the complexity of the division on the Court on death penalty issues in the modern era of death penalty jurisprudence that developed after Gregg v. Georgia. 428 U.S. 153 (1976). Brennan and Marshall con­ curred, believing that the death penalty violated the Eighth Amendment, and that no proportionality analysis was necessary. Coker, 433 U.S. at 600. Justice Powell concurred with White's opinion, agreeing with his proportionality analysis on the facts of Coker-but only to the extent that the victim did not sustain serious or lasting iajury, or 246 NEW YORK CITY LAW REVIEW [Vol. 7:241 there was little political gain in attacking the substance of her argu­ ment, which has been the law of the land for almost thirty years. During the confirmation hearing, Judge Ginsburg pointed out that her argument in the Coker brief was not against the death pen­ alty per se, but for the narrower proposition that the death penalty for rape was disproportionate to the offense and therefore im­ peded the administration of justice in rape cases. 25 For example, the third argument in her amicus brief was that because the death sentence was so severe, it might induce juries to acquit, thereby defeating justice in some rape cases.26 The amicus brief h4d been so narrowly crafted and careful in its argument that it did no damage to her nomination. But, in its context, it was an anti-death penalty document. The leading role of the ACLU in the long march to abolish the death penalty in the 1960s and 1970s is well known. 27 Racism in the administration of justice, particularly in the South, was a key argument in the consti­ tutional battle over the death penalty, and in rape cases the statis­ tics about the race of capital defendants were' particularly egregious.28 Ginsburg's brief cited a wide range of social science data against the death penalty for rape.29 Yet, the brief was care­ fully constructed to avoid discussion of the general application of the death penalty in murder cases because this issue was lost the year before in Gregg v. Georgia. 30 Ginsburg's brief aimed to limit the scope of the death penalty, which was in its formative stages in post­ Gregg federal jurisprudence. The brief is also a powerful feminist document, linking the death penalty for rape with the patriarchal foundation of law as primarily protecting the male property inter­ est in women's purity.31 As a jurist on the Court of Appeals, Judge Ruth Bader Gins­ burg in 1993 was far removed from the law professor she had been in 1977 when she wrote the Coker brief. She carefully cultivated a

that the rape was committed with unusual brutality, thus leaving open the possibility that the death penalty might be appropriate in some future rape case. Id. at 601. Only Burger and Rehnquist defended the position that the death penalty was not dispro­ portionate to the crime of rape. Id. at 604. 25 ACLU Brief, supra note 22, at 9. 26 Id. at 22-31. This argument also applies to murder cases and has been so argued. See BEDAU, supra note 16, at 187. 27 See WILLIAM J. BowERS, LEGAL HOMICIDE: DEATH AS PUNISHMENT IN AMERICA, 1864-1982, at 16-17 (1984); Kirchmeier, Moratorium, supra note 3, at 12-15. 28 ACLU Brief, supra note 22, at 9-21. 29 Id. at 25-28. 30 428 U.S. 153 (1976). 31 ACLU Brief, supra note 22, at 9-21. 2004] SCRUPULOUS IN APPLYING THE LAW 247 role as a moderate judge-not an activist one-and this role se­ cured her appointment to the Supreme Court.32 On the D.C. Cir­ cuit, she voted more often with President Reagan appointee Kenneth Starr than with her liberal colleagues on the bench.33 At her Supreme Court confirmation hearing, she emphasized her commitment to judicial restraint, stating that judges were "third in line" in the Constitution, and should "secure a steady, upright and impartial ad111inistration of the laws."34 Judges change throughout their lives with respect to the death penalty, as the careers ofJustices Powell and Blackmun illustrate.35 It is impossible to know with certainty what forces moved Judge Ginsburg as a Court of Appeals judge. Perhaps she was influenced by the success of the women's rights movement, as the middle class reformist roots of the women's rights movement found a comforta­ ble home on the federal bench, now filled with respected woman judges. Judge Ginsburg's outspoken positions as a feminist branded her a liberal in the eyes of some,36 but the Republican Senators were unable to draw her out on the death penalty or other social issues. Throughout her confirmation hearings, she vigorously de­ fended her w9rk in women's rights cases, but refused to discuss her views in other areas of the law. 37 When pushed on the issue of the death penalty, she asserted that she would be "scrupulous in apply­ ing law on th~ basis of legislation and precedent."38 On August 3, 1993, the Senftte confirmed Justice Ginsburg by a vote of ninety-six to three, and 'she joined the Court for the 1993-94 term.39

32 See Baugh e~ al., supra note 6, at 4. 33 Id. 34 Id. at 8. 35 Although Justice Blackmun joined the plurality in upholding the death penalty in Gregg, at the e~d of his career on the bench he concluded that the death penalty was unconstitutional. See Callins v. Collins, 510 U.S. 1141, 1143 (1994) (Blackmun,.J., dissenting from denial of certiorari). Justice Powell had a similar conversion after he retired from the bench. See Jeffrey L. Kirchmeier, Aggravating and Mitigating Factors: The Paradox of Todays Arbitrary and Mandatory Capital Punishment Scheme, 6 WM. & MARY BILL. RTs.]. 345, 452-53 ( 1998) [hereinafter Kirchmeier, Aggravating and Mitigating Factors]. 36 See Laura Krugman Ray, justice Ginsburg and the Middle Way, 68 BROOK. L. REv. 629, 629 (2003). 37 See Baugh et al., supra note 6, at 9-10. 38 Kuo & Wang, supra note I, at 863. 39 Senate Co-r~finns Ginsburg, HOUSTON CHRONICLE, Aug. 3, 1993, at Al. 248 NEW YORK CITY LAW REVIEW [Vol. 7:241

III. JusTICE GINSBURG's VOTES AND OPINIONS To UPHOLD DEATH SENTENCES Like every Supreme Court Justice in the modern death penalty era, with the exception of Justices Brennan and Marshall, Justice Ginsburg has cast votes to uphold the death penalty in certain cases. During her time on the Court so far, however, she has never written a majority opinion to permit a capital defendant to be exe­ cuted.40 Further, she has never written a dissenting opinion to ob­ ject to the Court reversing a death sentence.41 She has, however, joined the majority in upholding executions.

A. Her Early Death Penalty Decisions as a justice As artfully as Ginsburg avoided discussion of her death penalty jurisprudence in her confirmation hearings, she could not avoid voting on death penalty cases in her every term on the Court. In her first vote on a death penalty case, on September 1, 1993, she voted for a stay of execution in fames v. Collins, 42 along with Justices Stevens and Blackmun.43 Justice Ginsburg voted for other stays of execution,44 though not for all stay requests,45 before the Court issued its first death penalty opinion with her as a Justice.46 Besides her votes on petitions for writ of certiorari and stay requests, and her one dissenting opinion,47 Justice Ginsburg joined her first majority opinion upholding a death sentence in Tuilaepa v. Cal~fornia. 48 Joining Justice Stevens, she concurred in voting to uphold the death penalty.49 Justice Ginsburg may have recalled her own brief in Coker as she faced the grisly facts of the Tuilaepa case. Bonnie Stendal, a fifty-five year-old schoolteacher from northern California was raped

40 See infra Part IV. 41 This information is based on reviewing cases from a Westlaw search of the Su­ preme Court database, conducted on April 10, 2004, using the search terms: "DIS (death w/2 penalty) & OP (ginsburg)." (Source results on file with the New York City Law Review.) 42 James v. Collins, 509 U.S. 947 (1993) (Mem.). 43 See id. 44 See, e.g., Campbellv. Wood, 511U.S.1119, 1122 (1994) (involving the issue of the constitutionality of hanging as a method of execution). Ginsburg voted to grant the stay of execution. Id. 45 See, e.g., Nethery v. Texas, 511 U.S. 1123 (1994). 46 See Tuilaepa v. California, 512 U.S. 967 (1994). 47 See Romanov. Oklahoma, 512 U.S. l, 15 (1994) (Ginsburg,]., dissenting). Romano was justice Ginsburg's first death penalty opinion as a Supreme Court justice. See infra Part V(A). 48 512 U.S. at 981. 49 Id. 2004] SCRUPuious IN APPLYING THE LAW 249 and murdered in the course of a burglary in Long Beach.50 At issue was California's death penalty statute, rewritten with a list of aggra­ vating and mitigating circumstances to conform to the require­ ments of moqern death penalty statutes, as set out in Gregg. 51 Tuilaepa ~hallenged the application of four of the aggravating factors as they applied to him, arguing that they were unconstitu­ ·tionally vague'.52 Justice Kennedy, writing for the Court, upheld the decision by methodically concluding that each of the factors was reasonable within the framework of Gregg. 53 Given the gruesome facts of the case, it was not difficult to apply the Court's standards for aggravating factors. From the standpoint of stare decisis, Gregg, which set forth the modern "aggravating factors-based" structure of 54 most death p~nalty statutes, controlled. Justice Ginsburg had a clear chance to stake out her death penalty jurisp;rudence in this case. However, Justice Harry Black­ mun alone d~ssented. 55 Justice Blackmun reasoned that each ag­ gravator had to be analyzed for clarity, objectivity, and principled guidance.56 Employing that analysis, Justice Blackmun concluded that the California statute was unconstitutionally vague because it did not provide sufficient guidance for determining whether a given factor was present, and because the factors were so broadly defined, they could be found in any case.57 Consequently, he rea­ soned, the statute created the risk of placing "an arbitrary thumb on death's side of the scale."58 While such factors as age, circum­ stances of the crime, and prior criminal activity might make sense in the abstrac't, any juror could view them in any way, "convincing jurors that ju~t about anything is aggravating."59

50 Id. at 970. 51 See id. at 975. 52 Id. 53 Id. at 976. 54 See Greggv. Georgi,a, 428 U.S. 153 (1976). The standard for a constitutional death penalty statute after Gregg v. Georgia was one that provided for "guided discretion" in the administration of the penalty-for a way to guide juries in deciding which murder­ ers should be subject to the death penalty. See Kirchmeier, Aggravating and Mitigating Factors, supra note' 35, at 353-60. The Georgia statute, approved by the Supreme Court in Gregg, was stmttured around a list of aggravating factors. Gregg, 428 U.S. at 197. While several oth:er death penalty structures exist, the formula approved in Gregg is the most common. See ROBERT M. BOHM, DEATHQUEST II: AN INTRODUCTION TO THE THEORY AND PRACTICE OF CAPITAL PUNISHMENT IN THE UNITED STATES 28-35 (2d ed. 2003). 55 Tuilaepa, 512 U.S. at 984 (Blackmun,J., dissenting). 56 Id. at 986. 57 Id. 58 Id. 5!J Id. 250 NEW YORK CITY LAW REVIEW [Vol. 7:241

In later cases, Justice Ginsburg became increasingly sensitive to due process and to procedural issues in death penalty cases. Be­ cause she did not write in Tuilaepa, we have no idea what her view of Justice Blackmun's argument was, but her vote speaks volumes. Whatever the procedural concerns, the California statute was ac­ ceptable as a death penalty statute because it met the Gregg stan­ dard, and thus she followed stare decisis in a Court that had long recognized that the death penalty was constitutional. Justice Gins­ burg refused to align herself with Justice Blackmun and instead was among the justices who would, as Justice Blackmun later put it, "tinker with the machinery of death."60 Regardless of her personal views on the death penalty, she was committed to administering the death penalty within the constitutional scheme set out in Gregg and subsequent cases. This approach led Justice Ginsburg down a difficult path that challenged her to draw the nebulous line be­ tween life and death. Yet, this route was the same course traveled by all of the sitting justices of the Court: Justices Stevens and Souter also joined the opinion in Tuilaepa in upholding the death penalty.

B. justice Ginsburg's Other Votes and opinions Upholding the Death Penalty To date, Justice Ginsburg has not written a majority opinion upholding a death sentence.61 One of Justice Ginsburg's first writ­ ten opinions upholding a death penalty came in a concurring opinion in Victor v. Nebraska, 62 where the Court addressed the due

60 Callins v. Collins, 510 U.S. 1141, 1144 (1994) (Blackmun,J., dissenting).Justice Blackmun, one of the Gregg majority, ultimately concluded that the death penalty could not be fairly applied: From this day fonvard, I no longer shall tinker with the machinery of death. For more than 20 years I have endeavored-indeed, I have strug­ gled-along with the majority of this Court, to develop procedural and substantive rules that would lend more than the mere appearance of fairness to the death penalty endeavor. Rather than to continue to cod­ dle the Court's delusion that the desired level of fairness has been achieved and the need for regulation eviscerated, I feel morally and intellectually obligated simply to concede that the death penalty experi­ ment has failed. Id. at 1145 (citation omitted). Blackmun's personal evolution on death penalty Jaw was profound: in Furman v. Georgia, he had dissented, finding no problem with Georgia's death penalty statute. 408 U.S. 238, 405 (1972) (Blackmun, J., dissenting). Yet, over time, he had become profoundly anti-death penalty in his thinking. See Linda Greenhouse, Documents Reveal an Evolution of a justice, N.Y. TIMES, Mar. 4, 2004, at Al, A22-23. 61 See infra Part III. 62 Victorv. Nebraska, 511 U.S. I (1994). The case was joined with Sandoval v. Califor­ nia in the opinion. See id. 2004] rsCRUPULOUS IN APPLYING THE LAW 251 I process issue of the meaning of the "beyond a reasonable doubt" standard of proof in criminal cases, specifically in death penalty cases.63 The majority, citing In re Winship64 for the proposition that the guilty-beyond-a-reasonable-doubt standard was constitutionally required for c,riminal convictions, held both that there was no con­ stitutional req;uirement for any particular language in defining that standard and that the instructions in the cases before the Court were adequatt65 The majority noted the difficulty of the concept and acknowledged some potential for vagueness and misunder­ standing on the part of the jury, but held that these problems did not violate the due process required by the constitution.66 Justice Gjnsburg concurred in the judgment upholding both death penalty' convictions.67 Perhaps in a nod to her long career as a teacher of tivil procedure,68 she did suggest there was a defini­ tion of "reasonable doubt" proposed by the FederalJudicial Center that was "cle~r, straightforward, and accurate" and gave clear gui­ dance to jurots.69 After endorsing the proposed definition, she also noted that the Supreme Court had no supervisory power over state courts and that the test was not whether the instruction given at trial was "exemplary" but whether it was reasonable.70 Her concur­ rence avoided the issue of whether there was sufficient jury confu­ sion in the cases to produce an erroneous verdict.71 In Bell v. 'Cone, Justice Ginsburg joined a majority opinion writ­ ten by ChiefJustice Rehnquist that upheld a Tennessee death pen­ alty by an eight to one vote, with Justice Stevens dissenting.72 While there was an underlying habeas corpus issue regarding the recent limitations on habeas corpus relief under the Antiterrorism and Effective Death Penalty Act, the main issue in Bell concerned the effective assistance of counsel in a death penalty case under the Strickland v. Washington test. 73 The facts of Bell74 were not very dif-

63 Id. 64 397 U.S. 358 (1970). 65 511 U.S. at 5, 22-23. 66 Id. at 21. 67 Id. at 23-28. 68 See Herma Hill Kay, Celebration of the Tenth Anniversary ofJustice Ruth Bader Gins­ burg's Appointment to the Supreme Court of the United States, 104 CoL. L. REv. 1, 11-17 (2004). 69 Victor, 511 V .S. at 24. 70 Id. at 27. 71 Id. at 1, 23-28. Arguably, this early decision by Justice Ginsburg is inconsistent with her later decisions, which emphasize the importance of the role ofjuries and the fact that they must receive accurate information. See infra Part IV(B) and V(A). 72 535 U.S. 685 (2002). 73 See Strickland v. Washington, 466 U.S. 668 (1984). The Strickland test is two-pro- 252 NEW YORK CITY LAW REVIEW [Vol. 7:241

ferent from those of Strickland. 75 Cone's lawyer had presented a reasonable defense at trial: although admitting guilt to a string of vicious killings, Cone claimed insanity due to traumatic exper­ iences as a Vietnam veteran as well as drug addiction.76 Following this defense and a guilty conviction, the lawyer failed to present an effective case at the sentencing hearing.77 The Strickland test sets a very high standard for reversal of a death penalty case on the grounds of ineffective assistance of coun­ sel, and this high standard has been troubling to many legal schol­ ars.78 Justice Ginsburg joined the Rehnquist opinion, finding no constitutional violation in Cone's representation.79 Justice Stevens strongly dissented, pointing out what he saw as the clear inade­ quacy of Cone's defense.80 In sum, Justice Ginsburg's opinions and votes to uphold ex­ ecutions exist, though they are not common. Her opinions and votes in cases to reverse capital sentences or convictions provide greater insight into her capital punishmentjurisprudence.

IV. JUSTICE GINSBURG'S MAJORIIT OPINIONS ON THE DEATH PENALIT In her first eleven years on the Supreme Court, Justice Gins­ burg has written only three majority opinions in death penalty cases. It was not until the 2000-2001 term that she authored the first of her death penalty majority opinions.81 All three of her opin­ ions were written for cases in which the Court struck down the death penalty, and each of the majority opinions garnered a seven-

nged, requiring first that the lawyer's conduct be reasonable in the context of the practice of other lawyers, while giving great weight to the range of professional choices lawyers must make in defense work. Id. at 690. Second, the test requires that ~\ the lawyer's deficient conduct (assuming the first prong is met) prejudice the defen­ \ dant. Id. at 691-92. \ 74 535 U.S. at 689-93. \ 75 466 U.S. at 671-72. \ 76 Bell, 535 U.S. at 712-13. ~ 77 Id. at 712-15. 78 See, e.g., Alan W. Clarke, Procedural Labyrinths and the Injustice of Death: A Critique of Death Penalty Habeas Corpus (Part One), 29 U. RicH. L. REv. 1327, 1353 ( 1995) (stat­ ing, "[a]fter Strickland, the courts will rarely, if ever, seriously review cases of substan­ dard lawyering-even in capital cases."); Gary Goodpaster, The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases, 14 N.Y.U. REv. L. Soc. CHANGE 59, 67 (1986) (stating that Strickland appears to be "designed to help review­ ing courts deal efficiently with these claims rather than seriously address the potential irtjustice problems caused by incompetent trial counsel"). 79 Bell, 535 U.S. at 687. so Id. at 707-19. SI See Shafer v. South Carolina, 532 U.S. 36 (2001). I 2004] i/SCRUPULOUS IN APPLYING THE LAW 253 two majority. As Justice Stevens once noted, a seven-two decision is "virtually unanimous" for the Court in the oft-divided area of death penalty jurisprudence.82 None of Justice Ginsburg's majority opinions were especially divisive to the justices. Shafer v. South Carolina, 83 where even the two dissenters conceded the opinion was a "logical extension"84 of a prior Court decision,85 addressed the due process rights of capital defendants at sentencing.86 In Banks v. Dretke, the opinion ad­ dressed prosecutor misconduct claims and the two dissenters only dissented in part, while noting that the point of dissent was "a very close question."87 Finally, even in Ring v. Arizona,88 which ad­ dressed the constitutionality of trial judges acting in the role of fact-finder for aggravating circumstances, the two dissenting Jus­ tices noted that they "understood" why Justice Ginsburg's opinion found it necessary to overrule a previous case, even though they would have overruled a different case.89

A. justice Ginsburg's First Majority opinion in a Capital Case: Shafer v. 'South Carolina In early 2001, during her eighth term as a Supreme CourtJus­ tice, Justice Ginsburg wrote her first capital case majority opinion in Shafer v. South Carolina.90 The issue in the case was how Simmons v. South Carolina91 applied to the facts in Shafer. 92 Simmons held that when a capital defendant's future dangerousness is at issue and the

82 O'Dell v. Netherland, 521 U.S. 151, 169 (1997) (Stevens, J., dissenting). Justice Stevens noted, "In the years following our decision in Furman v. Georgia ... unani­ mous Court opinions in capital cases have been virtually nonexistent." Id. at 169 n.2 (citations omitted). Thus, he added, a seven-two decision is almost as close as the Court gets to unanimous death penalty decisions. See id. at 169. 83 Shafer, 532 U.S. 36. 84 Id. at 55-56 (Thomas, J., dissenting). 85 In two separate dissenting opinions, Justices Scalia and Thomas each conceded that the Shafer majority decision followed logically from Simmons v. South Carolina, 512 U.S. 154 ( 1994). See Shafer, 536 U.S. at 55 (Scalia,]., dissenting); id. at 55-56 (Thomas, J., dissenting). 86 Shafer, 532 U.S. at 55. 87 Banks v. Dretke, 124 S. Ct. 1256, 1281 (2004) (Thomas, J., joined by Scalia, J., concurring in part and dissenting in part). 88 536 U.S. 584 (2002). 89 Id. at 619 (O'Connor, J., joined by Rehnquist, CJ., dissenting). The dissenters noted the inconsistency between Apprendi v. New Jersey, 530 U.S. 466 (2000), and Wal­ ton v. Arizona, 497 U.S. 639 (1990), but the dissenters would have overruled the for­ mer instead of th'e latter. Id. 90 Shafer, 532 U.S. at 36. 91 512 U.S. 154 (1994). 92 Shafer, 532 U.S. at 39-40. 254 NEW YORK CITY LAW REVIEW [Vol. 7:241 only sentencing alternative to death available to the jury is life im­ prisonment without possibility of parole, due process entitles the jury to be informed of the defendant's parole ineligibility, either in arguments by counsel or in a jury instruction.93 Justice Ginsburg had joined the plurality in Simmons, and she also had joined in a 1997 dissenting opinion by Justice Stevens that stressed the impor­ tance of the Simmons rule.94 In Shafer, Justice Ginsburg focused on the issue of what op­ tions were available to the jury. She concluded that once the jury found an aggravating factor, its only options were death or life without parole, even though it would have been possible for the defendant to receive a sentence less than life without parole had the jury not found any aggravating factors.95 Here, if future danger­ ousness were raised, the jury instructions were insufficient because the jurors had been instructed not only that "'life imprisonment means until death of the offender' but also that '[p] arole eligibility or ineligibility is not for your consideration.' "96 Thus, the South Carolina Supreme Court misinterpreted Simmons by holding that the case did not apply to the sentencing scheme in Shafer. 97 After concluding that Simmons applied to this sentencing scheme, Justice Ginsburg found that the case needed to be re­ manded to determine whether the Simmons instruction should have been given.98 The Simmons instruction needed only to have been given if future dangerousness had been raised at sentenc­ ing.99 In Shafer, unlike in Simmons, the prosecutor did not specifi­ cally argue for, and the jury did not find, the aggravating factor of "future dangerousness" during the sentencing proceedings.100

93 Simmons, 512 U.S. at 171. 9 4 See O'Dell v. Nether/,and, 521 U.S. 151, 169 (1997) (Stevens, J., dissenting). The majority in O'Dell held that Simmons created a "new rule" for Teague v. Lane purposes and therefore it did not apply to the petitioner. Id. at 166; See also Teague v. Lane 489 U.S. 288 (1989). The dissenting opinion, joined by Justice Ginsburg, however, rea­ soned that the rule created by Simmons was too important to fundamental principles not to have retroactive effect: Even if the rule in Simmons could properly be viewed as a "new" rule, it is of such importance to the accuracy and fairness of a capital sentenc­ ing proceeding that it should be applied consistently to all prisoners whose death sentences were imposed in violation of the rule, whether they were sentenced before Simmons was decided or after. Id. at 173. See also Simmons, 512 U.S. 154. 95 Shafer, 532 U.S. at 49-51. 96 Id. at 39-40 (citation omitted). 97 Id. at 51. !JS Id. at 54-55. 99 Id. at 36. 100 Id. at 54. 2004] SCRUPULOUS IN APPLYING THE LAW 255

I However, the State introduced evidence of Shafer's criminal re- cord and aggressive conduct. 101 Justice Ginsburg remanded the case for determination of whether "future dangerousness" had been raised in the case. 102 Shafer wds an interesting, but not revolutionary, opinion, where Justice pinsburg built upon the Court's holding in Simmons, a case in whic.h Justice Ginsburg had joined the plurality. 103 In ef­ fect, Shafer did not impose new due process obligations on states, but it clarifi~d when existing rights applied. The opinion is straightforwarp and focuses on the details of the South Carolina sentencing prpcess, the facts of Shafer's sentencing, and the appli­ cation of Simmons to that process, without much discussion of the policy behind ,the due process right requiring juries to be informed of the sentern;:ing options. The sentencing process used by South Carolina in Shafer had apparently been adopted by the State to get around the njquirements of Simmons, 104 but the majority opinion was content with correcting the process and did not offer any espe­ cially harsh words for the State. One commentator has noted "the detached tone" of the Shafer

' 101 Id. at 40-41. ~Ultimately, the jury found the aggravating factor of "murder while attempting armed robbery." Id. at 45. 102 Id. at 54. ~ 103 Simmons v. South Carolina, 512 U.S. 154 (1994). This jurisprudence goes back to Justice Ginsburg'~ first year on the Court. In 1994, the same year as Tuilaepa, she joined Justices Blackmnn, Stevens and Souter in reversing the death penalty convic­ tion in Simmons v. South Carolina, a case that would later form the foundation of Jus­ tice Ginsburg's majority opinion in Shafer. Simmons, 512 U.S. 154 (1994); Shafter, 532 U.S. 36. Simmons had beaten an elderly woman to death and, in the week before his death-penalty trial~ had pleaded guilty to a number of criminal offenses. Id. at 156. As a result of these convictions, Simmons was ineligible for parole. Simmons, 512 U.S. at 156 . A t h'1s d eat h penaI 1 ty sentencmg . I1earmg, . s·1mmon 's Iawyers requeste d an instruc- . tion that he was 11ever eligible for parole under South Carolina law. Id. at 157. The prosecution opposed this instruction, which was upheld by the judge, and then ar­ gued to the jury ~mt Simmons should be executed because of his future dangerous­ ness. Id. The jud~e forbade the defense to mention his parole ineligibility. Id. Although theimain opinion was a plurality decision, the vote on the outcome was seven-to-two because Justice O'Connor wrote a concurring opinion that was joined by Chief Justice Rehnquist and Justice Kennedy. Id. at 172 (O'Connor, J., concurring). Justice Blackmun's opinion for the plurality is a bold statement ofa broad view of the due process clause: "The Due Process Clause does not allow the execution of a person on the basis of information which he had no opportunity to deny or explain." Id. at 161 (quotations omitted). For the plurality, the fundamental core of the place of the jury in death penalty sentencing was that juries get full information on the conse­ quences of their sentence. See id. 104 See Craig M. Bradley, South Carolinas Death Penalty Odyssey Continues, 38 TRIAL 68 (2002) ("After Simmons, South Carolina changed its sentencing law in an apparent effort to avoid the Supreme Court's holding."). 256 NEW YORK CITY LAW REVIEW [Vol. 7:241 opinion and the way Justice Ginsburg addressed the facts methodi­ cally without any rhetoric about the important rights being pre­ served. 105 The commentator called it a "quintessential Ginsburg opinion."106 The opinion strengthened an important right in prac­ tice, but it avoided going beyond the facts of 'the case. The following year the Supreme Court accepted and reversed another case from South Carolina in a further attempt to clarify the Simmons rule for that state. 107 In that case, Kelly v. South Caro­ lina, Justice Ginsburg again joined the majority in reversing a South Carolina death sentence on Simmons grounds. 108

B. Ring v. Arizona and the Application of Apprendi to Death Penalty Sentencing

In 2002, in Ring v. Arizona, 109 Justice Ginsburg wrote her sec­ ond majority opinion in a death penalty case, a clear opinion ap­ plying Apprendi v. New ]ersey110 to the sentencing phase of death penalty cases. Apprendi 's complex and far-reaching significance is beyond the scope of this Article. However, it essentially held that the Sixth Amendment right to a jury trial forbids using any aggra­ vating factor not found by a jury as an aggravating factor in sen­ tencing.111 In an era of complex sentencing structures that often turn on prior actions, Apprendi and Ring had a major impact on sentencing law, returning to the jury a significant part of the sen­ tencing procedure that had been taken over by judges and proba-

105 Ray, supra note 36, at 646. 106 Id. Professor Ray explained: Again, there was no mention of the irreversible consequences of a capi­ tal sentence or of the particular care that courts must exercise when supervising such momentous determinations. The defendant prevailed and the South Carolina Supreme Court was reversed, but without any lecture or scolding. The opinion was carefully constructed, clearly presented and completely unemotional; it is the quintessential Gins­ burg opinion. Id. at 646-47. 107 The Court further clarified the Simmons right and what constitutes putting "fu­ ture dangerousness" at issue during the following term in Kelly v. South Carolina, where the Court again reversed a South Carolina death sentence on Simmons grounds. 534 U.S. 246 (2002). 108 Kelly, 534 U.S. at 248. 109 536 U.S. 584 (2002). 110 530 U.S. 466 (2000). Apprendi "held that the Sixth Amendment does not permit a defendant to be expose[dl ... to a penalty exceeding the ma."Ximum he would receive if punished according to the facts reflected in the jury verdict alone." Ring, 536 U.S. at 588-89 (citing Apprendi, 530 U.S. at 483) (emphasis in original). 111 Ring, 536 U.S. at 609. 2004] 'SCRUPULOUS IN APPLYING THE LAW 257 tion offices. 11 ~ The application of Apprendi to the death penalty had been raised by some of the justices at the time Apprendi was decided, but Ring clarified the issue.113 Once Gregg began the modern era of death penalty jurisprudence, states were required to have struc­ tured death penalty regimes that included specific aggravating and mitigating factors. 114 Some of these considerations were entirely in the hands of the jury and did not violate Apprendi. But some states left these mat~ers, entirely or in part, to judges.11 5 In 1990, in Wal­ ton v. Arizona, 116 the Supreme Court upheld Arizona's death pen­ alty sentencing statute that required the trial judge, sitting alone, to determine !aggravating and mitigating factors after the jury had decided the question of guilt or innocence. Subsequently, Arizona executed twenty-two individuals who had been sentenced by judges.117 In 1994, however, Justice Ginsburg's opinion, joined by six other justices, overruled Walton and held that Arizona's sen­ tencing procedure was unconstitutional.118 In effect, Ring invali­ dated the death penalty sentences of defendants in a number of states.119 Consistent with her opinion in Shafer, 120 the Ring decision put the death perialty in the hands of informed jurors, a populist mea­ sure.121 The issue of whether a judge is better able to decide on

112 See, e.g., Jason E. Barsanti, Ring v. Arizona: The Sixth and Eighth Amendments Cot.. tide: Out of the Wreckage Emerges a Constitutional Safeguard for Capital Defendants, 31 PEPP. L. RE.v. 519, 573 (2004) ("What is apparent is that Ring has significantly influenced the sphere of American capital punishment."); Carol S. Steiker, Things Fall Apart, But the Center Holds: The Supreme Court and the Death Penalty, 77 N.Y.U. L. RE.v. 1475, 1477 (2002) ("There is no question that ... Ring will have some significant repercussions on the administr~tion of capital punishment."). 113 See, e.g., Apprendi, 530 U.S. at 498 (Scalia, J., concurring). Ring, 536 U.S. 584. 114 For a more general discussion of the history of the modern era of the death penalty, see Kirclpneier, Aggravating and Mitigating Factors, supra note 35, at 349-60. 115 "Before Ring, of the thirty-eight capital punishment states, eleven employed a sentencing procedure providing, to some degree, for judicial findings of fact in capi­ tal sentencing." Barsanti, supra note 112, at 555. Arizona, Colorado, Idaho, Montana, and Nebraska had statutes that allowed judges to do capital sentencing, and several other states had statutes that gave a significant role to judges in the sentencing pro­ cess. See Kirchmeier, Aggravating and Mitigating Factors, supra note 35, at 346 n.6. 116 497 U.S 639 (1990). 11 7 See David ~- Savage, Executions Becoming Province of the South, Report Finds, L.A. TIMES, Jan. 2, 2003, at 10. 118 497 U.S. 647. Justice O'Connor wrote in dissent, urging that Apprendi be over- ruled rather than Walton. Ring, 536 U.S. at 619 (O'Connor,]., dissenting). 119 See Steiker, supra note 112, at 1477-82. 120 Shafer v. So!flh Carolina, 532 U.S. 36 (2001). See supra Part IV(A). 121 In fact, though, Justice Breyer noted in his concurring opinion that he would have gone further than the majority opinion. Ring v. Arizona, 536 U.S. 584, 613-19 258 NEW YORK CITY LAW REVIEW [Vol. 7:241

aggravating circumstances was irrelevant injustice Ginsburg's anal­ ysis. The Court held that the Constitution's requirement of trial by jury includes the right to have the jury, in death penalty cases, de­ termine the aggravating factors that made a defendant eligible for the death penalty.122 Justice Ginsburg reasoned, "[t]he right to trial by jury guaranteed by the Sixth Amendment would be sense­ lessly diminished if it encompassed the fact-finding necessary to in­ crease a defendant's sentence by two years, but not the fact-finding necessary to put him to death. We hold that the Sixth Amendment applies to both."123 Despite the broad impact of the Ring decision, 124 as in Shafer, Justice Ginsburg emphasized that she was merely applying prior precedent to the issue before the Court. As one commentator noted, "at the level of legal doctrine, the decision [in Ring] was merely the application of a distinction-Apprendi's new formula­ tion of the difference between 'elements' of a crime and 'sentenc­ ing factors'-that had been developed over a number of years in the noncapital context."125

C. Banks v. Texas: Due Process and Prosecutorial Misconduct Banks v. Texas126 is a recent majority opinion written by Justice Ginsburg. It is also significant in that it is only her third death pen­ alty majority opinion for the Court, again in a case with a seven-to­ two vote. 127 Every death penalty case has significance beyond its borders and Banks may stand for a range of issues as the jurispru­ dence of death evolves. As in a number of her earlier opinions, the

(Breyer,]., concurring). He argued that in addition to the Sixth Amendment require­ ment that juries find aggravating factors, he would hold that the Eighth Amendment requires jury sentencing in capital cases. See id. (Breyer,]., concurring). Justice Gins­ burg noted the difference of opinion with Justice Breyer in her majority opinion in a collegial way, noting that she was, "as always, pleased to travel in Justice Breyer's com­ pany." Id. at 612. 122 Id. at 609. 123 Id. 124 Although the Ring opinion affected some current death penalty prisoners and all future cases, the Supreme Court subsequently limited the number of current death penalty prisoners it affected in Schriro v. Summerlin, 124 S. Ct. 2519 (2004). In that five­ four decision, the Court held that Ring created a "new procedural rule" and did not apply retroactively to death penalty cases already final. Id. at 2526. Justice Ginsburg, however, joined Justice Breyer's dissenting opinion that argued, "Ring's requirement that a jury, and not a judge, must apply the death sentence aggravators announces a watershed rule of criminal procedure that should be applied retroactively in habeas proceedings." Id. at 2531. 125 Steiker, supra note 112, at 1485. 12!i Banks v. Drethe, 124 S. Ct. 1256 (2004). 121 See id. f 2004] 'SCRUPULOUS IN APPLYING THE LAW 259

I· underlying is~ue is the reliability of death penalty judgments in a politically charged America. One con~. concept of the Supreme Court's death penalty juris­ prudence since Powell v. Alabama128 has been the jurisprudence of reliability. Bekinning with Powell's interpretation of "due process" in the Fourte~nth Amendment, the Court started a new jurispru­ dence of imposing the requirements of the United States Constitu­ tion on state criminal procedures that were unfair and unreliable.129 The Court found the conviction of the innocent and their sentenci'ng to long prison terms-or to death-intolerable in a civilized society and an unfortunate occurrence in American criminal law. 130 The issutr in Banks was prosecutorial misconduct. The prose­ cuting attorney knew that prosecution witnesses lied.131 In habeas corpus proceedings, Banks raised a Brady v. Maryland132 claim, ar­ guing that th~ state failed to reveal exculpatory evidence.133 The Court of Appeals for the Fifth Circuit found that Banks had not raised the issue in his state post-conviction proceedings and had not been diligent in developing the facts underlying his Brady claim.134 Therefore, the Fifth Circuit reasoned, the evidence un­ covered in the federal habeas proceeding was procedurally barred.135 Justice Ginsburg's opinion turned on a technical analysis of the scope of review permitted federal courts in habeas cases in the regime in place prior to the Antiterrorism and Effective Death Pen­ alty Act of 1996.136 The narrow issue was Banks' omission in raising

128 Powell v. Alabama, 287 U.S. 45 (1932). In the famous "Scottsboro" case, the Court held that the defendants' Fourteenth Amendment rights were violated in the Alabama state trial. Id. at 73. 129 See, e.g., WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE 553-54 (West Group 2000). 130 This role of the Supreme Court is the purpose of federalism in criminal proce­ dure jurisprudence. The states, historically, have had difficulties providing basic jus­ tice because local factors impede its administration. This is well developed jurisprudence, dating back to Powell v. Alabama, the foundation of selective incorpora­ tion doctrine in American criminal procedure. While Chief Justice Rehnquist has called for a "new federalism" and for the return of basic criminal law to the states, the , states, in turn, have a duty to provide reliable trials. See Sue Davis, Rehnquist, William Hobbs, in THE OXFORD COMPANION TO THE SurREME COURT OF THE UNITED STATES 715- 17 (Kermit Hall et al., eds. 1992). This is especially true in death penalty cases. 131 Banks, 124 S. Ct. at 1263. 132 373 U.S. 83 (1963). 133 Banks, 124 S. Ct. at 1268. 134 Id. at 1270. 135 Id. 136 Justice Ginsburg noted that because of the timing of Banks' petition, the stan- 260 NEW YORK CITY LAW REVIEW [Vol. 7:241 the State's failure to provide exculpatory evidence under Brady-­ an omission that occurred because Banks had no idea that Texas prosecutors were engaging in misconduct.137 The state of Texas wanted to engage in misconduct at trial, hide the issue on appeal, and then argue that the defendant had waived the issue because he had not raised it earlier. The case raised the question of whether the result of any crim­ inal trial can be reliable if the prosecution engages in misconduct and gets away with it as "harmless error." Justice Ginsburg weighed in decisively on this point. She concluded, inter alia, that Banks did show "cause" for the failure to raise the claim earlier, that the sup­ pressed evidence was material and resulted in prejudice to Banks, and that the elements of Brady were satisfied.138 Finally, she con­ cluded that the District Court and Court of Appeals erred in deny­ ing Banks a certificate of appealability.139 Again, Justice Ginsburg's opinion is a straightforward applica­ tion of the law without much rhetorical flourish. As one commen­ tator noted, even in cases raising issues close to Justice Ginsburg's heart, she "refrains from sweeping statements or ringing pro­ nouncements, and she does not provide her readers with a supply of readily quotable passages." 140 In Banks, she did not dwell on the conduct of the prosecutors in the case with adjectives to emphasize the outrageous conduct, but she presented the facts and reasoning in a logical, direct manner. Yet, the former law professor did take the State to task for its poor legal reasoning at oral argument before the Supreme Court, where the State argued, in effect, that '"the prosecutor can lie and conceal and the prisoner still has the burden to ... discover the evidence.' "141 In a subtle way, she chas­ tised the State by asserting that" [a] rule thus declaring 'prosecutor

v. JUSTICE GINSBURG'S OTHER OPINIONS AND VOTES TO REVERSE DEATH SENTENCES Because of the limited number of opinions by Justice Gins­ burg upholding the death penalty, her opinions supporting votes to strike down the death penalty are essential to understanding her views about the constitutional requirements of death penalty pro­ cedures. As noted above, all three of her majority opinions in death penalty cases have been in cases where the capital sentences were overturned. While she has rarely written concurring opinions in capital cases, she has written several dissenting opinions that ar­ gue for reversals of capital sentences or convictions.143

A. Speaking to a Future Age: justice Ginsburg's Dissenting Opinions Dissenting opinions serve a unique role in American jurispru­ dence. As Justice Ginsburg has noted, "Dissents speak to a future age. So that V> the dissenter's hope: that they are writing not for today, but for: tomorrow."144 On a broad scale, one commentator has called Justice Ginsburg "a moderate dissenter, willing to voice her disagreement with the majority on a regular basis and unwill­ ing to embrace consensus at any cost." 145 Most of Justice Ginsburg's writing in death penalty cases has been in dissent, with a focus on procedural fairness and in defense of a broader standard for habeas corpus review of state death pen­ alty cases. While she has made it clear-as in Cone-that she will uphold death penalty verdicts, many of her votes have placed her in the minority of the Court on death penalty issues, frequently joining Justices Souter, Breyer, and Stevens either in dissent or car­ rying one or two additional justices and reversing death penalty convictions. 146

142 Id. at 1275. 143 See, e.g., Romanov. Oklahoma, 512 U.S. 1 (1994). 144 Thomas Adcock, CUNY Law School Hosts justice Ginsburg, N.Y. LAWYER, Mar. 19, 2004, at 16. 145 Ray, supra note 36, at 655. Professor Ray further explained: [I]ikejustice Brennan, whose defense of dissent she has cited with ap­ proval, Ginsburg recognizes that the act of dissenting is not a betrayal of institutional values. Rather, it is an essential part of a Justice's role, an occasion when, in her terms, the tug of individuality properly defeats the rival tug of collegiality. Id. 14 6 See, e.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 118 (2003) (Ginsburg, J., dis- 262 NEW YORK CITY LAW REVIEW [Vol. 7:241

1. Justice Ginsburg's First Dissenting Opinion in a Capital Case

Justice Ginsburg's belief in the integrity of the jury in death penalty sentencing, illustrated by her majority opinions in Ring and Shafer, emerged from her dissent in Romanov. Oklahoma, 147 another case from her first year on the Court, which was her first writing in a death penalty case. Justices Blackmun, Stevens, and Souter joined her dissenting opinion in a five-to-four decision.148 In Romano, the jury was told in the penalty phase of the trial that the defendant had already been sentenced to death in another case. 149 While evidence of the defendant's dangerousness was in the purview of the sentencing phase, here the issue was whether or not this information reduced the jury's personal responsibility for the fate of the defendant. 150 Justice Ginsburg began her analysis in the dissenting opinion with a discussion of Caldwell v. Mississippi151 in which the Court struck down a.death sentence because the prosecutor told the jury that the jury's decision was not final because it was reviewable by an appellate court.152 Basing her reasoning upon Caldwell Justice Ginsburg wrote that the jurors' knowledge that Romano would be executed anyway, regardless of their verdict, reduced their respon­ sibility for their verdict. 153 Her opinion also emphasized one of the foundations of her capital punishment jurisprudence: The belief that a carefully structured jury system was critical to death penalty procedure, insuring reliability. 154

senting in opinion joined by JJ. Stevens, Souter, and Breyer) (reasoning that after a state-mandated entry ofa life sentence following a jury deadlock, the double jeopardy clause prevents the imposition of the death penalty at a new sentencing hearing); Gray v. Netherland, 518 U.S. 152, 171 (1996) (Ginsburg, J., dissenting in an opinion joined by JJ. Stevens, Souter, and Breyer) (reasoning that a habeas petitioner was denied the right to a full, fair, and effective opportunity to defend himself at the penalty phase and that no new rule was implicated in his habeas petition). 147 512 U.S. 1 (1994). 148 Id. at 15. 149 Id. at 15-25. 150 Id. at 3. 151 472 U.S. 320 (1985). 152 Id. at 328-33. The Court in Caldwell held that "it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." Id. at 328-29. 153 Romano, 512 U.S. at 16. 154 Id. at 15-25. 2004] SCRUPULOUS IN APPLYING THE LAW 263

2. Justice Ginsburg's Dissents from Denials of Requests for Stays of Execution. Justice Ginsburg's dissents in denials of applications for stays of execution may be seen as embodying a procedural approach. In her view, a criminal defendant can always be executed later, after the courts have carefully considered procedural remedies. For ex­ ample, in Republic of Paraguay v. Gilmore, 155 a case involving the cap­ ital trial of a Paraguayan national, the petitioner argued that he was tried, convicted and sentenced to death without notification of the Counsel of Paraguay as required by the Vienna Convention on Consular Relations. 156 Justice Ginsburg's expressed disappoint­ ment in the Court's failure to grant a stay of execution, pointing out that it was the condemned's first federal petition for a writ of habeas corpus. 157 Considering cases without opinions, significantly, Justice Gins­ burg so far has voted in the minority to grant stays of executions or deny applications to vacate stays of executions in more than 150 cases while on the Supreme Court.158 Her voice on these low-pro­ file cases illu~trates her concern about the fairness of the death penalty even in these forgotten cases without a Supreme Court opinion.159

3. Justice Ginsburg and the Writ of Habeas Corpus No discussion of death penalty jurisprudence is complete with­ out considering habeas corpus, a procedural area of the law that is intertwined with the rights of capital defendants. With roots ex­ tending back almost 800 years, the writ of habeas corpus, the "Great Writ," gives every person who is imprisoned access to the courts to force the government to legally justify his or her impris-

155 523 U.S. 371 (2000). 156 Vienna Corl'vention on Consular Relations, Apr. 24, 1963, 21 U.S.T. 77, T.I.A.S. No. 6820 (1970) '[hereinafter Vienna Convention]. 157 See Gilmore, 523 U.S. at 381. Justice Ginsburg dissented on the same grounds in a previous case raising a Vienna Convention claim. See Breard v. Greene, 523 U.S. 371, 381 (1998) (Ginsburg, J., dissenting). 158 A Westlaw search of the terms "Ginsburg /100 (stay /5 execution)" in the Su­ preme Court database reveals 193 results (last checked Oct. 24, 2004). Some of those results were from the beginning of her career, stating she did not participate in the decisions. Also, a few are early decisions where Justice Ginsburg concurred in the decision to deny' a stay of execution request. See, e.g., Guinan v. Delo, 510 U.S. 909 (1993). 159 Many of the cases simply mark her vote on the stay applications and do not have opinions by the majority or the dissent. See, e.g., Stewart v. Mata, 518 U.S. 1042 (1996). 264 NEW YORK CITY LAW REVIEW [Vol. 7:241 onment.160 Over the years, both Congress and the Court have re­ stricted habeas corpus rights and limited access to federal courts of prisoners in state custody. 161 Justice Ginsburg has read the law to be consistent with its purpose of allowing access to the federal courts by state prisoners to protect federal constitutional rights. This reading is important inasmuch as the Supreme Court has be­ come increasingly concerned with both inadequate procedural protections in state courts in death penalty cases and with the fail­ ure of state appellate courts to actively police their lower courts' death penalty trials. Justice Ginsburg's concern about the quality of justice was manifested in her dissenting opinion in Gray v. Netherland, 162 a five­ to-four case involving a petition for a writ of habeas corpus, where Justices Stevens, Souter, and Breyer again joined her opinion.163 On the facts, Gray received an unfair trial. 164 He was convicted of murder, largely on the testimony of a co-defendant who was of­ fered a deal in return for his testimony. Gray's lawyers were con­ cerned about a rumor that the prosecution would attempt to introduce evidence that Gray had bragged about two unsolved and particularly vicious murders several years before.165 At a pre-trial hearing, they raised this concern with the judge and were assured by the prosecutor that he only would introduce the testimony of a jailhouse informer about the prior crime and nothing else. 166 The defense attorney was not prepared for additional evidence about the prior crime, and had been reassured that only the jailhouse testimony would be introduced.167 Once the petitioner was convicted, the prosecution, in a sur­ prise move, revealed that it would use other evidence at sentenc­ ing, including evidence from the state medical examiner who performed two autopsies, evidence from a detective, and vivid crime scene photos, including ones of the burned body of a child.168 The defense objected to this new evidence concerning an

160 See, e.g., JAMES S. LIEBMAN & RANDY HERTZ, FEDERAL HABEAS CORPUS PRACTICE AND PROCEDURE§ 2.3 (3d ed. 2001). I61 See, e.g., Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub. L. No. 104-132, 110 Stat. 1214 (codified as amended in scattered sections on 28 U.S.C.); Rose v. Lundy, 455 U.S. 509 (1982); Wainwright v. Sykes, 433 U.S. 72 (1977). 162 518 U.S. 152, 171 (1996) (Ginsburg, J., dissenting). 163 Se-e id. 164 See id. 165 Id. at 156. 166 Id. at 157. 167 Id. at 157. ms Id. 2004] SCRUPULOUS IN APPLYING THE LAW 265 unadjudicated crime being used without notice, but the court al­ lowed the evidence at the sentencing hearing.169 Gray was given the death sentence, partly upon this evidence of additional murders of which he had not been convicted. An appeal and state habeas corpus petition were denied by the Virginia courts.170 Sub­ sequently, the United States Court of Appeals for the Fourth Cir­ cuit denied habeas corpus relief. 171 The Supreme Court held, inter alia, that the petitioner's Brady v. Maryland171claim that the prosecutor should have disclosed the evidence was 1procedurally defaulted because the defendant failed to raise the claim in state court.173 Because the petitioner did not fully litigate his due process rights in the Virginia state courts, Gray was denied relief.174 Further, the Court held that prior case law did not require the prosecutor to disclose the evidence under the Due Process Clause, 175 and for the petitioner to prevail on this due process claim, the Court would have to adopt a new rule.176 Therefore, the Court reasoned, under Teague v. Lane, 177 the petitioner could not obtain habeas relief.178 Justice Ginsburg's dissent, arguing that there was a due process violation and that no "new rule" was impli­ cated under Teagiie, is an indictment of the quality ofjustice in the case. 179 The prosecutor lied to Gray and his lawyer, a lie that was upheld by the trial judge.180 Justice Ginsburg wrote a powerful de­ fense of the need for habeas corpus as a remedy in such cases, pointing out that this situation was exactly the type of violation that the writ was designed to remedy.181 She reasoned, "[t]here is noth­ ing 'new' in a rule that capital defendants must be afforded a

169 Id. f 170 Id. at 158-60. 111 Id. ' 172 Brady v. M~ryland, 373 U.S. 83 (1963). l73 Gray, 518 TJS. at 161-62 (citing Brady, 373 U.S. 83 (1963)). 174 Id. at 161-62. 175 Id. at 168. <:(ray made two Due Process claims: (l) the Commonwealth failed to give him adequatf notice it would use the evidence; and (2) the Commonwealth mis­ led Gray about the evidence it intended to use. See id. at 162. 176 Id. at 169-70. 177 489 U.S. 288, 311 (1989). 178 Gray, 518 U.S. at 170. 179 Id. at 171 (Ginsburg, J., dissenting). 180 Id. at 157.Justice Ginsburg noted, "Gray's lawyers were undeniably caught short by the prosecutor's startling announcement, the night before the penalty phase was to begin, that he would in effect put on a 'mini-trial' of the Sorrell murders.... Thus, at the penalty trial, defense counsel were reduced nearly to the role of spectators." Id. at 184. 1s1 Id. at 180-86. 266 NEW YORK CITY LAW REVIEW [Vol. 7:241 meaningful opportunity to defend against the State's penalty phase evidence."182 Her dissent is consistent with her belief that procedural fair­ ness is critical in order for the death penalty, or criminal law gener­ ally, to be reliable.183 The fact that she had to dissent, and that her position lost, is a sad indictment of the state of death penalty law in America. While the issue was a narrow technical one-the scope of new laws restricting habeas review by federal courts-the underly­ ing substantive issue is the poor quality of state criminal justice in America, especially in death penalty cases. 184

B. justice Ginsburg's Other Votes to Reverse Death Sentences Justice Ginsburg also has joined opinions reversing death sentences where she did not write a separate opinion. For example, she joined in a six-to-three majority, reversing the death penalty in Penry v. Johnson ( "Penry II').185 John Paul Penry was convicted of rape and murder in 1979, and his first case was decided by the Supreme Court in 1989, where the Court held, inter alia, that the three special questions given to sentencing jurors to consider did not allow for full consideration of the mitigating evidence of Penry's mental impairment.186 His second appeal to the Supreme Court included the issue of whether the Texas courts had com­ plied with Penry I in the jury instructions given at Penry's second

182 Id. at 181. 183 Her concern about procedural fairness in habeas corpus cases also is illustrated by her dissenting opinion in the recent non-capital case of Pliler v. Ford, 124 S. Ct. 2441 (2004). In that case, she was concerned about the stay-and-abeyance procedure used in the case and whether the pro se petitioner was informed of the options. Id. at 2448-49 (Ginsburg, J., dissenting). 184 Not narrow and technical at all, and consistent with Justice Ginsburg's belief that procedural fairness is fundamental in death penalty jurisprudence, is her indict­ ment of the poor quality of defense lawyering in many death penalty cases. In a speech at University of the District of Columbia Law School, she said, "I have yet to see a death case, among the dozens coming to the Supreme Court on eve of execu­ tion petitions, in which the defendant was well represented at trial." Ruth Bader Gins­ burg, In Pursuit of the Public Good: Lawyers Who Care,Joseph L. Rauh Lecture (Apr. 9, 2001), available at http:/ /www.supremecourtus.gov/publicinfo/speeches/sp_04-09- 0la.html. Good lawyering is obviously a key to fair procedures. Indeed, it is careful adherence to the formal procedures of criminal law that are fundamental to the oper­ ation of the entire system of criminal justice. 185 Penry v. Johnson, 532 U.S. 782 (2001) (Penry I). 186 See Penry v. Lynaugh, 492 U.S. 302 (1989) (holding that the jury had not been properly instructed on mitigation and reversing the death sentence, but also holding that it did not violate the Eighth Amendment to execute mentally retarded defend­ ants), overruled by Atkins v. Virginia, 536 U.S. 304 (2002) (holding that it violates the Eighth Amendment to execute mentally retarded inmates). 2004] SCRUPULOUS IN APPLYING THE LAW 267 sentencing.187 Thus, the case included issues of jury responsibility not unrelated to Simmons, in that the arguments focused on whether the jury had complete and accurate information.188 The standard the Court applied to Penry's habeas petition came from the Antiterrorism and Effective Death Penalty Act of 1996. 189 A federal court can only grant an application for a writ of habeas corpus on a claim adjudicated on the merits in state court if that adjudication '"resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Fed­ eral law, as determined by the Supreme Court of the United States.'" 190 Even applying that high standard, the Court opinion, joined by Justice Ginsburg, found that the jury instructions given at Penry's second sentencing hearing did not satisfy the requirements of Penry I, 191 and the state court's conclusion that it did comply was "objectively unreasonable. "192 Penry II reasserted the importance of mitigating evidence, a theme that the Court had stressed in a long line of cases since Lock­ ett v. Ohio. 193 Mental retardation, head injuries, childhood trauma, drug and alc,ohol abuse all are very common in death penalty cases. 194 A clear message that defendants must be allowed to fully

187 Penry JI, 532 U.S. at 796-804. I88 See id. at 796. "Penry also contends that the jury instructions given at his second sentencing hearing did not comport with our holding in Penry /because they did not provide the jury with a vehicle for expressing its reasoned moral response to the miti­ gating evidence of Penry's mental retardation and childhood abuse." Id. 189 28 u.s.c. § 2254(d) (1). 190 See Pemy II, 532 U.S. at 792 (quoting 28 U.S.C. § 2254(d)(l)). 191 At Penry's second sentencing, the jury had been given a supplemental instruc­ tion about mitigation, but the Court concluded the supplemental instruction could be read in a way that did not allow the jurors to give full effect to Penry's mitigating evidence. Id. at 797-99. The Court concluded that even reading the instructions the way the State urged was, at best, confusing. Id. at 798-99. The Court stated that assum­ ing that the jurors read the instruction the way the State contended, it still "made the jury charge as a 1vhole internally contradictory, and placed law-abiding jurors in an impossible situation." Id. at 799. 192 Id. at 804. 193 Lockett v. Ohio, 438 U.S. 586, 604 (1978) (holding that a sentencer must "not be precluded from considering, as a mitigating factor, any aspect of a defendant's charac­ ter or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death.") (emphasis in original). 194 See, e.g, Am; Bar Ass'n, American Bar Association Guidelines for the Appointment of Defense Counsel in Death Penalty Cases, 31 HOFSTRA L. REv. 913, 956 (2003) (stating, "Neurological and psychiatric impairment, combined with a history of physical abuse are common among persons convicted of violent offenses on death row"); Robert M. Sanger, Comparison of the Illinois Commission Report on Capital Punishment with the Capital Punishment 5_"istem in California, 44 SANTA CLARA L. REv. 101, 142-43 (2003) (noting that "death row in California prisons is disproportionately populated by the poor, the uneducated, thos,e who had poor representation, the mentally ill, the developmen- 268 NEW YORK CITY LAW REVIEW [Vol. 7:241

present mitigating factors in a way that enables the jury to under­ stand and to act on them is essential to the defense in death pen­ alty cases. Although Justice Ginsburg merely joined Penry II, and did not write an opinion, her vote in the case is consistent with her voice on the death penalty. Penry II-like Ring, Simmons, and Shafer-is important because it reasserts the importance of the role of a fully informed jury as the basic foundation of a fair capital sentencing hearing. Thirty years after Gregg v. Georgia, the quality of state criminal procedure, even in death penalty cases, is still poor.195 Many state appellate court<; have become notoriously lax in death penalty cases as the issue has been politicized, especially in the wake of the electoral defeats ofjudges on death penalty issues. 196 As some com­ mentators have observed, death penalty law embodies a "super due process," a heightened level of procedural due process because the penalty is final. 197 In her opinions and votes in cases like Penry II, Justice Ginsburg has stood behind that ideal in the face of the abandonment of this responsibility by states and an increasingly conservative federal judiciary. rn8

tally disabled, ... [and] those who suffered child abuse themselves"); Michael A. Mello & Donna Duffy, Suspendingjustice: The Unconstitutionality of the Proposed Six-Month Time Limit on the Filing of Habeas Corpus Petitions by State Death Row Inmates, 18 N.Y.U. REv. L. Soc. CHANCE 451, 483 (1991) (citations omitted) (stating that "a substantial number of death row inmates suffer from mental illness"); Nancy Levit, Expediting Death: Repressive Tolerance and Post-Conviction Due Process jurisprudence in Capital Cases, 59 UMKC L. REv. 55, 80-81 (1990) (citations omitted) (noting that death row inmates suffer disproportionately from illiteracy, mental illness, and mental retardation). See generally DOROTHY 0rNOW LEWIS, GUILTY BY REAsoN OF INSANITY: A PSYCHIATRIST EX­ PLORES THE MINDS OF KILLERS (1998) (discussing observations about brain damage, abuse, and mental illness among the condemned). 195 See, e.g., Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the War.st Crime But for the Worst Lawyer, 103 YALE LJ. 1835 (1994);Jeffrey L. Kirchmeier, Drinks, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement, 75 NEB. L. REv. 425 ( 1996) [hereinafter Kirchmeier, Drinks, Drugs, and Drowsiness]. 196 Bright, Counsel for the Poor, supra note 195 at 127-35. 197 Margaret Jane Radin, Cruel Punishment and Respect for Persons: Super Due Process for Death, 53 S. CAL. L. REv. 1143 (1980). 198 For example, even in Banks-in which seven Supreme Courtjustices found seri­ ous prosecutorial misconduct violating due process-both the Fifth Circuit and two Supreme Court.Justices,Justices Scalia and Thomas, found no reversible error in such serious prosecutorial misconduct in a death penalty case. Banks v. Dretke, 124 S. Ct. 1256 (2004) (Thomas,]., with whom Scalia,J.,joins concurring in part and dissenting in part); see at.so Banks v. Drellw, 48 Fed. Appx. 104 (5th Cir. 2002). 2004) SCRUPULOUS IN APPLYING THE LAW 269

VI. CONCLUSION In her death penalty opinions, Justice Ginsburg has been con­ sistently "scrupulous in applying law on the basis of legislation and 19 precedent," Y as she predicted at her confirmation hearings, while also exhibiting a fundamental concern with fairness in capital cases. It is an approach that was embraced by Justice Blackmun for almost two decades of deciding capital cases, until his frustration led him to conclude that "even if the constitutional requirements of consistency and fairness are theoretically reconcilable in the context of capital punishment, it is clear that this Court is not pre­ pared to meet the challenge."200 In Justice Ginsburg's first eleven years on the Supreme Court, she has not staked out a clear position in written death penalty jurisprudence. She has written only three majority opinions, Ring, Shafer, and Bqnks, all in safe seven-to-two majorities that included many of the "moderate" or "conservative" justices. She honestly has adhered to her strict judicial philosophy, 201 but she also has joined the other Justices to engage in what Justice Blackmun called "tinker[ing]" with death.202 Thus, thirty years after Gregg, death penalty jurisprudence is arguably stuck in the same place it was at the time of F!frman: juries, using the various "structured discretion"

l99 Kuo & Wank, supra note 1, at 863 (quoting Nomination of Ruth Bader Ginsburg to be Associate Justice pf the Supreme Court of the United States: Hearing before the Comm. on the Judiciary, U.S. Senate, 103d Cong. 51, 53 (1993) (testimony of Justice Ruth Bader Ginsburg). [ 200 Callins, 510 U.S. at '1156 (Blackmun,J., dissenting). 201 At least one commentator has argued that Justice Ginsburg's legal philosophy also has been a restraining force on women's rights issues: Justice Ginsburg will not become the liberal, activist champion of wo­ men's rights on the Supreme Court thatJustice Marshall was for minor­ ity rights. Jhe reason lies not in Justice Ginsburg's lack of passion for her cause; 'she is still lecturing and writing about her "grand ideal" that one day men and women will be treated equally by the law .... Rather the reason lies in her commitment to a particular judicial philosophy that will prevent her from advocating great doctrinal changes except in small steps; even if designed to advance women's rights, her support of women sexual harassment plaintiffs will come only when Supreme Court precedent or her interpretation of legislative intent allows it. Sheila M. Smith, Comment, Justice Ruth Bader Ginsburg and Sexual Harassment Law: Will the Second Female Supreme Court Justice Become the Court's Women's Rights Champion?, 63 U. CrN. L. REv. 1893, 1945 (1995). 202 Callins v. Collins, 510 U.S. 1141, 1145 (1994) (Blackmun,J., dissenting). Simi­ larly, it has been argued that "the Supreme Court's project of constitutional regula­ tion of capital punishment since 1976 has played a role in legitimating and thus stabilizing the practice of capital punishment, primarily by generating an appearance of intensive judicial scrutiny and regulation despite its virtual absence." Steiker, supra note 112, at 1485. 270 NEW YORK CITY LAW REVIEW [Vol. 7:241

models are applying the death penalty almost as erratically as they did pre-Furman. 203 Justice Ginsburg's death penalty majority decisions are more important for what they do not say than for what they say. Al­ though she has signed onto opinions in cases where the death pen­ alty has been upheld, she has never written a majority opinion upholding the death penalty. The lack of such a written opinion may be a result of the choices of more conservative senior justices, but it gives an indication that she is perhaps more likely than sev­ eral of her colleagues to conclude that the application of the death penalty is unfair in an individual case.204 Justice Ginsburg has frequently written in dissent in death penalty cases, and joined in other dissents, often with Justices Ste­ vens, Souter, Breyer or some combination of these justices.205 None of these justices has endorsed Justice Blackmun's renuncia­ tion of the death penalty, but all have frequently voted to reverse death penalty convictions, or dissented from the Court's judgments upholding convictions. If a consistent theme emerges, it is Justice Ginsburg's view that death penalty judgments must be highly reliable and that death penalty trials must represent a reasonable level of American justice. Several of her cases taken together illustrate a faith that the most likely way to reach reliable death sentences is through juries who are given reliable information by competent defense attorneys and honest prosecutors. Justice Ginsburg has not taken a position against the death penalty per se while a justice on the Supreme Court, but consider­ ing her dissenting opinions, she, more than several other justices, has staked out the position that procedures must be fair and relia­ ble. She has followed the jurisprudence the Court developed be-

203 See, e.g., Kirchmeier, Aggravating and Mitigating Factars, supra note 35 at 360-459; Carol S. Steiker & Jordan M. Steiker, judicial Developments in Capital Punishment Law in A~rnRICA's EXPERIMENT WITH CAPITAL PUNISHMENT: REFLECTIONS ON THE PAST, PRESENT, AND FUTURE OF THE ULTIMATE PENAL SANCTION 55-83 Oames R. Acker et al. eds., 2003). 204 These cases run the gamut of death penalty and criminal justice issues; at the most basic level, death penalty cases are just extraordinary criminal cases. 205 See, e.g., Sattazahn v. Pennsylvania, 537 U.S. 101, 118 (2003) (Ginsburg, J., dis­ senting) (reasoning that after a state-mandated entry of a life sentence following a jury deadlock, the double jeopardy clause prevents the imposition of the death pen­ alty at a new sentencing hearing); Gray v. Netherland, 518 U.S. 152, 171 (1996) (Gins­ burg,]., dissenting in an opinion joined by JJ. Stevens, Souter, and Breyer) (reasoning that a habeas petitioner was denied the right to a full, fair, and effective opportunity to defend himself at the penalty phase and that no new rule was implicated in his habeas petition). 2004] SCRUPULOUS IN APPLYING THE LAW 271 tween Gregg and her arrival on the Court about the death penalty being different from other punishments,206 but she has embraced it more fiercely than have other members. Because Justice Gins­ burg arrived on the Court and faced her first death penalty deci­ sions as the United States death penalty "Moratorium Movement" was developing, 207 it is possible that revelations about the dangers of executing the innocent, combined with her background, have heightened her concern for added reliability in capital cases. The problem with this faith in reliable death sentences is that the quality of all criminal trials at the state level-and death pen­ alty trials in particular-is often poor. Even after Gregg and the Warren Court's revolution in criminal procedure, critics continue to argue that the criminal justice system does a poor job in capital cases.208 The criminal justice system is often inaccurate and arbi­ trary, and it n:}agnifies the inequality based on class and race in our society.209 Such problems are even more pronounced in capital cases.210 Still, Justice Ginsburg's careful approach toward capital cases is consistent with her feminist jurisprudence and general concern with the oppressed and powerless members of society. Historically, women have played an important role in the battle against the use of the death penalty, as well as against the use of the death pen­ alty's cousin, hnching.211 Elizabeth Cady Stanton, a leader of the women's righ~ movement in the 1800s, once wrote, "As to the gal-

206 See, e.g., Woodson v. North Carolina, 428 U.S. 280, 305 (1976) ("Because of that qualitative difference [between prison and death], there is a corresponding di!Ter­ ence in the need for reliability in the determination that death is the appropriate punishment in a specific case."). 207 See, e.g., Kirchmeier, Moratorium, supra note 3, at 20-74. 208 See generally Bright, Counsel for the Poor, supra note 195; Kirchmeier, Drinks, Drugs, and Drowsiness, supra note 195. 209 See generally David Cole, No Equal Justice: Race and Class in the American Crimi­ nal Justice System ( 1999). "The vast majority of those behind bars are poor; 40 per­ cent of state prisoners can't even read; and 67 percent of prison inmates did not have full-time employment when they were arrested. The per capita incarceration rate among blacks is seven times that among whites." Id. at 4. 210 See id. at 88-92, 132-41. The Court "has stepped in to forestall the starkest inequi­ ties [regarding inf:ompetent counsel], but its interventions have been more successful in legitimizing the gaping inequities that remain than in providing anything ap­ proaching substantive equality for the poor." Id. at 92. 211 "In the early 1900s ... [t] he Association of Southern Women for the Prevention of Lynching, directed by Jessie Daniel Ames, the Women's International League for Peace and Freedom, the Young Women's Christian Association (YWCA) and others were key participants in the anti-lynching movement." Kirchmeier, Moratorium, supra note 3, at 95-96. See MARY JANE BROWN, ERADICATING THIS Ev1L: WOMEN IN THE AMERI­ CAN ANTI-LYNCHING MOVEMENT 1892-1940 (2000). 272 NEW YORK CITY LAW REVIEW [Vol. 7:241 lows, it is the torture of my life .... Woman knows the cost of life better than man does."212 justice Ginsburg's experience as a wo­ men's rights advocate may continue to fuel a strong concern about the use of the death penalty. In many ways, modern death penalty jurisprudence, devel­ oped in the United States during the last thirty years, is still in its infancy. During this short time, the pressures of life-and-death deci­ sions and the frustration with imperfect and inconsistent proce­ dures have forced several Justices, including Justice Scalia and Justice Blackmun, to change the foundations of their death penalty jurisprudence over time.213 Since Justice Ginsburg's first term on the Court and Justice Blackmun's opinion in Callins, no justice has made a radical reas­ sessment of her or his death penalty jurisprudence. Nonetheless, some of the current Justices have exhibited a growing concern about the process.214 In July 2001, Justice Sandra Day O'Connor stated that there are "serious questions" about whether the death penalty is administered in a fair manner.215 In April of that year,

212 Women's rights advocate Elizabeth Cady Stanton wrote eloquently about the death penalty: As to the gallows, it is the torture of my life. Every sentence and every execution I hear of, is a break in the current of my life and thought for days. I make my son the victim. I am with him in the solitude of that last awful night, broken only by the sound of the hammer and the coarse jeers of men, in preparation for the dismal pageant of the coming day. I see the cold sweat of death upon his brow, and weigh the mountain of sorrow that rests upon his soul, with its sad memories of the past and the fearful forebodings of the world to come. I imagine the mortal ag­ ony, the death-struggle, and I know ten thousand mothers all over the land weep, and pray, and groan with me over every soul thus lost. Wo­ man knows the cost of life better than man does. There will be no gal­ lows, no dungeons, no needless cruelty in solitude, when mothers make the laws. Letter from Elizabeth Cady Stanton to Marvin H. Bovee (Aug. 1, 1868) in VOICES AGAINST DEATH 121, 121 (Philip English Mackey ed., 1976). 213 Despite upholding the importance of the consideration of mitigating factors in his majority opinion in Hitchcoch v. Dugger, 481 U.S. 393 (1987),Justice Scalia eventu­ ally rejected previous cases and took the position that the Eighth Amendment did not require the consideration of mitigating factors and that a mandatory death penalty would satisfy the Eighth Amendment. See Walton v. Arizona, 497 U.S. at 671-73. For a further discussion of Justice Scalia's reasoning regarding mitigating circumstances, see Stephen G. Gey, Justice Scalia's Death Penalty, 20 FLA. ST. U. L. REv. 67, 96 (1992); Kirchmeier, Aggravating and Mitigating Factors, supra note 35, at 447-51. As discussed earlier, at the end of Justice Blackmun's career, he concluded that the death penalty was unconstitutional. See Callins, 510 U.S. at 1144-45 (Blackmun, J., dissenting). 214 Additionally, several other federal and state judges have spoken out against the death penalty. See Kirchmeier, Moratorium, supra note 3, at 30-36. 215 O'Connor Questions Death Penalty, N.Y. TrMES, July 4, 2001, at A9. In a speech before the Minnesota Women Lawyers Association, Justice O'Connor stated that there 2004] SCRUPULOUS IN APPLYING THE LAW 273

Justice Ginsburg said that she would be happy if Maryland passed a moratorium <;m executions, asserting that "[p]eople who are well represented at trial do not get the death penalty."216 She also noted, "I hav~ yet to see a death case among the dozens coming to the Supr:eme Court on eve-of-execution stay applications in which the defendant was well represented at trial."217 It will be interesting to watch Just~ce Ginsburg struggle with these problems, informed by her own experiences and concern with injustice, while also try­ ing to scrupulously apply the law.

is a possibility that innocent people have been executed and that Minnesota residents "must breath a big sigh of relief every day" because the state does not have a death penalty. Id. 216 Gearan, supra note 10. In addition to the Supreme Court .Justices, several fed­ eral and state court judges have expressed similar concerns with the fairness of the death penalty. See Kirchmeier, Moratorium, supra note 3, at 31-36. 217 justice Backs Death Penalt_v Freeze, CBSNews.com, Apr. I 0, 2001, at http:/ /mvw.cbs news.com/stories/2001/04/10/deathpenalty/main284850.html (on file with the New York City Law Review. TWIN PILLARS OF JUDICIAL PHILOSOPHY: THE IMPACT OF THE GINSBURG COLLEGIALITY AND GENDER DISCRIMINATION PRINCIPLES ON HER SEPARATE OPINIONS INVOLVING GENDER DISCRIMINATION

Rebecca L. Barnhart* & Deborah Zalesne**

The role of a judge is "to persuade ... not pontificate."1 Ruth Bader Ginsburg made this statement in a Madison Lecture she gave at New York University in 1992, shortly before her appoint­ ment to the U.S. Supreme Court.2 In it she addressed the necessity for collegiality among judges and the adverse impact that separate opinion writing can have on this imperative. She contrasted the British tradition of individual judging with the continental institutional mode of judging, expressing a clear preference for the latter.3 Under the British tradition, separate and individual opinions are rendered by each judge, with each expres­ sing her or his individual convictions and perspectives.4 The conti­ nental or civil law tradition calls for more moderation and restraint. Under this tradition, typified in France and Germany, judgments are collective and any disagreement is not published.5 The U.S. Supreme Court, originally directed toward institutional opinion-making under ChiefJustice John Marshall,6 has metamor­ phosed into a system with a single institutional opinion of the Court, and with no limit on the prerogative of individual judges to express their differing views in separate opinions. 7

* J.D. candidate, 2005, City University of New York School of Law. B.A., 1992, Bryn Mawr College. ** Professor of Law, City University of New York School of Law. B.A., 1988, Wil­ liams College; J.D., 1992, University of Denver College of Law; LL.M., 1997, Temple University School of Law. The authors would like to thank Professors Jeffrey Kirchmeier and Ruthann Robson for their insightful comments and suggestions on an earlier draft. We would also like to thank Dawn Williams for her invaluable assis­ tance with research. I Ruth Bader Ginsburg, Speaking in a judicial Voice, 67 N.Y.U. L. REv. 1185, 1186 (1992) [hereinafter judicial Voice]. 2 Id. at 1185 n.l. 3 Id. at 1189.t 4 Id. 5 Id. "Cases are decided with a single, per curium opinion, generally following a uniform anonymous style." Id. 6 Id. 7 Id. at 1189-90.

275 276 NEW YORK CITY LAW REVIEW [Vol. 7:275

Justice Ginsburg's partiality for the institutional mode ofjudg­ ing stems from her belief that overindulgence in separate opinion writing threatens the collegiality of the Court, thereby damaging its reputation and diminishing the respect accorded to its decisions. She notes that "[r] ule of law virtues of consistency, predictability, clarity, and stability may be slighted when a court routinely fails to act as a collegial body."8 The resulting loss of respect engendered by the unfettered authorship of dissents, she posits, may ultimately result in the forfeiture of judicial power.9 Notably, Justice Gins­ burg's collegial approach to decision-making may be gender-based. While qualities of aggressiveness, strength, competitiveness and in­ dependence have typically been construed as masculine in nature, stereotypically feminine traits include more collegial, passive and nurturing behavior.10 According to Justice Ginsburg, the collegiality of the Court is threatened by two distinct tendencies: "too frequent resort to sepa­ rate opinions and the immoderate tone of statements diverging from the position of the Court's majority."11 In substance, Justice Ginsburg defends dissent writing when it serves to enlighten. 12 The most effective dissent, she believes, is supported by its own legal analysis-"it spells out differences without jeopardizing collegiality or public respect for and confidence in the judiciary."13 She cau­ tions that even '"the Great Dissenter,' Justice Oliver Wendell Holmes, in fact dissented less often than most of his colleagues,"14 and she subscribes to Justice Brandeis' view that "it is more impor-

s Id. at 1191. 9 Id. 10 See Deborah L. Rhode, Gender and Professional Roles, 63 FORDHAM L. REv. 39, 44 ( 1994). While Professor Rhode recognizes that these values are "traditionally associ­ ated with women," she eschews "sweeping claims about woman's essential nature," noting that "women's voice speaks in more than one register; its expression depends heavily on the social circumstances and cross-cutting affiliations of the speaker, in­ cluding not only gender but class, race, ethnicity, age, and sexual orientation." Id. 11 judicial Voice, supra note 1, at 1191. 12 Justice Ginsburg has discussed the importance of dissents in our legal system in sharpening majority opinions. She often recounts how Justice Scalia came to her chambers to show her a draft of his dissent in the United States v. Virginia case. He told her, "Ruth, you're not going to like this ... but I want you to have my dissent as early as I can give it to you so you'll have time to respond." Justice Ginsburg has said that her majority opinion was "ever so much better because of his stinging dissent." Jonathan Ringel, Ginsburg Lifts High Court Curtain on C/,erk Roles, Warning with Scalia, FULTON CouNTI' DAILY REP., Feb. 21, 2003; see also Kelly Kesner, justice Ginsburg Q & A with Students, TttE DOCKET, Vol. 12 No. 5 (March 2003). 13 judicial Voice, supra note 1, at 1196. 14 Id. at 1191 (citing Karl M. ZoBell, Division of Opinion in the Supreme Court: A History of judicial Disintegration, 44 CORNELL L.Q. 186, 202 (1959) ). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 277 tant that the applicable rule of law be settled than that it be settled right." 15 In style, she believes a dissent should be measured and moder­ ate. The tendency of gratuitous and vociferous dissents displaces the proper focus on legal issues and becomes little more than an exercise in playground bullying and name calling. Quoting Roscoe Pound, Justice Ginsburg cautions that it is "'not good for public respect for courts ... for an appellate judge to burden an opinion with intemperate denunciation [of the writer's] colleagues, violent invective, attributions of bad motives to the majority of the court, and insinuations of incompetence, negligence, prejudice, or ob­ tuseness of (judges who subscribe to the majority opinion].' "16 She agrees withJudge Collins]. Seitz, that such language "does nothing to further cordial relationships on the court."17 Potentially at odds with her philosophy on collegiality and ju­ dicial restraint is Justice Ginsburg's deep loyalty to advancing wo­ men's legal rights. As director of the ACLU Women's Rights Project from :1971 to 1980, 18 Ruth Bader Ginsburg was the leading litigator in the area of gender discrimination. She authored or coauthored f).ine briefs, 19 six of which she argued before the Su­ preme Courti20 and she participated in the writing of fifteen amici curiae briefs.T 1 Her pioneering work has made a lasting imprint on gender jurisprudence. This Article examines the inherent tension between the colle­ gial court philosophy embraced by Justice Ginsburg, and her own position on gender discrimination. This tension is likely exagger­ ated in light of the divisiveness of the Court and the frequent five­ to-four votes on the issue of gender discrimination. Within the framework of her Supreme Court dissents and concurring opin­ ions on gender discrimination, this Article explores whether Jus-

15 Id. (citing Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406 (1932) (Brandeis, ]., dissenting)). 16 Id. at 1194 (quoting Roscoe Pound, Cacoethes Dissentiendi: The Heated judicial Dis­ sent, 39 A.B.A.J. 794, 795 (1953)). 17 Id. at 1195 tquoting Collins J. Seitz, Collegiality and the Courl of Appeals, 75 JumCA­ TURE 26, 27 (1991)). 18 Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Womens Rights Project, 11 TEx.J. WOMEN & LAw 157, 158 (2002); see also Deborah L. Markowitz, In Pursuit of Equqlity: One Womans Work to Change the Law, 11 WoMEN's RT. L. REP. 73 (1989). 19 Melanie K '.Morris, Ruth Bader Ginsburg and Gender Equality: A Reassessment of Her Contribution, 9 CARDOZO WoMEN's L.J. l, 4 & n.20 (2002). 20 Carey Olney, Better Bitch Than Mouse: Ruth Bader Ginsburg, Feminism, and VMI, 9 BuFF. WoMEN's LJ. 97 n.l (2000-2001). 21 Morris, supra note 19, at 4 & n.22 (citing cases). 278 NEW YORK CITY LAW REVIEW [Vol. 7:275 tice Ginsburg has been able to maintain dual fidelity to the bulwark of collegiality, i.e., restraint in separate opinion writing, and to her gender postulate. Or, in the alternative, has Justice Ginsburg aban­ doned the possibly gender-based goal of collegiality in the highly politicized and contentious arena of gender discrimination, partic­ ularly as her colleagues have increasingly engaged in individual opinion writing? Consequently, the Article examines not only whether and when Justice Ginsburg has chosen to dissent or con­ cur, but also the style and substance of her separate opinions. Part I of the Article examines Justice Ginsburg's career as a litigator and her deep commitment to the eradication of gender discrimination. Part II considers her thirteen-year tenure as a cir­ cuit court judge for the District of Columbia and her reputation as a pragmatic, centrist judge concerned with consensus-building and collegiality. Part III completes the survey of her career with a study of her voting patterns as a Supreme Court justice in cases involving gender discrimination. Specifically, this Part explores whether her collegiality philosophy has led her to adopt a more moderate ap­ proach to gender issues, overlooking relatively minor differences with her more conservative colleagues. The Article ultimately concludes that the dual objectives of gender equality and collegiality need not be mutually exclusive. In­ deed, as evidenced by Justice Ginsburg's separate opinions, these two goals can coexist as a substantial force in advancing the law.

I. GINSBURG THE AnvocATE: REPUTATION AS GENDER DISCRIMINATION PIONEER22 Justice Ginsburg's gender and jurisprudential philosophies de­ fined her strategy as an advocate. She worked for the achievement of gender equality, not for women's rights per se. 23 While this dis-

22 Because the focus of this Article is the impact of Justice Ginsburg's gender and judicial philosophies on her Supreme Court decision-making in the area of gender discrimination, this Part is intended merely to orient the reader as to her gender philosophy. For more in-depth treatment of her gender discrimination work as an advocate, see Deborah L. Markowitz, Ruth Ginsburg: Women's Rights Advocate-Supreme Court justice, 20 VT. B. J. & L. Die. 9 (1994); Markowitz, In Pursuit, supra note 18; Campbell, supra note 18, at 157; Toni J. Ellington et al., Comment, justice Ruth Bader Ginsburg and Gender Discrimination, 20 U. HAW. L. REv. 699 (1998). 23 Joyce Ann Baugh et al., justice Ruth Bader Ginsburg: A Preliminary Assessment, 26 U. ToL. L. REv. I, 28 (1994); Morris, supra note 19, at 23; see also Ruth Bader Ginsburg, Constitutional Adjudication in the United States As a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 HOFSTRA L. REv. 263, 266 ( 1997) [hereinafter Consti­ tutional Adjudication] (noting that "[m]y major work ... was to help advance the vibrant idea of the equal stature and dignity of men and women as a matter of consti­ tutional principle"). 2004] 1WIN PILLARS OF JUDICIAL PHILOSOPHY 279 tinction may be dismissed by some as a matter of semantics, it is fundamental to her strategy as a lawyer, and to this day, it informs her decisions as a jurist. This distinction identifies Justice Ginsburg more with egalitarian feminists who advocate the complete elimi­ nation of gender-based classifications in the law, and who regard special-treatment laws as divisive precisely because they exacerbate differences and inequality between the sexes.24 Justice Ginsburg strove to demonstrate that laws differentiating on the basis of sex and whose rationale relied solely on the stereotypical roles that men and women play in society are discriminatory in violation of the Fourteenth Amendment.25 Consequently, Justice Ginsburg's strategy was often to choose male litigants harmed by statutes cre­ ated to protect women in order to educate the Supreme Court about the theory that even benign· legislation based on gender roles is unfairly and unconstitutionally discriminatory.26 Justice Ginsburg's jurisprudential philosophy had equal im­ pact on her litigation strategy. Her respect for stare decisis and her belief that it is the most dependable means by which to ground courts' decisions was the primary reason that she chose to disman­ tle discriminatory laws incrementally, in a step-by-step approach.27 She believed that the only prospect for success lay in slowly chip­ ping away at the notion that laws based on gender classifications were constitutional because they either benefited women or did not harm either sex. Undoing centuries of gender discrimination required a reorientation of the Court's thinking; overnight success would lack the solid precedential value necessary to preserve these victories.28 As discussed below, both Justice Ginsburg's equality doctrine and her conservative approach to litigating not only had impact on her work as an advocate, but also continue to inform her decision-making on the Supreme Court.29 Justice Ginsburg's first victory as a litigator for gender equality occurred even before the ACLU established the Women's Rights Project. In its seminal decision in Reed v. Reed, 30 the Supreme Court extended the Equal Protection Clause of the Fourteenth Amend­ ment to sex-based classifications for the first time.31 Reed chal-

24 See Olney, supra note 20, at 118-19. 25 Constitutional Adjudication, supra note 23, at 269-70. 26 Baugh et al., supra note 23, at 26. 27 Id. at 25. 28 Morris, supra note 19, at 4. 29 See infra Part III. 30 404 U.S. 71 (1971). 31 See Campbell, supra note 18, at 177. 280 NEW YORK CITY LAW REVIEW [Vol. 7:275 lenged an Idaho statute that appointed men over women as administrators of estates even when both parties were equally quali­ fied.32 The Reeds were separated and their son had committed sui­ cide.33 In her brief, Ginsburg asserted that the Idaho statute failed to pass even rational basis review because Ms. Reed was just as qual­ ified as her husband to administer her son's estate.34 However, she also challenged the Court to adopt strict scrutiny review for sex­ based classifications, by demonstrating that such classifications re­ lied on an immutable characteristic, often bearing no relationship to ability, as the basis for differential treatment. Such distinctions were thus a form of invidious discrimination contrary to the equal protection afforded by the Fourteenth Amendment.35 Although the Court did not apply a higher level of scrutiny to sex-based clas­ sifications, Ginsburg had planted the seed, and the Reed brief would become known as the "Grandmother Brief' because it con­ tained the legal arguments for all subsequent gender discrimina­ tion cases. 36 Frontiero v. Richardson37 was Ginsburg's next victory. Sharron Frontiero was an Air Force lieutenant who was not automatically granted housing and medical benefits for her husband even though the Air Force automatically granted the same benefits to married male personnel.38 Ginsburg pushed for the application of strict scrutiny to all sex-based classifications, but at the same time, introduced another level of scrutiny.39 Four justices embraced the application of strict scrutiny to all sex-based classifications,40 but without the majority necessary to make it law, Ginsburg moved away from strict scrutiny toward another level of heightened re­ view, which the Court later named intermediate scrutiny.41 The Supreme Court finally accepted Ginsburg's invitation to

32 Reed, 404 U.S. at 73. 33 See Campbell, supra note 18, at 169. 34 See id. at 170. 35 Id. 36 James A. Kushner, Introducing Ruth Bader Ginsburg and Predicting the Performance of a Ginsburg Court, 32 Sw. U. L. REv. 181, 183 (2003). 37 411 U.S. 677 (1973). 38 Id. at 680. 39 Campbell, supra note 18, at 188. 40 Justices Douglas, Marshall, and White signed on to Justice Brennan's opinion for the Court. Frontiero, 411 U.S. at 678. Chief Justice Burger and Justices Stewart, Powell, and Blackmun concurred in the judgment. Id. at 691 (Powell,]., concurring). 41 Olney, supra note 20, at 114; Sheila M. Smith, Justice Ruth Bader Ginsburg and Sexual Harassment Law: Will the Second Fema/,e Supreme Court justice Become the Court's Womens Rights Champion?, 63 u. GIN. L. REV. 1893, 1902 (1995). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 281 craft a new intermediate scrutiny test with Craig v. Boren. 42 Relying on earlier decisions invalidating sex-based classifications that were "an inaccurate proxy for other, more germane bases of classifica­ tion,"43 Justice Brennan struck down an Oklahoma statute prohibit­ ing the sale of beer to men under twenty-one, but not to women of the same age. The Court specifically recognized that differential treatment resting on arcane and overbroad notions of men's and women's roles is hostile to the Equal Protection Clause.44 Without going so far as to say that sex-based classifications were immediately suspect, the Court held that for a sex-based classification to survive review, there must be an important governmental interest, and the classification must be substantially related to that interest.45 Since Craig v. Boren, intermediate scrutiny has been the rubric under which the Court has evaluated gender discriminatory laws. 46 However, after joining the Supreme Court, Justice Ginsburg hinted

42 429 U.S. 1~0 (1976). 43 Id. al 198. 44 Id. In Weinberger v. Wiesenfeld, 420 U.S. 636 (1975), Justice Ginsburg also suc­ ceeded in convincing the Court that a social security statute that allowed women but not men to automatically claim survivor benefits was an impermissible sex classifica­ tion that ignored women's active role in the workforce and disqualified men solely on the basis of sex in violation of the Fifth Amendment. Michael James Confusione, jus­ tice Ruth Bader (jinsburg and Justice Thurgood Marshall: A Misleading Comparison, 26 RUTGERS L. j. 887, 891 ( 1995). 45 Craig, 429 U.S. at 197. 4G As with ma?y tests fashioned by the Supreme Court, controversy surrounds whal actually is the test for intermediate scrutiny. Much of the debate focuses on the addi­ tional "exceedingly persuasive" language, which first appeared in Pers. Adm 'r of Mass. v. Feeney, 442 U.S. 256, 273 (1979) and whichJustice O'Connor made an integral part of intermediate scrutiny in Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 (1982). However, the Justices themselves, the lower courts, and academics cannot agree as to whether "exceedingly persuasive" is simply a restatement of the traditional two-prong test or whether it is an additional requirement. See Olney, supra note 20, at 144; Mor­ ris, supra note 19 at 15-17; Ellington et al., supra note 22, at 754-55. Justice Ginsburg herself has contributed to the confusion in her landmark decision, United States v. Virginia, 518 U.S. 515 (1996) (VMJ), which held that Virginia's exclusion of women from the military school violated the equal protection guarantee of the Fourteenth Amendment. Justice Ginsburg's coining of "skeptical scrutiny" in place of intermedi­ ate scrutiny and her reliance on the phrase "exceedingly persuasive" led Justice Scalia to assert that she was attempting to ratchet intermediate scrutiny closer toward strict scrutiny, long reserved for race-based discriminatory laws. See VMI, 518 U.S. at 570-75 (Scalia, J., dissenting) (arguing ambiguous language in place of the traditional lan­ guage destabilizes current doctrine). Chief Justice Rehnquist, on the other hand, used his concurrence to insist that the Hogan standard had not changed, and tlms, intermediate scrutiny remained intact. Se.e id. at 558-59 (Rehnquist, CJ., concurring). Academics have argued whether the standard did indeed change. Se.e, e.g., Morris, supra note 19, at 17-21; Olney, supra note 20, at 139; Ellington et al., supra note 22, at 700.Justice Ginsburg's muddying of the gender discrimination jurisprudence is ironic when one considers that what often prompts her to write is the need for clari1ication. See Heather L. Stobaugh, Comment, The Aflennath of United States v. Virginia: Why Five 282 NEW YORK CITY LAW REVIEW [Vol. 7:275 that she is interested in reopening a dialogue on this subject.47 Re­ gardless of the future path of gender jurisprudence, it owes its life­ blood, at least in part, to the pioneering work of Justice Ginsburg, who challenged the Court to recognize that the legal relegation of women to secondary class status violates the letter and the spirit of the Equal Protection Clause of the Fourteenth Amendment. In a moment of perfect symmetry, Justice Ginsburg, sitting on the very Court before which she had vigorously argued that differential treatment on the basis of sex is anathema to the Constitution, was able to put her imprimatur on the majority opinion for United States v. Virgi,nia (" VMI') .48

II. GINSBURG THE JUDGE: REPUTATION AS CONSENSUS-BUILDING MODERATE When President Bill Clinton nominated Ruth Bader Ginsburg to fill Justice White's seat on the Supreme Court, she, like most nominees, was unknown outside the legal community. Ginsburg had, however, been a circuit court judge for the District of Colum­ bia for thirteen years.49 Justice White's retirement offered the first

Justices are Pulling in the Reins on the "Exceedingly Persuasive Justification, "55 SMU L. REv. 1755 (2002);Judicial Voice, supra note 1, at 1185. 47 See Harris v. Forklift Sys. Inc., 510 U.S. 17, 26 n. * (1994) (Ginsburg, J., concur­ ring) (illustrating that Justice Ginsburg has not entirely abandoned the goal of mov­ ing the Court toward a recognition of sex-based classifications as inherently suspect). 48 518 U.S. 515 (1996). Wliiwas a landmark case challenging single-sex military education. Id. at 519. Applying intermediate scrutiny, the Court refused to credit the State's first justification-diversity of educational opportunities-for maintaining VMI as a single-sex institution. Id. at 539.Justice Ginsburg highlighted Virginia's his­ tory of refusing to admit women to male academic institutions for much longer than many other states, to demonstrate that this stated goal's origin was not long-standing, but rather in response to Mississippi v. Hogan, 458 U.S. 718 (1982). Id. at 537-39. The Court also rejected the State's second justification for excluding women: their need for a cooperative learning atmosphere, rather than VMI's adversarial method of train­ ing. Id. at 540-42. The State's goal of preserving the kind and caliber of training was not furthered by the outright exclusion of women and thus the exclusion of women, which relied on generalizations concerning women's interests and abilities, failed in­ termediate scrutiny. Id. at 540-46. The Court then turned to Virginia's "separate but equal" solution of a parallel program for women. Id. at 526. It held that the Virginia Women's Military Institute for Leadership did not meet the equal protection stan­ dards because the female facility was not substantially equal to VMI. Id. at 555. Justice Ginsburg proposed that "' [i] nherent differences' between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity." Id. at 533. She explained further that "generalizations about 'the way women are,' esti­ mates of what is appropriate for most women, no longer justify denying opportunity to women whose talent and capacity place them outside the average description." Id. at 517. 49 President Clinton formally announced justice Ginsburg's nomination June 14, 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 283 opportunity for a Democrat president to nominate a Supreme Courtjustice since Lyndon Johnson had appointed Thurgood Mar­ shall.50 With the conservative White's retirement, legal experts pre­ dicted that a more liberal justice could provide a crucial swing vote on issues ranging from abortion to the death penalty to job discrimination. 51 In announcing Ginsburg's nomination to the Supreme Court, President Clinton highlighted her roles as an attorney and a judge, describing her both as a women's rights pioneer, and as a consen­ sus-building moderate,52 which he saw as an asset for the fractious Court.53 Thus, the gendered dichotomy was immediately set in place between the zealous advocate of women's rights and the fem­ inine conciliator with a dependable track record on the D.C. Cir­ cuit. The press ran with it, either confirming or attacking these labels. The flurry of newspaper articles on then-Circuit Judge Gins­ burg immediately following her nomination uniformly labeled her moderate or centrist in stark contrast to her career as a women's rights advocate.54 The media characterized her simultaneously as a "pioneer" and a "centrist,"55 "trailblazing lawyer" and "non-ideolog­ ical,"56 "innovative" and "pragmatic,"57 and a "pioneer" and a "dis­ passionate judge."58

1993 in the Rose Carden of the White House, following a lengthy search lasting nearly three months. Ruth Marcus, judge Ruth Bader Ginsburg Named to High Court: Clinton's Unexpected Choice ls Women's Rights Pioneer, WASH. PosT, June 15, 1993, at Al. Justice Ginsburg was appointed appellate judge to the D.C. Circuit by President Jimmy Carter in 1980. Jill Abramson, Ruth Bader Ginsburg Long Has Spent Her Career Overcoming the Odds, WALL ST. J., June 15, 1993, at AS. 50 Marcus, supra note 49. 5l Paul M. Barrett, Ruth Ginsburg: The Swing Vote of the Future?, WALL ST.j.,June 30, 1993, at Bl. 52 Joan Biskupic,Judge Ruth GinsbU1g Named to High Court; Nominee's Phiwsophy Seen Strengthening the Center, WASH. PosT,June 15, 1993, at Al. 53 Marcus, supra note 49. 54 See, e.g., Stefan Fatsis, Ginsburg's Record Shows Will to Examine Both Sides, THE JOUR­ NAL RECORD, June 17, 1993, available at 1993 WL 9728306 (characterizing her as a trailblazing women's rights lawyer with a non ideological bent); Abramson, supra note 49 (IabelingJustice Ginsburg as the "godmother of legal feminism" while also calling her "moderate"), She has been described alternatively as "cautious technician," Na­ than Lewin, Top !court Needs a Mavericll, CHI. DAILY L. BuLL., July 27, 1993, al 5, and "careful, nondogmatic, pragmatic, consensus builder, methodical, and attentive to precedent." John' Flynn Rooney, Ginsburg Lauded For Her Demeanor, lnteUect, CHI. DAILY L. BuLL., June 15, 1993, at l. 55 Marcus, supra note 49. 5G Fatsis, supra note 54. 57 Biskupic, supra note 52. 58 Paul M. Bahett,Justices' Shifting Views Mark 1992-93 High-Court Term, WALL ST.j., June 30, 1993, a( Bl. 284 NEW YORK CITY LAW REVIEW [Vol. 7:275

Most journalists failed, however, to notice the similarities be­ tween Ginsburg the lawyer and Ginsburg the jurist, choosing in­ stead to accept that pioneer lawyer and centrist judge were mutually exclusive.59 The pioneer lawyer had always worked under the radar and chosen mundane cases to push forward gender equality law. According to one commentator, while Ginsburg's the­ ory was radical, her approach was conservative and incremental with cases carefully chosen to show irrational disparate treatment of women solely on the basis of gender.60 Thus, moderation and caution were her trademarks long before she joined the bench.61 Personal descriptions revealed, not surprisingly, an individual of contradictions.62 Although she was labeled a swing vote on the D.C. Circuit, Professor Alan Dershowitz, in one of the most inter­ esting and germane assessments in light of Justice Ginsburg's own collegiality philosophy, believed she would prove to be anything

59 One exception to the superficial coverage was Steven Roberts et al., Two Lives of Ruth Bader Ginsburg: Crusader in the '70s; Centrist judge After That, U.S. NEWS & WORLD REP., June 28, 1993, at 26, 28, availaMe at 1993 WL 6871318. This article took note of Justice Ginsburg's conservative legal strategy as a pioneer lawyer. Despite the authors' more nuanced analysis, the title of the article demonstrates that they, too, saw a sea change from crusader to conservative jurist. Id. 60 Id. 61 Moderation has been a consistent trait of Justice Ginsburg and is one of her guiding principles concerning a judge's role and the importance of collegiality. Nev­ ertheless, the mainstream media sought to categorize her moderation in judicial deci­ sion-making through political labels, such as conservative versus liberal, thus relying on political ideologies, rather than judicial philosophies, to explain her judicial deci­ sions or perceived position on social issues. See, e.g., Biskupic, supra note 52; Marcus, supra note 49; Cal Thomas, In Ginsburg, Her Nomination "Is About as Good as We'll Get," ORLANDO SENTINEL, June 17, 1993, at Al5, availabk at 1993 WL 5794453; Pilita Clark, Woman Is U.S. Court Pick, THE AGE, June 16, 1993, at 9, available at 1993 WL 12365274. These labels make little sense, however, as applied to Justice Ginsburg, who refuses to prejudge a case based on her own belief system, even though she is a self-confessed feminist. See Ruth Bader Ginsburg, New York Law School Law Review Dinner February 12, 1999, Remarks, 44 N.Y.L. SCH. L. REv. 7, 8 (2000). For Justice Ginsburg's own descrip­ tion of her judging style during her Supreme Court confirmation hearings, see Lewin, supra note 54 (quoting Justice Ginsburg that "'[j]ustice is not to be taken by storm. She is to be wooed by slow advances.'"); Olney, supra note 20, at 131-33 (relating Justice Ginsburg's plea to be ·~udged as a judge, not an advocate"); Baugh et al., supra note 23, at 7-10 (relatingjustice Ginsburg's comment in her opening statement to the Committee at her confirmation hearing that her approach to judging is neither con­ servative nor liberal, rather she is committed to judicial restraint). 62 For articles discussing Ruth Bader Ginsburg the person, see generally Margaret Carlson, The Law According to Ruth, TIME, June 28, 1993, at 38, 40 (pointing out her "natural reserve" and "shyness"); Guy Gugliotta & Eleanor Randolph, A Mentor, Rok Model and Heroine of Feminist Lawyers, WASHINGTON PosT,June 15, 1993, at Al 4 (noting that "[s]he cares ... about the real world and the effect her rulings will have," and describing her as "totally disarming," and a "stickler for details"); Biskupic, supra note 52 (describing her as "plain vanilla" and "remote"); Roberts et al., supra note 59 (describing her as "picky," "demanding," "sarcastic," "intimidating," and "a loner"). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 285 but a consensus-builder.63 In fact, Professor Dershowitz took a veiled swipe at her for her friendship and admiration for Justice Scalia.64 However, Justice Ginsburg's professional and personal as­ sociation with Justice Scalia,65 an unabashed conservative, arguably undermines Professor Dershowitz and other detractors' argument that she is immoderate and prickly. For his part, Justice Scalia re­ portedly said: he would choose Justice Ginsburg as his companion on a desert island.66 The spectrum of support and respect for Jus­ tice Ginsburg ran the gamut from Robert Bork, another former colleague and arch-conservative, describing her as "thoughtful" and "careful,"67 to the then-president of the Center for Reproduc­ tive Law and Policy in New York, analogizing Justice Ginsburg's work in gender equality law to Thurgood Marshall's race equality work.68 Justice Ginsburg's wide-ranging friendships seemed to con­ firm a colle~al attitude and ability to separate ideology from the person. Moreover, garnering the respect of such a disparate group within the legal field is testimony to an eclectic and open mind in keeping with Justice Ginsburg's philosophy of collegiality.

III. GINSBURG THE SUPREME COURT JUSTICE: FIDELITI' TO BOTH HER GENDER POSTULATE AND I HER COLLEGIALilY PRINCIPLE

In consitlering Justice Ginsburg's voting patterns on the Su­ preme Court in cases involving gender discrimination and the ex­ tent to which they have been influenced by a desire to avoid writing separate opinions, Part III of this Article examines not only what prompts her to write separately, but also the form and sub­ stance of her writing. Given her commitment to collegiality, and thus carefully circumscribed use of separate opinion writing, this Part addresses the question of whether her collegiality philosophy has given way to her commitment to gender equality in the law.

63 Alan Dershowitz, Choice of Ginsburg Raises Many Questions, BuFF. NEWS, June 17, 1993, at B3, available at 1993 WL 6097164 (citing Justice Ginsburg's colleagues who described her as difficult and alienating). 64 Id. (stating "she has been compared to Justice Scalia, whom she admires and likes"). 65 Justices Ginsburg and Scalia served together on the D.C. Circuit. Gugliotta & Randolph, supra note 62, at Al4. 66 Carlson, supra note 62, at 40. 67 Abramson, supra note 49, at AS. 68 Id. 286 NEW YORK CITY LAW REVIEW [Vol. 7:275

A. Separate Dissent At of the end of the 2001-02 term, Justice Ginsburg had au­ thored forty-nine dissents, slightly above the Court's average in every term except one.69 As illustrated by these dissents, her strong regard for precedent is perhaps the foremost reason for expressing disagreement with the Court.70 Justice Ginsburg's adherence to precedent pushes her to illustrate the majority's disregard71 or even misapplication of precedent.72 Her incremental approach to the law prompts her to be critical of overbroad results that reach further than the facts of the case at hand73 or that fudge the facts to match prior precedent. 74 Although conservative in her applica­ tion of the law, Justice Ginsburg is hardly a blind follower of stare decisis; she demands only that when the Court breaks with past decisions, it does so in a forthright, definite manner75 and with strong support. 76 The strictures that apply in deciding to write separately alsq pervade the form and substance of Ginsburg dissents. A conserva­ tive approach is equally applicable to her mantra of no "spicy" dis­ sents. 77 Her dissents remain collegial by observing a respectful and restrained tone toward her colleagues, 78 never blatantly chastising or name calling, choosing to concentrate on the themes of prece­ dent and its proper application, rather than a direct onslaught on the majority's reasoning.79 Moreover, Justice Ginsburg tends to err on the side of brevity, favoring a narrow focus. 80

69 Laura Krugman Ray, justice Ginsburg and the Middle Way, 68 BROOK. L. REv. 629, 654 (2003). 70 Id. at 655-56. 71 Id. at 655. 72 Baugh et al., supra note 23, at 21. 73 Ray, supra note 69, at 655. 74 Id. at 657. 75 Id. at 656. 76 Id. at 658. 77 Id. at 656 (citing Ruth Bader Ginsburg, Styles of Collegial judging: One judge's Per­ spective, 39 FED. B. NEws & J. 199, 201 (1992)); see also judicial Voice, supra note 1, at 1194 (explaining that she questions "resort to expressions on separate opinions that generate more heat than light"). 78 Ray, supra note 69, at 668. 79 Id. at 671 (generally preferring more cryptically muted criticism, such as describing an opinion as "'puzzling"' or "'enigmatic'"). Miller v. Albright, 523 U.S. 420 (1998), discussed infra at Part III(A)(l), does not appear to fit within this rubric. so Baugh et al., supra note 23, at 24. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 287

1. Mil/,er. v. Albrights 1 The sole issue addressed by Justice Stevens, writing for the Court and joined by Chief Justice Rehnquist, in Miller v. Albright, was whether the requirement of additional proof of paternity im­ posed by 8 U.S.C.A. § 1409 (a) ( 4) on citizen fathers of illegitimate children borrt abroad but not on citizen mothers, violated the Equal Protection Clause of the Fifth Amendment.s2 A majority of the Court affirmed the District Court for the District of Columbia's dismissal of the petitioner daughter's case; however, a splintered Court prevented a decision as to the constitutionality of Section 1409.s3 The Court was sharply divided, as reflected in the plurality opinions uph?. lding on various grounds the Court of Appeals deci­ sion. The opi¢.ions ranged from that ofJ11stice Stevens, which held that Section 1409(a) (4) survived intermediate scrutiny review,s4 to Justices O'Connor's and Kennedy's concurring opinion finding that Miller lacked standing to assert a gender discrimination claim and thus the statute survived rational basis review,s5 to the opinion ofJustices Scalia and Thomas, arguing that the Court did not have power to grant the requested relief.s6 Justice Stevens, applying the intermediate ~crutiny test,s7 held that the paternity requirement was substantia,lly related to the important governmental interests of ensuring a blood relationship between the citizen parent and child and of fostering a parent-child relationship, as well as ties between the child and the United States.ss The disparity of treatment was not based on impermissible and outdated stereotypes, but rather on legitimate biological differences between mothers and fathers that did not make them similarly situated.s9 The paternity require­ ment for citizen fathers was therefore neither arbitrary nor irrational.90 If ever there were a compelling reason for Justice Ginsburg to

s1 523 U.S. 420. s2 Id. at 428. S3 Id. at 445. The constitutionality of§ 1409 was later decided in Nguyen v. INS, 533 U.S. 53 (2001), discussed infra at Part IIl(B)(l). 84 Miller, 523 U.S. at 441. S5 Id. at 451-52 (O'Connor, J., concurring). 86 Id. at 453 (Scalia, J., concurring). 87 Interestingly, Justice Stevens never once identified the applicable test or ac­ knowledged that statutes differentiating on the basis of sex are subject to "heightened scrutiny." 88 Miller, 523 U.S. at 436, 438. 89 Id. at 444-45. 90 Id. at 424. 288 NEW YORK CITY LAW REVIEW [Vol. 7:275 write separately, Miller is the paradigm, for it concerned gender discrimination, which occupied a large part of Justice Ginsburg's professional career, and the majority opinion flew in the face of precedent, shaped to a large extent by Justice Ginsburg. As she noted in her dissent, "Section 1409 is one of the few provisions remaining in the United States Code that uses sex as a criterion in delineating citizens' rights."91 Indeed the existence of a facially dis­ criminatory statute seemed to make Section 1409 a dinosaur on a certain path to extinction.92 Justice Ginsburg's dissent bore her trademarks: a focused critique and fidelity to gender equality pre­ cedent. In style and tone, however, it is surprising in its biting criti­ cism;93 she seems to have chosen to engage in a less collegial dialogue with some of her colleagues, namely Justices Stevens and Rehnquist, while, on the other hand, working in tandem with Jus­ tices Breyer and Souter.94 IfJustice Ginsburg truly eschews separate opinion writing, one might ask why she wrote a separate dissent, rather than simply join­ ing Justice Breyer's. Although she might have incorporated her ar­ guments into Justice Breyer's dissenting opinion, the focus of their two dissents is entirely different, and they may have decided that one lengthy dissent would have carried less weight than two sepa­ rate attacks on the plurality opinions. Moreover, the scope of Jus­ tice Breyer's opinion was far broader, addressing Justice O'Connor's standing argument, Justice Scalia's lack of relief stance, and finally the intermediate scrutiny analysis by Justice Ste­ vens.95 Paramount injustice Ginsburg's decision to write separately must have been her conviction that the majority had broken with precedent and had erroneously applied the rules of gender jurisprudence. Justice Ginsburg, however, chose an extremely narrow focus, concentrating on the history of citizenship laws, which traditionally discriminated against citizen mothers, and the Court's gender ju­ risprudence under which Section 1409 could not have survived had intermediate scrutiny been properly applied.96 Justice Ginsburg ad­ dressed the historical discrimination toward citizen mothers in na­ tionality and citizenship laws to broadside the government's

91 Id. at 461 (Ginsburg,]., dissenting). 92 Stobaugh, supra note 46, at 1756-57. 93 See infra notes 107-11 and accompanying text. 94 Justice Ginsburg, along with Justice Souter, signed on to Justice Breyer's dissent. Miller, 523 U.S. at 471 (Breyer,]., dissenting). 95 See generally id. at 471-90 (Breyer,]., dissenting). 96 Id. at 460-71 (Ginsburg,]., dissenting). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 289 explanation for the gender distinction-i.e., the close relationship between mother and child.97 She methodically deconstructed the statute, starting with the premise that "distinctions based on gen­ der trigger heightened scrutiny and '[i] t is unlikely ... that any gender classifications based on stereotypes can survive heightened scrutiny.' "98 Another nod to collegiality was her incorporation of Justice Breyer's dissent, which addressed the statute's unconstitu­ tional classification on the basis of gender.99 As the Court's expert on gender jurisprudence, Justice Gins­ burg might have been expected to author the lead dissent; how­ ever, she has consistently shown restraint when the Court has addressed gender discrimination cases. 100 Justice Ginsburg's dis­ sent is reminiscent of her litigation. She illustrated the impermissi­ ble reliance on stereotypes-mothers, not fathers, raise illegitimate children-which do not apply to all individuals and the use of gen­ der as an impermissible proxy for better solutions. 101 Justice Gins­ burg directly challenged the reasons behind the gender classification and was openly skeptical of the government's prof­ fered explanations.102 She reasoned that promoting close ties be­ tween a foreign-born child and the United States could be achieved without reference to gender. 103 Justice Ginsburg's dissent is most notable for the tone she adopted in addressing Justice Stevens' opinion. It is one of her most direct "ttacks on a colleague's opinion, setting this dissent apart from her norm, which ranges from characterizing her col­ leagues' reasoning as puzzling104 to burying criticism in foot­ notes.105 In fact, Justice Ginsburg's practice is to reserve mildly acerbic retorts106 for her majority opinions. In Miller, however, she pointedly referenced the majority's belief that Section 1409 was a benign classification to illustrate the irony of that observation in light of the discriminatory nature of nationality laws toward wo-

97 Id. at 468 (Ginsburg, J., dissenting). 98 Id. at 460 (Ginsburg, J., dissenting) (quoting Justice O'Connor's concurring opinion). Justice Ginsburg's use ofJustice O'Connor's language is a collegial gesture and cleverly points out that Justice O'Connor stands on the same side of the issue although she concurred on other grounds. 99 Id. 100 Ray, supra note 69, at 644. 101 Miller, 523 U.S. at 460 (Ginsburg, J., dissenting). 102 Id. at 468 (Ginsburg, J., dissenting). 103 Id. at 470 (Ginsburg, J., dissenting). 104 Ray, supra note 69, at 649. 105 Id. at 672. 106 Id. at 648. 290 NEW YORK CITY LAW REVIEW [Vol. 7:275 men, 107 and to remind the Court that benign discrimination can­ not save a statute whose objective could be served by gender neutral criteria.108 Instead of masking criticism of her colleagues, she boldly chastised Justice Stevens' embrace of societal stereo­ types109 as constitutionally impermissible. She even sarcastically quoted his take on a mother's connection to her child, 110 and then lambasted the government's use of the mother-child relationship to justify differential treatment when in fact the country historically did not respect this bond. 111 In concluding, Justice Ginsburg spoke directly to Congress as a coequal partner, challenging it to rectify Section l 409's gender bias.11 2 Engagement of other branches is an important component ofJustice Ginsburg's collegiality ideology.113 While her decision to write separately was an affirmative statement of her reasoning, faithful to her regard for precedent, it arguably did not conform to her guiding principle of moderation and restraint.

2. Gebser v. Lago Vista Independent School District 114

In one of four sexual harassment cases decided by the Su­ preme Court in the 1997-98 term, the Court took up the issue of employer liability in the context of teacher-student sexual harass­ ment. Victims of sexual harassment experienced the biggest set­ back in Gebser v. Lago Vista Independent School District, where Justice O'Connor, writing for the majority, held that a plaintiff is not enti­ tled to damages for teacher-student sexual harassment unless a school district official with authority to institute corrective mea­ sures has actual notice of, and is deliberately indifferent to, the

107 Miller, 523 U.S. at 460-61 (Ginsburg, J., dissenting). 108 Id. at 460 (Ginsburg, J., dissenting). 109 Id. at 469 (Ginsburg,J., dissenting).Justice Ginsburg noted that "[t]hese gener­ alizations pervade the opinion of Justice Stevens, which constantly relates and relies on what 'typically,' or 'normally,' or 'probably' happens 'often."' Id. (citation omitted). l lO Id. at 468 (Ginsburg, J., dissenting) (stating that "as Justice Stevens puts it, a mother's presence at birth, identification on the birth certificate, and· likely 'initial custody' of the child give her an 'opportunity to develop a caring relationship with the child.'"). 111 Id. 112 Id. at 471 (Ginsburg, J., dissenting) (stating that "Congress recognized this equality principle in 1934, and is positioned to restore that impartiality before the century is out."). 113 judicial Voice, supra note 1, at 1186 (noting that judges engage "in a dialogue with, not a diatribe against, co-equal departments of government"). 114 524 U.S. 274 (1998). 2004] TWIN PIUARS OF JUDICIAL PHILOSOPHY 291

i' teacher's mis<;:onduct. 115 In that case, Alida Star Gebser, a high school student, was sub­ jected to a campaign of sexual innuendo and provocation by her teacher. 116 She ultimately had an affair with the teacher that lasted for a year; Gebser never reported the incidents to anyone, includ­ ing her parents, because "she was uncertain how to react and she wanted to continue having him as a teacher."117 The affair was eventually discovered and the teacher was fired and arrested. 118 Gebser si;ied under Title IX of the Education Amendments of 1972, 119 which bars sex discrimination at educational institutions receiving federal funds. Although Titles VII and IX had been anal­ ogized in the past to determine liability for sexual harassment, the Court abandoned the analogy and departed from the clear law under Title VII in a 5-4 decision, holding that the school district was not liable for sexual harassment because no one with authority to take corrective action had actual notice of the harassment. 120 Justice Stevens, in his dissenting opinion, joined by Justices Souter, Gins~urg, and Breyer, criticized the majority's "dramatic departure" from well-settled principles of agency law. 121 He rea­ soned that under agency principles, the school district would be liable for the 'teacher's misconduct because it was the agency rela­ tionship that'. made the tort possible by giving the teacher such powerful influence over Gebser.122 Justice Stevens also highlighted the paradoxical result of the Court's ruling that school employees are now better protected from sexual harassment than are students at the same school. In fact~practically speaking, in some instances where even the principal o the school does not have authority to take corrective action, a h rassed student may be required to re­ port any instances of sexua harassment to the school board in or­ der to take advantage of he protections of Title IX. 123 Finally, Justice Stevens pointed ou that the majority's ruling actually en-

115 Id. at 290. 116 Id. at 277-78. 117 Id. at 278. 11s Id. 119 20 u.s.c. § 1681 (2004). 120 Gebser, 524 U.S. 274, 290-91 (1998). 121 Id. at 300-01 (Stevens, J., diss nting). 122 Id. at 298-99 (Stevens,]., diss nting) (citing RESTATEMENT (SECOND) OF AGENCY § 219(2)(d) (1957)). l23 Id. at 301 (Stevens,]., dissenti g) (stating that "[i] ndeed, the rule that the Court adopts would preclude a damages remedy even if every teacher at the school knew about the harassment but did not ave 'authority to institute corrective measures on the district's behalf."'). 292 NEW YORK CITY LAW REVIEW [Vol. 7:275 courages schools to turn their backs on sexual harassment alto­ gether as a means of avoiding liability. 124 He noted that the ruling has taken away the incentive to have an anti-harassment policy, ef­ fectively putting the responsibility on a thirteen-year-old student for reporting an incident, rather than putting the responsibility on the school or the teacher.125 Because of Justice Stevens' distinct concern for consistency with Title VII and with adherence to common law agency princi­ ples, it is within character that Justice Ginsburg signed on to the dissent. She did, however, also offer a brief independent dissent, in which Justices Souter and Breyer joined. Her dissent took Justice Stevens' dissenting opinion one step further to resolve the issue of whether a school district should be relieved of liability if it has a sexual harassment policy in place, recognizing an effective, ade­ quately publicized policy for reporting and redressing sexual har­ assment as an affirmative defense to a Title IX sexual harassment claim.126 This dissent is characteristically narrow in focus and mod­ erate in style and tone. Three paragraphs long, her dissent reflects her desire to clarify an important issue left open by the lead dis­ sent, without detracting from its force. Justice Ginsburg's concen­ tration on this single unresolved issue is a typical manifestation of collegiality yielding to individuality. She believes that the Court's role is not only to follow and interpret precedent faithfully, but also to create new case law when presented with an issue on which the lower courts require guidance. For Justice Ginsburg, the insti­ tutional function of the Court is as vital as the underlying substan­ tive law.

B. Collaborative Dissent In Justice Ginsburg's view, the role of a justice is to nurture collaboration through restraint.127 Thus, when egotism or the tug of individuality is the motivating force behind a dissent, it should

124 He states: The reason why the common law imposes liability on the principal in such circumstances is the same as the reason why Congress included the prohibition against discrimination on the basis of sex in Title IX: to induce school boards to adopt and enforce practices that will minimize the danger that vulnerable students will be exposed to such odious be­ havior. The rule that the Court has crafted creates the opposite incentive. Id. at 300 (Stevens,]., dissenting). 125 Id. (Stevens, J., dissenting). I2

be avoided. 128 As such, a collaborative dissenting effort serves the dual goals of decrying the majority's lack of attention to precedent while preserving the noncompetitive atmosphere of the bench. Ac­ cordingly, Justice Ginsburg has not always chosen to author an in­ dependent dissent, even when gender principles are at stake.

1. Nguyen v. INS 129 Three years after Miller, the constitutionality of Section 1409(a) was squarely addressed in Nguyen v. INS. 130 Justice Ken­ nedy's opinion for the majority upheld one of the last gender dis­ criminatory statutes. 131 In light of nearly thirty years of Supreme Court precedent striking down sex-based classifications rooted in overbroad generalizations, the ruling took academics and women's rights advocates by surprise. 132 Nguyen was the son of an American father and a Vietnamese mother. His father raised him in Vietnam and then the United States but never formally legitimated Nguyen, one of the means by which a child born out of wedlock and abroad to a citizen father and noncitizen mother may satisfy the paternity requirement of Section 1409(a) (4).133 As a lawful permanent resident, Nguyen was eligible for deportation following conviction for a felony. The Board oflmmigration Appeals rejected Nguyen's citizenship claim because he had not complied with Section 1409(a)'s statutory re­ quirements. On appeal to the Court of Appeals for the Fifth Cir­ cuit, he argu~d that Section 1409(a) violated the Equal Protection Clause by treating similarly situated children differently depending on the sex of the citizen parent. The circuit court rejected his claim, and the Supreme Court granted writ of certiorari, this time putting the legitimacy of Section l 409(a) squarely before the

128 See Ray, supra note 69, at 655; Ruth Bader Ginsburg, Remarks on Writing Sepa­ rately, 65 WASH. L. REv. 133, 141 (1990) (referring to "the competing tugs of collegial­ ity and individuality"). 129 533 U.S. 53 (2001). 130 Id. 131 Justice Kennedy's authorship of the Nguyen opinion is especially puzzling given that he joined Justice O'Connor's concurrence in Miller regarding§ 1409. See Millerv. Albright, 523 U.S. 420, 451-52 (1998) (O'Connor,]., concurring). 132 See, e.g., Mary-Christine Sungaila, Nguyen v. INS and Sex Stereotyping in Citizenship Laws: Building on the Equal Protection Legacy of Ruth Bader Ginsburg, 10 S. CAL. REV. L. & WoMEN's STUD. 293, 301 (2001) (noting that Nguyen was not the "cakewalk" that eve­ ryone had anticipated it would be). 133 As with Miller, § 1409(a) ( 4) is the only subsection addressed by the Court: the constitutionality of§ l 409(a) (3), which imposes a financial support requirement on citizen fathers but not citizen mothers, thus raising an equal protection claim, has not been reached by the Court. See Miller, 523 U.S. at 431; Nguyen, 533 U.S. at 60. 294 NEW YORK CITY LAW REVIEW [Vol. 7:275 justices.134 Writing for a five-justice majority, Justice Kennedy135 held that the more strenuous citizenship requirements of Section 1409 (a) (4) 136 for children born out of wedlock and abroad to a citizen father and noncitizen mother did not violate the equal pro­ tection guarantee embedded in the Fifth Arnendment. 137 The ma­ jority found that (1) ensuring that a biological parent-child relationship exists, and (2) promoting the opportunity for a genu­ ine parent-child relationship with ties between the child and par­ ent and by extension the United States, were important governmental interests,138 and that the statutory means chosen to achieve these interests were substantially related to the governmen­ tal purpose.139 Thus, the statute satisfied intermediate scrutiny. Justice O'Connor authored the dissent on behalf of four jus­ tices, 140 none of whom authored an additional dissenting opinion. Because Nguyen implicates an area on which Justice Ginsburg holds acknowledged and adamant legal views, it is worth inquiring as to why she did not write a dissent as well. Nguyen is not the first gen­ der discrimination case where she has remained silent;141 however, it is remarkable for its rather blatant disregard, even misapplica­ tion, of precedent, 142 which is traditionally one of the factors moti­ vating a Ginsburg dissent.143 Justice Ginsburg's silence is perhaps most appropriately explained by her equally strong fidelity to col­ legiality. Having already authored one of the dissents in Miller, she

134 Nguyen, 533 U.S. at 56. 135 Justice Kennedy's authorship of the majority opinion is seemingly in direct con­ flict with his position at the time of MiUer, when he joined Justice O'Connor's opin­ ion, which concurred in the judgment but found that petitioner lacked standing to bring a gender-based equal protection claim. Justice O'Connor hypothesized that it was unlikely that "any gender classifications based on stereotypes can survive height­ ened scrutiny." MiUer, 523 U.S. at 452 (O'Connor,J., concurring). 136 When the child's father is the American citizen, he must take one of three steps before the child's eighteenth birthday in order for the child to claim citizenship: legi­ timization, declaration of paternity under oath, or a court order of paternity. Nguyen, 533 U.S. at 62. 137 Id. at 73. 138 Id. at 63, 64-65. 139 Id. at 70. 140 Justices Souter, Ginsburg, and Breyer joined her dissent. Id. at 74 (O'Connor,J., dissenting). 141 See, e.g., discussion ofj.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994), infra at Part IIl(D) (1). 142 Justice O'Connor lambasted the majority for giving lip service to intermediate scrutiny, but in reality applying rational basis review. Nguyen, 533 U.S. at 74-75 (O'Connor,J., dissenting). · 143 Ray, supra note 69, at 655-57. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 295 deferred to Justice O'Connor's opinion addressing these same is­ sues in Nguyen, which allowedJustice O'Connor to incorporate the major points of Justice Ginsburg's earlier dissent. Moreover, be­ cause Justice Ginsburg's collegiality philosophy restrains her from confronting justices head-on, she may have made a strategic deci­ sion thatJustice O'Connor could deliver a more forceful attack on the majority opinion than she herself felt comfortable doing. 144 And finally, a single dissenting opinion would carry more weight, particularly if authored by the most conservative of the dissenters, and a member of the plurality majority in Miller. The substance ofJustice O'Connor's dissent incorporated Jus­ tice Ginsburg's gender jurisprudence, thus mitigating the necessity for a separate opinion. The dissent was a strong endorsement of the Ginsburg ,gender doctrine, reading like a Ginsburg brief in its recitation of precedent to illustrate the majority's misapplication, even disregard of the Court's own prior decisions. 145 The dissent eviscerated the moorings of the majority opinion. It attacked its failure to accurately apply intermediate scrutiny by essentially ig­ noring the "exceedingly persuasive" language component from Mississippi University for Women v. Hogan146 and United States v. Vir­ ginia ( VMJ). 147 It also maintained that sex-based classifications may not rely on overbroad generalizations based on outdated notions of the roles of men and women, and that the government's justifi­ cations for rryese classifications must be genuine, not a post-hoc product of litigation strategizing.148 The dissent demonstrated that the statute impermissibly relied on the stereotype that women take primary responsibility for childrearing149 and this stereotype, in fact, reinforced the lack of responsibility men assume when a child

144 The style o( the Nguyen dissent is forcefully direct, as demanded by such a bold divergence with ~upreme Court gender jurisprudence, but this is not a style with which Justice Gin,sburg is traditionally comfortable. In light of the majority's possible agenda to turn its back on invalidating gender discrimination, the members of the dissent may have decided the occasion called for a less diplomatic tone. In particular, the last paragraph of the dissent unabashedly criticized the legal analysis of the major­ ity opinion: "[n]6 one should mistake the majority's analysis for a careful application of this Court's equal protection jurisprudence concerning sex-based classifications." Nguyen, 533 U.S. at 97 (O'Connor,]., dissenting). 145 See Stobaugh, supra note 46, at 1757 (arguing that the majority in Nguyen reined in the use of the VMI "exceedingly persuasive justification" language). 146 458 U.S. 718 (1982). 147 518 U.S. 515 (1996); Nguyen, 533 U.S. at 74-77 (O'Connor,]., dissenting) (the dissenting Justices chastised the majority for applying rational basis review, instead of the required intermediate scrutiny). 148 Nguyen, 533 U.S. at 74-76 (O'Connor,]. dissenting). 149 Id. at 86 (O'Connor, J., dissenting). 296 NEW YORK CITY LAW REVIEW [Vol. 7:275 is born out of wedlock.150 Justice O'Connor further criticized the majority for "gloss[ing] over the crucial matter of the burden of justifica­ tion."151 The first prong of the intermediate scrutiny test demands that the government provide an important governmental interest to justify its use of a sex-based classification. In other words, the government carries the burden. In altering the language to an im­ personal construction, 152 the majority lessened the government's burden, thereby setting the precedent of an alternative and lower standard for intermediate scrutiny.153 Justice O'Connor also fo­ cused on gender-neutral alternatives to the sex-based classification, which the majority acknowledged existed but did not see as fatal to Section 1409's constitutionality.154 Requiring that the parent be present at the birth or have knowledge of the birth were examples of such gender-neutral alternatives.155 Furthermore, the means­ end test was not met where the purported government objective of close ties between parent and child was not substantially furthered by requiring proof of such opportunity before the child's eight­ eenth birthday, and such relationships did exist even without ob­ taining such proof.156 Moreover, the nexus was further weakened by the fact that some mothers never develop a relationship with their children due to abandonment or other tragedies.157 Justice Ginsburg might have furthered her effort to have gen­ der regarded as a suspect classification in a separate opin­ ion-something she hinted at in VMI and Harris v. Forklift Systems, /nc.158 Or, if this option was not in line with her views on judicial conservatism/moderation, she might have highlighted the major­ ity's betrayal of precedent in misapplying intermediate scrutiny

150 Id. at 92 (O'Connor,]., dissenting).Justice O'Connor buttressed her argument with the legislative history of § 1409 where the citizenship status of illegitimate chil­ dren was tied to the mother because they stood in the shoes of the father. Id. at 91-92 (O'Connor, J., dissenting). This is, of course, in stark contrast to the traditional legal position that women could not transmit U.S. citizenship to children born abroad. See Miller v. Albright, 523 U.S. 420, 463 (1998) (Ginsburg,]., dissenting). 151 Nguyen, 533 U.S. at 78 (O'Connor,]., dissenting) (citation omitted). 152 Id. at 60 (stating that "[!]or a gender-based classification to withstand equal pro­ tection scrutiny, it must be established . ..") (emphasis added). 153 Id. at 78 (O'Connor, J., dissenting) (explaining that "the Court's use of the impersonal construction might represent a mere elision of what we have stated ex­ pressly in our prior cases. Here, however, the elision presages some of the larger fail­ ings of the opinion."). 154 Stobaugh, supra note 46, at 1771. 155 Nguyen, 533 U.S. at 86 (O'Connor, J., dissenting). 156 Id. at 84-86 (O'Connor,]., dissenting). 157 Id. at 86 (O'Connor, J., dissenting). 158 510 U.S. 17, 26 n.* (1993) (Ginsburg,]., concurring). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 297 and cursory acknowledgment of the "exceedingly persuasive" lan­ guage, or she could have addressed the reasons behind the major­ ity's masked usage of rational basis. 159 However, these points apparently did not outweigh the need for collegiality as expressed by a single dissent. 160

C. Separate Concurrence

If it is true, as one commentator has stated, that a concurrence presents a less compelling justification for writing separately than a dissent,161 it i,s interesting to note that at the end of the 2001-02 term, Justice P,insburg ha~ authored more concurrences than dis­ sents during fher tenure.162 This figure is even more remarkable when broken down by term, which places Justice Ginsburg above the Court's average in five out of her nine terms.163 Justice yinsburg's concurrences seem to follow certain precepts. Notably, she does not engage in a lengthy regurgitation of the majority opinion.164 Rather, she strikes out on her own legal footing to limit or expound on the Court's holding in order to prevent its future misuse or misapplication and to raise open ques­ tions that she feels the majority opinion should have addressed.165 Her vision is therefore turned toward the horizon of future cases. 166 While Justice Ginsburg thus appears to employ concur­ rences as a tqol of clarification, her reasons for writing are not al­ ways evident. 167 In fact, the brevity of her concurrences, another Ginsburg trait, 168 sometimes contributes to the confusion concern­ ing their meaning.

159 Stobaugh, s_upra note 46, at 1772. 160 Moreover, Justice O'Connor incorporated the major themes of Justice Gins­ burg's Miller dissent: the history of discrimination against women in laws governing the transmission of citizenship; the lack of fit between purpose and means; and the impermissible reliance on stereotypes that may hold true for most women but not for all women. Nguy~n, 533 U.S. at 88-91 (O'Connor,J., dissenting). 161 Ray, supra note 69, at 673. 162 Between Supreme Court terms 1993-2001,Justice Ginsburg wrote fifty concur- rences, one mor~ than the number of her dissents. Id. at 673-74. 163 Id. at 674. ' 164 Id. 165 Id. at 674-75. 166 Id. at 674. 167 See discussion of Burlington Indus., Inc. v. EUerth, 524 U.S. 742 (1998), infra at Part III(C) (2). l 168 Ray, supra note 69, at 674. 298 NEW YORK CITY LAW REVIEW [Vol. 7:275

1. Harris v. Forklift Systems, Inc. 169 In 1993, the Supreme Court, by unanimous opinion, clarified the parameters of a hostile work environment sexual harassment 1 claim in Harris v. Forklift Systems, Inc., iO holding that for actionable sexual harassment, the plaintiff need not show that the conduct caused a tangible psychological injury.m Under Harris, courts must evaluate the totality of the circumstances, consider the frequency of the discriminatory conduct, its severity, whether it was physically threatening or humiliating, or whether it unreasonably interfered with an employee's work. 1i 2 Without specifically rejecting the reasonable woman standard applied by the Harris trial court, and without directly addressing the debate, the Court applied the reasonable person test, holding that the conduct must be so "severe or pervasive" that a "reasona­ ble person" would find it, and the plaintiff did find it, hostile or abusive. 1 i3 The Court left the form of the objective test unresolved, "leaving lower courts wondering whether or not the Court had im­ plicitly rejected the gender-based reasonableness standard."1i 4 In a short concurring opinion,Justice Ginsburg clarified what she acknowledged was implicit in the majority opinion: the "in­ quiry should center, dominantly, on whether the discriminatory conduct has unreasonably interfered with the plaintiff's work per­ formance."1i5 She used the term "reasonable person" in her con­ currence, reaffirming her approval of the majority's reliance on that test.li6 Additionally, she asserted in a footnote that "it remains an open question whether 'classifications based upon gender are 1 inherently suspect.' " ;; Her concurrence is clear and to the point, acknowledging that her view seems to be "in harmony" with the majority's opinion,1i 8 but giving added guidance to lower courts for making the proper determination of whether a hostile work environment exists. But simply clarifying a point that is implicit in the majority opinion is

169 510 U.S. 17 (1993). 1i0 Id. at 21-22. I il Id. at 22. 1 i2 Id. at 23. 1 i3 Id. at 22. li4 Smith, supra note 41, at 1935. Ii5 Harris, 510 U.S. at 25 (Ginsburg,]., concurring). Jin Id. 1 ii Id. at 26 (Ginsburg,]., concurring) (quoting Miss. Univ. for Women v. Hogan, 458 U.S. 718, 724 & n.9 (1982)). 11s Id. 2004) TWIN PILLARS OF JUDICIAL PHILOSOPHY 299 not typically a sufficient basis for a Ginsburg concurrence.179 She tends only to encroach on her collegiality principle and write sepa­ rately to clarify points of confusion in the lead opinion, to deline­ ate precisely the parameters of the Court's opinion, or to provide additional guidance to lower courts on issues left open by the ma­ jority. The substance of this concurrence in Harris reaches beyond these reasons. Thus, a closer look at her possible intentions is in order. Through her comment in the footnote about whether sex­ based classifitations are immediately suspect, Justice Ginsburg "subtly laid the groundwork for future reconsideration of the ques­ tion whether 'the Equal Protection [C]lause protects against gen­ der discrimination as strongly as it protects against racial discrimination."180 Because the case was decided under Title VII, rather than under the Fourteenth Amendment,Justice Ginsburg's decision to raise the application of strict scrutiny to sex-based clas­ sifications was already an aggressive legal stratagem. Also, by imply­ ing that sex should be declared a suspect classification entitled to the same scrutiny as race-based classifications, her comment chal­ lenged years of settled gender jurisprudence analyzed under the intermediate scrutiny test.181 Accordingly, she made a measured choice not to,argue this point directly, but artfully raised the issue indirectly in a footnote. The Harbs footnote, in its attempt to reopen the debate on whether sex is a suspect classification, was an especially ground­ breaking maneuver for Justice Ginsburg, who normally does not advocate the reevaluation of a settled issue. 182 However, even in making this assertive step, Justice Ginsburg retained her quintes­ sential characteristics of moderation and collegiality. She framed the issue indirectly in terms of gender as a suspect classification, 183 rather than directly attacking the analysis of classification under the less strenuous intermediate scrutiny test, which surely would have caused much rancor on the Court.

179 See Ray, su~~a note 69, at 674-75. 180 Christopher Smith et al., The First-Term Perfonnance ofJustice Ruth Bader Ginsburg, 78 JUDICATURE 74, 79 (1994). 181 Norman T. Deutsch, Nguyen v. INS and the Application of Intermediate Scrutiny to Gender Classifications: Theory, Practice, and Reality, 30 PEPP. L. REv. 185, 195 (2003) (stat­ ing that since 1982, intermediate scrutiny has been the consistent standard of review for a majority of the Supreme Court). 182 See supra text accompanying note 15. 183 Harris, 510 U.S. at 26 (Ginsburg,]., concurring) (quoting Miss. Univ.for Women v. Hogan, 458 U.S. 718, 724 & n.9 (1982)) (stating that "ii remains an open question whether 'classifications based upon gender are inherently suspect'"). 300 NEW YORK CITY LAW REVIEW [Vol. 7:275

Since Justice Ginsburg was already compromising her collegi­ ality views by writing separately on other issues, it is unclear why she did not also take the opportunity to express her view on the parameters of the objective test, an issue conspicuously ignored by the majority. The circuit courts were conflicted about the standard for determining the existence of a hostile or abusive work environ­ ment. Courts were split as to whether to make that determination from the perspective of a reasonable person or that of a reasonable woman, given that the vast majority of sexual harassment claims are brought by women.184 At first blush, Justice Ginsburg might be ex­ pected to advocate for the reasonable woman standard. While the so-called neutral reasonable person test provides a universal stan­ dard, many commentators and some courts believe that it actually contains unstated assumptions that are male-based.185 The reasona­ ble woman standard, conversely, includes women's experiences "in a system with asymmetrical power relations that has historically ex­ cluded women's participation." 186 Arguably, however, the reasonable woman test is antithetical to Justice Ginsburg's egalitarian philosophy, favoring the complete elimination of gender-based classifications. "Undeniably, the rea­ sonable woman standard is asymmetric; it is premised on an ex­ plicit gender distinction and calls for non-identical treatment of men and women."187 The difference in treatment is implicitly based on the premise that men and women have different perspec­ tives regarding what conduct constitutes sexual harassment and that women are more likely to be offended by certain workplace conduct than are men. This presumption perpetuates the stereo­ type that women are more emotional and more sensitive than men

184 See, e.g., Paroline v. Unisys Corp., 879 F.2d 100, 105 (4th Cir. 1989) (applying reasonable person test); Waltman v. Int'l Paper Co., 875 F.2d 468, 476 (5th Cir. 1989) (applying reasonable person test); Stee'-e v. Offshore Shipbuilding, Inc., 867 F.2d 1311, 1316-17 (11th Cir. 1989) (applying reasonable person test); Rabidue v. Osceola Ref Co., 805 F.2d 611, 620 (6th Cir. 1986) (applying reasonable person test); Ellison v. Brady, 924 F.2d 872, 879 (9th Cir. 1991) (applying reasonable woman test); Andrews v. City of Phila., 895 F.2d 1469, 1482-83 (3d Cir. 1990) (applying "minority employee" test). l85 See, e.g., Ellison, 924 F.2d at 879; Andrews, 895 F.2d at 1482-83; Naomi R. Cahn, The Looseness of Legal Language: The Reasonable Woman Standard in Theory and in Practice, 77 CORNELL L. REv. 1398 (1992); Sally A. Piefer, Comment, Sexual Harassment from the Victims Perspective: The Need for the Seventh Circuit to Adopt the Reasonab'-e Woman Stan­ dard, 77 MARQ. L. REv. 85, 86 (1993); Lynn Dennison, Note, An Argument for the Rea­ sonable Woman Standard in Hostile Environment Claims, 54 OHIO ST. L.J. 473 (1993). 186 Calm, supra note 185, at 1401. 187 Martha Chamallas, Feminist Constructions of Objectivity: Multip!,e Perspectives in Sex­ ual and Racial Harassment Litigation, I TEx. J WOMEN & LAw 95, 108 (1992). 2004] TV,IJN PIUARS OF JUDICIAL PHILOSOPHY 301 I and therefore need greater protection.188 The reasonable woman standard is also essentialist in nature, wrongly presuming that there is just one female perspective, typically that of the white, middle­ class woman. '.fhus, the reasonable woman standard "may perpetu­ ate existing inequalities based on race, class, sexual orientation and other factors when it fails to consider the point of view of subordi­ nated groups other than women."189 Presumably, if Justice Ginsburg had disagreed with the major­ ity's use of the reasonable person standard, she would have so indi­ cated in her; concurrence. Instead, she subtly reaffirmed the majority's us~ of the test by repeating the phrase "reasonable per­ son" in her concurrence.190 Because the reasonable woman stan­ dard differentiates women from men, in contravention of her belief that even benign differences in treatment of women ulti­ mately harm women and their plight for equal treatment in the workplace, her failure to push for the reasonable woman standard is wholly consistent with her agenda.

2. Burlington Industries, Inc. v. EUerth 191 In two other sexual harassment cases decided during the 1997- 98 term, the Supreme Court resolved a split in the circuit courts over the correct standard for holding employers liable for the sex­ ual harassment of an employee by a supervisor. In Faragher v. City of Boca Raton, the Court addressed the issue in the context of a hostile work environment claim, 192 whereas in Burlington Industries v. El- 1.erth, the Court addressed the issue based on a claim of quid pro quo sexual harassment.193

188 Smith, supra note 41, at 1935. 189 Deborah Zalesne, The Intersection of Socioeconomic Class and Gender in Hosti/,e Hous­ ing Environment Claims Under Title VIII: Who is the Reasonable Person?, 38 B.C. L. REv. 861, 879-80 (1997). 190 Harris ii. Fo;rklift Sys. Inc., 510 U.S. 17, 25 (1993) (Ginsburg,]., concurring). 191 524 U.S. 742 (1998). 192 Faragher v. City of Boca Raton, 524 U.S. 775, 780 (1998). This case involved a lifeguard who was subjected to repeated and uninvited offensive touching, sexual comments and gestures and threatening sexual requests by her two male supervisors. Id. at 782. Her employer, the City of Boca Raton, asserted that it could not be held responsible for hostile work environment harassment that occurred at a remote loca­ tion and which, although reported to an intermediate supervisor, was never reported to higher-ups in ,the city. Id. at 782-85. 193 Burlington, 524 U.S. at 742. Burlington involved a claim that the plaintiff's super­ visor repeatedly implied that her job would be in jeopardy unless she succumbed to his advances. Id. at 748. Her employer, Burlington Industries, argued it should not be held liable because she suffered no job consequences (she actually was promoted before she quit), and because she failed to utilize the company's sexual harassment complaint procedure. Id. at 749. 302 NEW YORK CITY LAW REVIEW [Vol. 7:275

In considering these two cases, the Court determined first that the distinction between hostile work environment and quid pro quo harassment did not control the issue of employer liability. 194 The Court then held that under either type of claim, employers are potentially liable for their supervisors' misconduct, whether or not the company was aware of the misconduct. 195 Specifically, an em­ ployer will be held strictly liable to a victimized employee who has an actionable claim of sexual harassment against a supervisor who has authority over the employee, when the exercise of supervisory authority results in tangible employment action, such as discharge, demotion, or undesirable reassignment to the plaintiff.196 When the plaintiff cannot prove tangible employment action, the em­ ployer can raise the affirmative defense that it exercised reasonable care to prevent and to promptly correct any sexually harassing be­ havior, and that the complaining employee unreasonably failed to take advantage of any preventive or corrective opportunities pro­ vided by the employer. 197 Six justices, including Justice Ginsburg, signed on to Justice Souter's Faragher opinion, with only Justices Thomas and Scalia dis­ senting.198 In Burlington, Justice Kennedy garnered a sixjustice ma­ jority, with Justice Ginsburg concurring in the judgment only.199 Again, Justices Thomas and Scalia were the lone dissenters.200 Justice Ginsburg's Burlington concurrence is characteristically short at a mere two sentences, but uncharacteristically vague. Her entire concurrence reads as follows: I agree with the Court's ruling that "the labels quid pro quo and hostile work environment are not controlling for purposes of establishing employer liability." I also subscribe to the Court's statement of the rule governing employer liability, which is sub­ stantively identical to the rule the Court adopts in Faragher v. Boca Raton. 201 For Justice Ginsburg to weaken a seven-to-two decision by writing separately, one would expect deeply held principles to be at stake, yet she fails to articulate her objections to the majority's reasoning. Why Justice Ginsburg wrote separately in this instance is in-

194 Id. at 754. 195 See id. at 765. 196 Id. 197 Id. l98 Faragher v. City of Boca Raton, 524 U.S. 775, 810-11 (1998) (Thomas, J., dissenting). 199 Burlington Indus., 524 U.S. at 766 (Ginsburg,]., concurring). 200 Id. (Thomas,]., dissenting). 201 Id. (Ginsburg,]., concurring). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 303

deed puzzling, as her concurrence is unfaithful to her collegiality principle, with no countervailing conviction to explain the depar­ ture. As noted, Justice Ginsburg will typically write separately in or­ der to clarify ambiguities or vague points, or to correct a misapplication of precedent.202 Her Burlington concurrence does neither.203 She proceeds to muddy the water with respect to an oth­ erwise solid majority opinion, by failing to articulate any precise objections. The majority opinion rests primarily on the rule that, if super­ visors create a hostile work environment, employers are strictly lia­ ble where there is tangible harm to the plaintiff, but only vicariously liable where the plaintiff suffers no tangible harm.204 Perhaps Justice Ginsburg opposed the application of agency princi­ ples, preferring instead a rule of strict liability for the employer in all cases. Strict employer liability is more in line with traditional Title VII doctrine, and accounts for the power supervisors typically have to adversely affect an employee's working terms or condi­ tions.205 This interpretation of her concurrence fails, however, as Justice Ginsburg purported to agree with the rule applied by the majority. If she does, indeed, agree with the rule, one could as­ sume she disa:grees with the majority's reasoning. But this is conjec­ ture, because~she does not clearly so indicate. Furthermore, if she disagrees with the reasoning, she is not successful in pushing the law forward, as her objections are unclear.206

D. Col/,egial Alliance with Majority Even where a case raises issues of gender discrimination, Jus­ tice Ginsburg does not compromise her fidelity to collegiality and moderation \fithout good reason. Nowhere is this more evident than in several prominent gender discrimination cases, where Jus­ tice Ginsburg signs on to the Court's opinion without concurring. On certain notable occasions, Justice Ginsburg chose not to speak

202 See supra notes 70-72 & 167-69 and accompanying text. 203 See Burlington Indus., 524 U.S. at 766 (Ginsburg, J., concurring). 204 Id. at 765. 205 Before the Burlington and Faragher cases were decided, this reasoning led one commentator to •predict that Justice Ginsburg would take this position. See Smith, supra note 41, at 1942. Smith predicted that "[u]nless courts are willing to find vicari­ ous liability without requiring notice to the employer, Justice Ginsburg will reason, many valid sexual harassment claims will be denied a remedy, and the intent of Title VII to assure a workplace free from discrimination may be frustrated." Id. 206 Notably, Justice Ginsburg signed on to the majority opinion in Faragher, leaving the question of why she did not concur in that case as well. Faragher v. City of Boca Raton, 524 U.S. 775 (1998). 304 NEW YORK CITY LAW REVIEW [Vol. 7:275 out, despite the presence of principles that guided her in breaking with her colleagues in past cases. While inductive analysis ofJustice Ginsburg's inaction calls for a more hypothetical discussion than her action would have required, it is nonetheless instructive to con­ sider what prompted her to remain a silent member of the majority in those cases. While her decisions in some cases may seem to evidence acqui­ escence to institutional pressures and forfeiture of her gender equality principles, a more nuanced analysis often reveals a deep allegiance to her collegiality postulate, and concern for the prece­ dential weight afforded to a majority opinion. These decisions are also consistent with her incremental approach to decision-making, as she may have questioned the timing of raising more radical issues.

1. J.E.B. v. Alabama ex rel. TB During Justice Ginsburg's first term, a gender discrimination case, JE.B. v. Alabama ex rel. TB., was on the docket.207 The case challenged the use of peremptory strikes based on gender on the ground that it violated the Equal Protection Clause.::ws The Court ruled six-to-three that a juror's gender was a constitutionally imper­ missible reason for dismissal.209 This decision was entirely consis­ tent with the Court's rulings over the past two decades, recognizing that gender could not be a proxy for a more competent and indi­ vidualized analysis of a person.210 As the first equal protection gen­ der discrimination case before Justice Ginsburg in her first term on the Court,JE.B. received heightened scrutiny from women's rights groups and legal commentators.211 Based on her public stand re­ garding absolute equality of the sexes, some questioned whether she would continue to advocate on the bench. Justice Ginsburg chose to remain silent, joining the majority opinion authored by Justice Blackmun.212 J.E.B. was the putative father of a child born out ofwedlock.213 The State of Alabama, on behalf of the mother, T.B., brought a paternity suit in the District Court of Jackson County, Alabama.214

207 511 U.S. 127 (1994). 20s Id. at 129. 209 Id. at 128. 210 See id. at 139 n.11. 211 Baugh et al., supra note 23, at 26-27. 212 JE.B., 511 U.S. at 128. 213 See id. at 129. 214 Id. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 305

During voir dire, the State used nine of its ten peremptory chal­ lenges to dismiss potential male jurors.215 Subsequent to the jury finding J.E.B. to be the father and the court entering an order di­ recting him to pay child support, he appealed on the ground that the State's use of peremptory challenges to dismiss male jurors solely because of their sex violated the Equal Protection Clause and prevented him from receiving a fair trial.216 The trial court rejected this claim, holding that Batson v. Ken­ tucky217 did not extend to gender-based peremptory challenges, and the Alabama Court of Civil Appeals affirmed.218 The Supreme Court of Alabama subsequently denied certiorari. 219 The Supreme Court, however, overturned the ruling of the Alabama Court of

Civil Appeals1 and Justice Blackmun reaffirmed the last twenty­ three years of gender precedent.220 It must not have escaped Jus­ tice Blackmun's notice that his opinion relied on the very gender precedents that his new colleague, Justice Ginsburg, helped formu­ late.221 Nevertheless, he refused to revisit the issue of whether gen­ der classifications are per se suspect; in fact, he pointedly abstained from declaring gender a suspect classification.222 Justice Blackmun was directly responding to Justice Ginsburg's Harris footnote, which was intended to reopen the debate regard­ ing the appn?Priate level of scrutiny for gender classifications.223 Whether the footnote was a collegial invitation to the Court to re­ visit the level of scrutiny for gender classifications or a more aggres­ sive declaration of one justice's agenda, or a combination of the two, Justice Ginsburg mysteriously did not follow through on either her footnote or Justice Blackmun's blunt refusal to settle the issue. Instead she silently joined the majority. It makes little sense that she should challenge intermediate scrutiny in a footnote and then not revisit the issue at the next opportunity, especially considering that gender discrimination cases do not frequently come before the Court. Pe~haps Justice Ginsburg felt that the time was not ripe f 215 Id. 216 Id. 217 476 U.S. 79 (1986) (holding that race-based peremptory challenges violated the Fourteenth Amendment's Equal Protection Clause). 218 JE.B., 511 U.S. at 129. 219 Id. at 130. 220 Se.3 id. at 139 n.11. 221 Se.3 id. at 135-36 (citing the Reed, Boren and Frontiero cases, among others). 222 Id. at 137 n.6 (noting that "we once again need not decide whether classilica­ tions based on gender are inherently suspect"). 223 See supra notes 180, 183 & 185 and accompanying text. 306 NEW YORK CITY LAW REVIEW [Vol. 7:275 to revisit the issue of scrutiny level and that more time was needed to lay a friendlier foundation. To some commentators, Justice Ginsburg's decision to remain silent constituted an abdication of her duty to use her position to engage the Court in a discussion of important issues within gender discrimination law. 224 Certainly, a concurrence would not have compromised her collegiality views, which prescribe the use of sep­ arate opinion writing to clarify affirmative statements of the law. 225 Given that the Supreme Court has struggled in the past with the level of scrutiny to attach to gender discrimination,226 Justice Black­ mun threw down the gauntlet by citing Justice Ginsburg's Hams footnote in which she supports the inclusion of gender as a suspect classification. Readdressing the issue and maintaining a consistent voice would have informed her colleagues that this was an issue that needed to be addressed at some point and was not going away. Another advantage to concurring could have been to lay the foun­ dation for incremental consensus-building. IfJustice Ginsburg's si­ lence may be explained by her reluctance to use her expertise in the field of gender discrimination to lord over her colleagues, it is unfortunate, for a strong voice was needed to remind the Court of its gender precedents in light of the Court's subsequent direction in Milkr and Nguyen. ·

2. Oncale v. Sundowner Offshore Services, Inc. 227

In Oncale v. Sundowner, the Supreme Court revisited the issue of what conduct constitutes sexual harassment, but this time in the context of a man suing another man.228 In 1991,Joseph Oncale, a self-identified heterosexual oilrig worker, was sexually harassed by his heterosexual co-workers and supervisor on an oilrig off the coast of Louisiana. He claimed that he was sexually assaulted, bat­ tered, touched and threatened with rape by his direct supervisor and others, including one instance where three male co-workers held him down in a shower and shoved a bar of soap between his

224 See Baugh et al., supra note 23, at 27. 225 See judicial Voice, supra note l, at 1196. Moreover, it is less clear whether Justice Ginsburg is as skeptical of the concurring justice as she is of the dissenter. Her re­ marks focus more on the evils of prolific and vociferous dissenting, not of concurring. 226 Justice Brennan did not have a majority join his strict scrutiny reasoning in Fron­ tiero v. Richardson, 411 U.S. 677 (1973). See supra note 40 and accompanying text. justice Ginsburg pushed for intermediate scrutiny following this decision. See supra note 41 and accompanying text. 227 523 U.S. 75 (1998). 22s Id. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 307 buttocks.229 He sued under Title VII, claiming he was subjected to a hostile work environment, but the lower courts denied his claim since both he and his harassers were male.230 By unanimous vote, the Supreme Court reinstated Oncale's claim, stating that "nothing in Title Vll necessarily bars a claim of discrimination 'because of sex' merely because the plaintiff and the defendant ... are of the same sex."231 While the Oncale opinion was widely touted as expanding the scope of protection of Title VII, 232 the holding is limited in a way that leaves open many questions of application. In response to the concern that Title VII would expand into "a general civility code for the American workplace,"233 the Court assured that even a same-sex plaintiff "must always prove that the conduct at issue was not merely tinged with offensive sexual connotations, but actually constituted 'd,iscrimination ... because of sex.' "234 The Court then proposed two, possible evidentiary routes to support an inference that a same-sex harassment plaintiff had been singled out for har­ assment on the basis of sex: (1) evidence that "a female victim is harassed in s~ch sex-specific and derogatory terms by another wo­ man as to make it clear that the harasser is motivated by general hostility to the presence of women in the workplace;"235 and (2) "direct comparative evidence about how the alleged harasser treated members of both sexes in a mixed-sex workplace."236 These examples, strikingly irrelevant to the conduct before the Court in­ volving harassment of a male in a male-dominated workplace, focus exclusively on biological sex, limiting sexual harassment to situa­ tions where the harasser treats men as a group differently from women as a group. Excluded from protection under this narrow reading is the effeminate or sexually prudish man who is singled

229 Onca/,e v. Sundowner Offshore Sero. Inc., 83 F.3d 118, 119 (5th Cir. 1996), rev'd, 523 U.S. 75 (1998). 230 Id. 231 Onca/,e, 523 U.S. at 79. 232 See, e.g., John Gallagher, Friends of the Court: Landmark Decisions on Same-Sex Sexual Harassment and Marriage Side in Gays' Favor, Aovoc.: NAT'L GAY & LESBIAN NEws­ MAGAZINE 13 (Mar. 31, 1998);John Cloud, Harassed or Hazed?: Why the Supreme Court Ruled that Men Can Sue Men for Sex Harassment, TIME, Mar. 16, 1998, at 55 (reporting that "most lesbians and gays praised Scalia's ruling" and that "feminists have rejoiced"); Same-Gender Harassment is also Banned, 219 N.Y.LJ. 1 (March 5, 1998) (re­ ferring to the Oncale decision as "a case of enormous importance for American workplaces"). 233 Oncale, 523 U.S. at 80. 234 Id. at 81. 235 Id. at 80. 236 Id. at 80-81. 308 NEW YORK CITY LAW REVIEW [Vol. 7:275 out by his male coworkers or employers and teased, taunted, and ridiculed because he does not conform to traditional and expected gender roles. Indeed, the Court's ruling did not address whether Oncale was in fact sexually harassed, leaving it to the lower courts to work out what proof was required to establish that same-sex harassment was "because of sex." Oncale's case was remanded and Oncale was left to convince a jury that his co-workers and supervisor discrimi­ nated against him because of his sex. The parties ultimately settled the case,237 so it remains unclear whether the Supreme Court's rul­ ing would have helped Oncale. In fact, while the Oncale decision allows the possibility of a same-sex sexual harassment claim, there is no indication that the Court would recognize the right of such a plaintiff based on the gender stereotyping that is typical of same­ sex sexual harassment. Accordingly, even if Oncale's co-workers did everything he said they did, he still might have lost his case on remand. Despite this lack of clarity and subtle limitation of the rights of same-sex harassment plaintiffs, Justice Ginsburg signed on to the majority opinion, foregoing an opportunity to provide additional guidance in a case with particular gender equality implications. Jus­ tice Ginsburg surely had an interest in maintaining the force of a unanimous court in an opinion widely believed to be an important victory for same-sex harassment plaintiffs, particularly in light of the fact that it was authored by Justice Scalia, one of the Court's arch-conservatives. A concurrence, however, would not have be­ trayed her strict principles regarding writing separately. The examples enumerated by the Court, while not necessarily exhaustive of the ways in which a same-sex harassment plaintiff can prove that the harassment was "because of sex," reflect rigid, con­ strained conceptions of "sex" and sex-based conduct. As many courts below had done, the Court effectively bifurcated per­ sonhood into "male" and "female" components, attributing distinct characteristics to men and women as if they applied universally and without variation. By using "male" and "female" as opposing bina­ ries in its narrow interpretation of "sex," the Court implicitly ac­ cepted the validity of biological sexual differences, perpetuating the stereotyped distinctions between the sexes that Justice Gins­ burg famously abhors. Even if the "because of sex" requirement were not meant to be interpreted in such a limited way, Justice

237 See Mary Judice, LA. Offshore Worker Settles Sex Suit: Harassment Case Made History in Supreme Court, NEW ORLEANS T1MEs-P1CAYUNE, Oct. 24, 1998, at Cl. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 309

Ginsburg might, at a minimum have spoken out on the remarkable lack of guidance for applying this requirement in an all-male work environment. She might also have argued for a more liberal interpretation of Title VII's "because of sex" language, so as to remain in line with opposite-sex sexual harassment jurisprudence. In that context, courts have long recognized that Title VII's reference to conduct based on an individual's "sex" is, in essence, a reference to conduct based on the individual's gender identity, because gender identity encompasses the socially-constructed and socially-relevant aspects of an individual's sex.238 Accordingly, the Supreme Court has rec­ ognized in opposite-sex sexual harassment cases that conduct based on gender-stereotyped notions of how an individual should appear and behave, is, in effect, conduct based on the plaintiffs sex within the meaning of Title VII. 239 The Oncale case presented an opportunity for Justice Ginsburg to use a male litigant to advance her concern with gender equality over women's rights.240 Title VII was intended to lift all arbitrary and capricious hurdles to employment and to afford employees "the right to work in an environment free from discriminatory in­ timidation, riricule, and insult."241 Congresswoman May, arguing in favor of the addition of "sex" in Title VII, described Title VII as an "endeavor, to have all persons, men and women, possess the same rights and same opportunities."242 By potentially limiting the reach of Title VII protection to people who fail to conform to gen­ der stereotypes where the harasser is of the opposite sex, the Court contravenes tpe explicit goals of the statute. While strkt adherence to the gender precedent set by the op­ posite-sex harassment cases might be expected from Justice Gins­ burg, given the great strides the Oncale Court had already taken in

238 Many courts have, in fact, used the word "gender" interchangeably with the word "sex" in their analyses under Title VII. See, e.g., Hopkins v. Baltimore Gas & Elec. Co., 77 F.3d 745, 1749 n.l (4th Cir. 1996) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 239-41 (1989,)); DeSantis v. Pac. Tel. & Tel. Co., 608 F.2d 327, 329 (9th Cir. 1979); Holloway v. Arthur Anderson & Co., 566 F.2d 659, 662 (9th Cir. 1977 ); Schoiber v. Emro Mktg. Co., 941 F. Supp. 730, 734 (N.D. Ill. 1996). 239 See, e.g., Price Waterhouse, 490 U.S. 228 (affirming the U.S. District Court for the District of Columbia's finding of sex discrimination). Price Waterhouse had imper­ missibly discriminated on the basis of "sex" when it "acted on the basis of gender" by penalizing the plaintiff for failing to walk, talk, dress and groom herself "more femi­ ninely." Id. at 235, 240. 240 See supra notes 23-26 and accompanying text. 241 MeritorSav. Bank v. Vinson, 477 U.S. 57, 67 (1986). 24 2 Waag v. Thomas Pontiac, Buich, GMC, Inc., 930 F. Supp. 393, 400 n.5 (D. Minn. 1996) (citing 110 CONG. REC. 2577, 2583 (1964)). 310 NEW YORK CITY LAW REVIEW [Vol. 7:275

reconciling the body of law governing same-sex harassment claims, she may have felt it would be too far-reaching to enumerate the scope of the "because of sex" requirement more precisely. The Court recognized that sex-based harassment, like other forms of sex-based discrimination, is actionable irrespective of the sex of the plaintiff or the sex of the perpetrator, and acknowledged that con­ duct need not be based on sexual desire to be based on sex. In doing so, the Court, in several important respects, reconciled the same-sex sexual harassment doctrine with established standards for adjudicating sexual harassment claims. In light of Justice Gins­ burg's incremental approach to decision-making, it is possible she chose to leave more radical developments for another day.

3. Davis v. Monroe County Board of Education In 1999, the Supreme Court decided another school sexual harassment case, but this time involving two students. Davis v. Monroe County Board of Education243 was a sex discrimination lawsuit , brought by the mother of LaShonda Davis who was sexually harassed by G.F., a fifth grade classmate.244 Sitting behind her in the classroom, in physical education class, and in the hallways, G.F. would try to touch her breasts and vaginal area saying, "I want to get in bed with you" and "I want to feel your boobs."245 He rubbed his body against hers in the hallways, put a doorstop in his pants, and pretended to have sex with her during physical education class.246 LaShonda complained about each incident, but neither her teachers nor the elementary school's principal responded.247 Davis tried to get away from G.F. by asking for her seat assignment to be changed, but it was three months before the teacher let her move.248 Even then, G.F., who was never disciplined by the school, continued to sexually harass her in the hallways.249 She told her mother that she "didn't know how long she could keep him off her," and worried that the only way she could get him to stop would be to kill herself.250 It was the criminal justice system, not the school, that finally put an end to the harassment: G.F. was arrested for sexual battery and he pied guilty to the charge in juvenile

243 526 U.S. 629 (1999). 244 Id. at 633. 245 Id. 246 Id. at 634. 247 Id. at 635. 248 Id. 249 Id. at 634. 250 Id. 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 311 court.251 A divided Supreme Court affirmed the legal obligation of schools to protect students from severe and pervasive sexual harass­ ment by other students.252 The decision, authored by Justice O'Connor, with Justices Stevens, Souter, Ginsburg and Breyer join­ ing, recognizes that student-on-student sexual harassment disrupts a student's ability to learn. The Court, however, applied the same stringent standard it adopted in Gebser, holding that a school board may be held liable only where it exhibits "deliberate indifference" to sexual harassment of which it has actual knowledge.253 The Court again rejected the use of agency principles, which it freely applied in the employment context, to impute liability to the school board-the school board will only be liable for "its own deci­ sion to remain idle in the face of known student-on-student harass­ ment in its schools."254 Like the Gebser case, while recognizing the problems assqciated with harassment of a student, the Court actu­ ally imposed higher standards on students suing for sexual harass­ ment than ori similarly situated adult employees.255 Justice K~nnedy, in a dissent that Chief Justice Rehnquist and Justices Scalia and Thomas joined, disagreed with the majority's assertion that a school "subjects" its students to discrimination when it knows of peer harassment and fails to respond appropri­ ately.256 He pointed out that a violation of Title IX does not occur any time a student is subjected to discrimination, but rather, the student must be "subjected to discrimination under [an] education program or activity."257 To impose liability under Title IX, the dis­ crimination must actually be controlled by the school. 258 Whereas a teacher's conduct, in some cases, may be authorized by the school or be in accordance with its policies, a student's conduct "cannot be said to be 'under' the school's program or activity as required by Title IX."259 Justice Kennedy pointed out that "[m]ost public schools do not screen or select students, and their power to disci­ pline students is far from unfettered."260 Accordingly, the dissent­ ers, who espoused the rule in Gebser that could potentially impute

251 Id. 252 Id. at 633. 253 Id. 254 Id. at 641. 255 See supra note 123 and accompanying text. 256 Davis, 526 U.S. at 658 (Kennedy, J., dissenting). 257 Id. at 659 (Kennedy,]., dissenting) (citing 20 U.S.C. § 168l(a)). 258 Id. at 660 (l

IV. CONCLUSION In eight gender discrimination cases heard by the Supreme Court over the last ten years, Justice Ginsburg has deftly managed to navigate the fine line between advocating for the rejection of gender-role stereotypes that repress women and maintaining col­ legiality among judges, proving that her twin objectives of gender equality and collegiality are not mutually exclusive. Despite her desire to foster cooperation among judges and her distaste for separate opinions written to satisfy personal ego, Justice Ginsburg has been surprisingly assertive in writing concur­ ring and dissenting opinions. During her first nine terms she ex­ ceeded the Court's average for dissents and was above average for concurrences in five terms, often to advance her agenda of gender equality.261 She authored the majority opinion of a landmark gen­ der discrimination case with an expansive view of the Equal Protec­ tion Clause,262 and has spoken out on issues ranging from the

261 Ray, supra note 69, at 673-74, 654; see also Smith et al., supra note 180, at 78 (stating that during Justice Ginsburg's first term, " [w] ith respect to concurring opin­ ions, she was tied for third among all justices in the frequency of explaining her views when she agreed with the outcome ofa case but did not write the majority opinion."). 262 See U.S. v. Virginia, 518 U.S. 515 (1996). 2004] TWIN PILLARS OF JUDICIAL PHILOSOPHY 313 improper use' of gender classifications based on stereotypes,263 to whether sex-based classifications are inherently suspect.264 She con­ tinues in her tradition of advocating for legal rules that can be ap­ plied neutrally to either sex, 265 and has hinted that, despite the importance of precedent, judicial standards are not set in stone. 266 Primarily, she has written separately to point out an unwar­ ranted deviation from precedent, as in the Miller case,267 or to re­ solve an issue unresolved by the lead opinion, as in Gebser. 268 She has advocated overruling precedent only in unique circumstances. In one unusual case, she wrote separately to lay the groundwork for future consideration of the intermediate scrutiny standard cur­ rently adopted for gender classifications,269 an issue she had fought for in incremental steps over the course of her career. Because this would overrule years of established precedent and was beyond the scope of her typical separate opinion, she advocated this change in a footnote. Subsequently, she has been hesitant to follow up on the issue in later cases. At the same time, her judicial style has generated "balanced, intelligent opinions reflecting a profound sense and respect for precedent."270 In style, she has been consistent in maintaining a narrow focus in her separate opinions, pointing out differences and failures of the lead opinion without undermining public confi­ dence in the judiciary. Indeed, her Burlington concurrence was so brief it teetered on defeating the purpose for writing separately.271 She has exercised restraint when developing new doctrine, going only so far as necessary for the case at hand, and building upon previous precedent whenever possible. She speaks in a temperate voice and emphasizes points of agreement whenever applicable.272 With one exception,Justice Ginsburg has abstained from forcefully critiquing her colleagues' legal reasoning.273 In deference to her collegiality philosophy, however, she has,

263 See MiUer v. Alhright, 523 U.S. 420, 460 (Ginsburg, J., dissenting). 1 264 See Hanis v., Forklift Sys. Inc., 510 U.S. 17, 26 (Ginsburg, J., concurring). 265 See Miller, 523 U.S. at 460 (Ginsburg, J., dissenting). 266 See Harris, 5,10 U.S. at 26 (Ginsburg, J., concurring). 267 See Miller, 523 U.S. at 469-70 (Ginsburg, J., dissenting). 268 See Gebser, 524 U.S. 274, 307 (1998) (Ginsburg, J., dissenting). 269 See Harris, 510 U.S. at 26 (Ginsburg,]., concurring). 270 Kushner, supra note 36, at 184. 271 See Burlington, 524 U.S. at 766 (Ginsburg, J., concurring). 272 See, e.g., Harris, 510 U.S. at 26 (Ginsburg,]., concurring); Burlington, 524 U.S. at 766 (Ginsburg, J., concurring). 273 See Miller, 523 U.S. at 460-71 (Ginsburg, J., dissenting) (uncharacteristically cit­ ing and deconstrtICtingjustice Stevens' opinion for the Court). 314 NEW YORK CITY LAW REVIEW [Vol. 7:275 on occasion, slighted her other long-standing passion-gender equality. In those cases where she did not write separately, she for­ feited the opportunity to advance the dialogue on gender equality that she had put on the table,274 or to put the Court and the public on notice that precedent had been dangerously subverted.275 Jus­ tice Ginsburg's lack of consistency as a vocal gender advocate has the potential to undermine her future separate opinions because she has unwittingly sent the message that she will not always follow through on her admonitions to her colleagues. She also failed to take several opportunities to clarify rules set forth in a majority opinion,276 and in one case, she even signed on to a majority opin­ ion that applied a rule to which she had previously objected.277 On balance, Justice Ginsburg has maintained fidelity to her twin philosophies of collegiality and gender equality jurisprudence. Although only one voice amongst nine, her moderate tendency on the Court, both in substance and tone, has softened the intemper­ ateness of some of her colleagues. Her decorum is rare in an era that prizes bold declarations over reflection and serves as a stan­ dard many in the law and media would do well to emulate and which could further an enlightened dialogue on such lightning rod topics as abortion and same-sex marriage.

274 See JE.B. v. Alabama ex rel. T.B., 511 U.S. 127, 137 n.6 (1994), where Justice Ginsburg failed to write a separate concurring opinion although Justice Blackmun publicly refused to address and thus resolve the Harris footnote. 275 See Nguyen v. INS, 533 U.S. 53 (2001); Oncale, 523 U.S. 75 (1998). 276 See, e.g., id. 2 7 1 See Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). REAL DIFFERENCES AND STEREOTYPES-TWO VISIONS OF GENDER, CITIZENSHIP, AND INTERNATIONAL LAW

M. Isabel Medina*

Yes Geneyieve does not know it. What. That we are seeing Caesar. 1 Caesar kisses. Kisses today. Caesar kisses every day. Genevieve does not know that it is only in this country that she could spe~k as she does. She does ~peak very well doesn't she. She told them that there was not th~ slightest intention on the part of her countrymen to eat the fish that was not caught in their country. In this sh~ was mistaken. 1

Primary tesistance to globalization today has been directed at economic and market forces, but it also has found voice in claims that globaliz~tion imposes Western or American cultural, legal, and political values on other cultures. Resistance to globalization, whether through terrorist violence like that directed at the World Trade Center in 2001, or through increasingly oppressive immigra­ tion and detention policies directed against noncitizens,2 is un­ likely to pre~ent the continuing development of a global order. The United States has a strong interest in facilitating that develop­ ment and ensuring that a global order incorporates a strong com­ mitment to ~uman rights. Because it is a powerful country-at times too mu~h a Caesar-American efforts to shape globalization

* Ferris Family Professor of Law, Loyola University New Orleans School of Law. This article was researched in part while visiting the University of Athens, Hellas as a Fulbright Scholar and parts were presented as a lecture at the University of Leipzig and the Technical University at Chemnitz, German Fulbright Lecture Series, in the spring of 2003. I am grateful for the support of the Council for International Ex­ change of Scholars and the Fulbright Foundation. In addition, I acknowledge the support of the Alfred J. Bonomo Sr. family and the Rosario La Nasa Memorial Schol­ arship Fund, and I thank Elizabeth Sconzert for research assistance. My colleagues Kathryn Venturatos Lorio, Nancy Anderson and Barbara Ewell enjoy my sincere ap­ preciation for their insights and comments. 1 Gertrude Stein, Ladies' Voices, Act 3, in SELECTED OPERAS AND PLAYS OF GERTRUDE STEIN 3, 4 Uohn Malcolm Brinnin, ed., 1970). 2 See, e.g., MARK Dow, AMERICAN GULAG INSIDE U.S. IMMIGRATION PrusoNS (2004); see also American' Bar Association, Task Force on Treatment of Enemy Combatants, Report to the Hquse of Delegates, Feb. 10, 2003.

315 316 NEW YORK CITY LAW REVIEW [Vol. 7:315 are likely to be accompanied by claims that the United States merely seeks to impose its own values on the world community. It is difficult to distinguish between policies and practices that "im­ pose" values on unwilling cultures, and policies and practices that foster communication, consensus, and adherence to particular val­ ues. However, characterizing efforts to develop communication and consensus on national and global adherence to human rights norms as "imposition" of values, serves only to frustrate communi­ cation and change. One value commonly perceived to be at variance between Western and other cultures is gender equality. The extent to which adherence to gender equality represents a variance between cul­ tures is best acknowledged so that emergence of an international world order is accompanied by adequate safeguards to ensure com­ pliance at national and global levels with norms of gender equality. One method of promoting and facilitating greater understanding and consensus on gender equality as part of an international legal world order is continual consideration of international legal norms in constitutional adjudication. The United States may be less like Caesar if in developing national constitutional norms it considers issues that have global dimensions within a global context. Justice Ruth Bader Ginsburg is one jurist willing to pursue this approach. It is, of course, appropriate to consider Justice Gins­ burg's decisions in the context of gender equality, for her legacy is well known and well regarded.3 For some years now, Justice Gins­ burg's work has illustrated an awareness that our place in the global order requires consideration of international norms and practice in the formulation of our own national norms.4 Future dis­ cussions of how globalization should or may be shaped must in­ clude a guarantee of gender equality that transcends national, religious, and cultural borders. Acknowledging our own missteps in accepting gender equality as a norm, and placing our legal de­ velopments in the global context may help build consensus and acceptance of gender equality throughout the world community. I explore three ideas in this article. First, the United States Supreme Court's decisions in citizen­ ship cases fail to articulate a clear and coherent concept of citizen-

3 Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 TuL. L. REv. 451 (1978). 4 See Ruth Bader Ginsburg & Deborah Jones Merritt, Fifty-First Cardozo Memorial Lecture Affirmative Action: An International Human Rights Diawgue, 21 CARDOZO L. REv. 255 (1999). 2004] REAL DIFFERENCES AND STEREOTYPES 317 ship and how citizenship has been informed by gender.5 Justice Ginsburg's dissenting opinion in Miller v. Albright is an exception.6 Miller involved a claim by the non marital daughter of a U.S. citizen father that the statute that denied her citizenship was unconstitu­ tional because it treated nonmarital children of U.S. citizen fathers differently from nonmarital children of U.S. citizen mothers.7 Five justices affirmed the lower court's dismissal of the nonmarital child's claim but no majority opinion emerged.8 Justice Ginsburg dissented, along with Justices Breyer and Souter.9 Justice Gins­ burg's opinion detailed the extent of gender discrimination in prior U.S. citizenship statutes and the efforts of the more modem Congress to eliminate gender bias from citizenship and naturaliza­ tion statutes.10 But Justice Ginsburg's Miller dissent is atypical of majority decisions in citizenship and immigration cases. In the view of the Court, citizenship, in the context of gender, means little for the individual; it secures no rights or responsibili­ ties, including the right to vote or to reside in one's country with one's spouse.11 Paradoxically, in other contexts, such as deporta-

5 Scholarship on citizenship has flourished in the past few decades. See, e.g., CITI­ ZENSHIP TODAY: GLOBAL PERSPECTIVES AND PRACTICES (T. Alexander Aleinikoff & Douglas Klusmey'er, eds., 2001); ROGERS M. SMITH, CIVIC IDEALS: CONFLICTING V1s10Ns OF CmzENSHIP rN U.S. HISTORY (1997). The dialogue on citizenship extends not just to questions of membership, but, of course, to questions of equality. See Kenneth L. Karst, The Supreme Court, 1976 Term Foreword: Equal Citizenship Under the Fourteenth Amendment, 91 I-ljRv. L. REv. l, 4 (1977); see also, e.g., Andrew Koppelman, vVhy Dis­ crimination Against Ll'.sbians and Gay Men is Sex Discrimination, 69 N.Y.U. L. REV. 197 (1994). In this articl~, I do not attempt to provide a substantive and comprehensive defi­ nition or concept of citizenship. Nor do I explore the question of membership and the extent to which citizenship should matter in the law. For a discussion of human rights and consti~utional protections, see GERALD L. NEUMAN, STRANGERS TO THE CON­ STITUTION ( 1996). 6 Miller v. Albright, 523 U.S. 420, 460-68 (1998) (Ginsburg, J., dissenting). See also Nguyen v. INS, 533 U.S. 53, 74 (2001) (O'Connor, J., dissenting). 7 Miller, 523 U.S. at 429. 8 Justices Stevens and Rehnquist reached the merits of the case and found no Equal Protection violation. Miller, 523 U.S. at 423-45.Justices O'Connor and Kennedy reasoned that th~ daughter lacked standing to assert her U.S. citizen father's claims and, thus, did not consider the merits of the Equal Protection claim. Miller, 523 U.S. at 445-52 (O'Connor, J., concurring on the judgment). justice Scalia believed that citizenship determinations are plenary with Congress, thus, the Court has no power to confer citizenship "on a basis other than that prescribed by Congress." Miller, 523 U.S. at 452-59 (Scalia, J., concurring). 9 Miller, 523 U.S. at 460-71 (Ginsburg,]., dissenting); 523 U.S. at 471-85 (Breyer, J., dissenting). 10 Miller, 523 U.S. at 460-68. 11 See U.S. ex rel. Knauf!v. Shaughnessy, 338 U.S. 537 (1950); Chang Chan v. Nagle, 268 U.S. 346 (1925); see also Mackenzie v. Hare, 239 U.S. 299 (1915); Low Wah Suey v. Bachus, 255 U.S. 460 (1912) (wife of Chinese-born U.S. citizen could be deported with 318 NEW YORK CITY LAW REVIEW [Vol. 7:315 tion or detention, citizenship may mean everything, including the right to live in the country where one has been raised, and the right to be close to the only family one has known.12 In describing the interplay between the Supreme Court's de­ velopment of a constitutional norm on gender and citizenship, I explore cases involving acquisition or loss of citizenship, the con­ text in which the Court has most often developed constitutional norms of citizenship. 13 The Court's concept of citizenship, how­ ever, is informed by other factual contexts. Some of those contexts are helpful in coming to an understanding of the Court's vision of citizenship and gender. Thus, I consider cases in which the Court has decided a claim of sex discrimination, whether implicitly or explicitly, and in which some aspect of citizenship is discussed or is material to the resolution of the case. 14 I include cases that deal with gender and with activities that are viewed today as activities available only to citizens, like voting and the ability to reside in one's country, which is another way to describe freedom from deportation. Second, I explore the idea that American adherence to norms of gender equality is inconsistent and remains in flux. This theme is developed by examining Supreme Court decisions on gender dis­ crimination in the context of citizenship. These decisions reflect the tensions and discordant views of gender equality that continue to dominate global and national views about gender and the proper role of women and men in transmitting or constructing citi­ zenship in national or transnational societies. Notwithstanding a well developed legal structure to combat gender discrimination in minimal process on the grounds that she had been found in a house of prostitution); Yeung How v. North, 223 U.S. 705 (1912). 12 Demore v. Kim, 538 U.S. 510 (2003); Zadvydas v. Davis, 533 U.S. 678 (2001); Nguyen v. INS, 533 U.S. 53 (2001); see also U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). 13 Nguyen, 533 U.S. 53; Rogers v. Bellei, 401 U.S. 815 (1971); Mackenzie, 239 U.S. at 299. Other cases deal directly with acquisition or loss of citizenship. See, e.g., Afroyim v. Rusk, 387 U.S. 253 (1967) (holding that Congress lacks power to involuntarily divest a person of her or his United States citizenship); Schneiderv. Rusk, 377 U.S. 163 (1964) (holding that a statute providing that a naturalized citizen loses her or his citizenship after continuous residence for three years in her or his country of origin violates the Fifth Amendment's Due Process Clause); Perkins v. Elg, 307 U.S. 325 (1939) (holding that a child born in the United States of alien parents is a U.S. citizen and is not subject to deportation because her parents had taken her from the United States to Sweden as a child where she resided until reaching the age of majority); Wong Kim Ark, 169 U.S. at 649 (holding that the detention of and exclusion from the United States of an adult born in United States of Chinese parents is unwarranted because he is a citizen of the United States). 14 See U.S. v. Virginia, 518 U.S. 515 (1996); Minorv. Happersett, 88 U.S. (21 Wall.) 162 (1874). 2004] REAL DIFFERENCES AND STEREOTYPES 319 the United States, the Supreme Court's jurisprudence reflects an inconsistent and tenuous adherence to gender equality as a consti­ tutionally enforceable norm. This article explores the Court's modern vision of gender and 15 citizenship through two cases, United States v. Virginia ( VMI), au­ thored by justice Ginsburg, and Nguyen v. Immigration and Naturali­ zation Service, 16 the case in which a majority of the Court upheld the constitutionality of the statute challenged in Miller. 17 These cases make clear that in the context of American society, stereotypes about sexual behavior, maternity, paternity, and parenting, in turn influenced by stereotypes about class, race, and ethnicity, remain primary stumbling blocks to substantive gender equality as well as to a comprehensive and consistent view of citizenship. Third, globalization is defined as the emergence and contin­ ued development of an international world order. Globalization in one sense is a tautology. It merely describes the interrelatedness and interdependence of the earth and its organisms. Formal recog­ nition, wheth:er voluntary or involuntary, of this interdependence is inevitable. ylobalization, however, does not eliminate difference. Differences ai;e an inherent aspect of humanity. Differences are an inherent part of the American legal system and of American soci­ ety, which ha~, since its founding, perceived itself at least in part as a heterogenebus society. At least two constitutional principles sup­ port the view that America, since its founding, is a heterogeneous society: the Fi'rst Amendment, which implicitly acknowledges diver­ sity of thought, speech and religion;18 and federalism, which im­ plicitly recognizes variance among states and local communities. 19 Tolerance for difference, necessary for a heterogeneous society to thrive, cannot allow differences to subvert basic human rights. Slav­ ery serves as an example of the extent to which tolerance may ac­ commodate differences. Such oppression is inconsistent with a free and just society. Globaliz~tion poses potent challenges to strong and continued adherence to norms of gender equality.20 A substantial number of

15 518 U.S. 51,5 (1996). 16 533 U.S. 53 (2001). 17 Miller v. Albright, 523 U.S. 420 (1998). 18 U.S. CONST: amend. I. 1!l U.S. CONST. amend. X. 20 VICKI C. JACKSON & MARK TusHNET, COMPARATIVE CONSTITUTIONAL LAw 1136-38 ( 1999). Some authors question the usefulness of culture as a prism through which to view or judge gei;ider bias. See, e.g., Leti Volpp, Feminism Versus Multiculturalism, 101 CoLUM. L. REv. 1181 (2001); Leti Volpp, Talking "Culture": Gender, Race, Nation, and the Politics of Multiculturalism, 96 CO LUM. L. REv. 1573 ( 1996). As Professor Vol pp 320 NEW YORK CITY LAW REVIEW [Vol. 7:315 the world's societies and cultures formally endorse the subordina­ tion ofwomen.21 Even in Western societies, consensus on what gen­ der equality means or necessitates is lacking.22 In the United States, for example, sexual harassment and gender discrimination occur frequently in the workplace and labor statistics reveal a substantial wage differential between women and men.23 Sexual harassment and assault remain a serious problem in educational institutions. 24 Although women are a slight majority of the population in the United States, women still continue to be underrepresented in leadership positions in the corporate world, in the professional world and in the political world.25 Minimal representation on enti- contends, the difficulties inherent in examining cultural differences on gender are substantial; it may be that different approaches to gender bias may be better studied by reference to religion, the nation-state or to a regional community. The differ­ ences, whether cultural, legal, political, or religious should be examined, not ignored or excused. 21 See Pamela Constable, Afghan Women Are Still Policed: Special Morals Guard Holds Sway in Heral, Rights Groups Says, WASH. PosT, Dec. 17, 2002, at A24; Seth Mydans, In Paldstan, Rape Victims Are the "Criminals," N.Y. TIMES, May 17, 2002, at A3; Asra Q. Nomani, She Shouldn't Be Stoned to Death-None of Us Should, WASH. PosT,June 1, 2003, at Bl; Norimitsu Onishi, Mother's Sentence Unsettles a Nigerian Village, N.Y. TIMES, Sept. 7, 2002, at A3; Charles Trueheart, Canada Offers Refuge to Persecuted Women, Cm. SuN­ TIMES, Mar. 3, 1993, at 9. 22 See, e.g., Sean Pager, Strictness vs. Discretion: The European Court ofJustice's Variable Vision of Gender Equality, 51 AM. J. COMP. L. 553 (2003). 23 "In Fiscal Year 2002, EEOC [U.S. Equal Employment Opportunity Commission] received 14,396 charges of sexual harassment." EEOC, Sexual Harassment (Jan. 6, 2004), at http:/ /www.eeoc.gov/types/sexual_harassment.html (on file with the New York City Law Review). Further, in that same year, the EEOC received 25,536 charges of sex-based discrimination. EEOC, Sex-Based Discrimination (Jan. 6, 2004) al http:/ I www.eeoc.gov/types/sex.html (on file with the New York City Law Review). See also BUREAU OF LABOR STATISTICS, U.S. DEPARTMENT OF LABOR, HOUSEHOLD DATA ANNUAL AVERAGES (Jan. 10, 2004), available at http://www.bls.gov/cps/cpsaat39.pdf; Stepha­ nie Boraas & William M. Rodgers III, How Does Gender Play a Role in the Earnings Gap? An Update, 126 MONTHLY LAB. REv. 90 (2003) available at www.bls.gov/opub/mlr/ 2003/03/art2full.pdf. 24 See United States v. Morrison, 529 U.S. 598, 634 (Souter, J., dissenting) (2000); Davis v. Monroe County Bd. ofEduc., 526 U.S. 629 ( 1999); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998); Franklin v. Gwinnett County Pub. Schs., 503 U.S. 60 (1992): see also Christine N. Carlson, Invisible Victims: Holding the Educational System Liable for Teen Dating Violence at Schoo~ 26 HARV. WOMEN'S L. J. 351 (2003); Nan Stein, Bullying or Sexual Harassment? The Missing Discourse of Rights in an Era of Zero Tolerance, 45 AR1z. L. REv. 783 (2003); DONNA EunEN, AMERICAN AssocIATION OF UNIVERSITY PROFESSORS, SEXUAL HARASSMENT IN THE ACADEMY. SOME SUGGESTIONS FOR FACULTI' POLICIES AND PROCEDURES (2002), at http:/ /www.aaup.org/Legal/info%20outlines/legsexha.htm (on file with the New York City Law Review). 25 See Kirstin Downey, Survey Finds Few Female Directors: No Women Serve on Boards of 54 Fortune 500 Firms, WASH. PosT, Dec. 4, 2003, at E3; Karen Jacobs, Women Have Scaled Carporate Ladder, But Climb Continues to Be a Slow One, WALL ST.j., Nov. 12, 1999, at B4; Judy Mann, Pay Discrimination Is No Dirty Little Secret, WASH. PoST,June 15, 2001, at CS; Joseph Menn, Firsl Woman Named to Lead Blue-Chip Firm, L.A. T1MES,july 20, 1999, at 2004] REAL DIFFERENCES AND STEREOTYPES 321

ties such as the U.S. Supreme Court is accepted as sufficient.26 I further explore this theme by reference to the modern Greek ex­ perience and response to gender bias. Stereotypical views of the sexes are changing and events or developments have a way of out­ distancing views and attitudes; still, it clearly is a mistake to view the world as wholeheartedly endorsing the idea that the sexes are enti­ tled to equality of treatment and opportunity, and that this equality of treatment is enforceable by law. One aspect of tracking the growth of an emerging global legal order is the degree to which the Court considers international norms, decisions of international tribunals, or other nations' legal norms. The Supreme Court's reliance on international norms is sporadic and inconsistent. Although international conventions en­ dorse and support gender-equality norms,27 reliance on interna­ tional norms on the issue of gender is problematic because actual international practice is inconsistent or at least in substantial vari­ ance to the values expressed in conventions and treaties. In addi­ tion, international conventions contain provisions that allow states to derogate or ignore their obligations in times of emergency or for elusive arld flexible concepts such as "morality" or "public or­ der."28 Moreover, in the past, the Supreme Court has looked to

Al. For an international comparison, see also Solange De Santis, Canada Trails U.S. in Naming Women to Board, WALL ST.j.,Jan. 28, 1999, at Bl5; Charles Goldsmith, Norway Plans to Require Gender Equality in Greater Boardrooms, WALL ST. J., July 19, 2002, at A9. See also Jilian Mi ricer, Women Find Politics Still an Uphill Path, N.Y. TIMES, Dec. 28, 2003, at 14 LI. 26 See Bill Mi11fr, Saluting History That's Not Man-Made, at Ceremony, Pioneering Female judges Recall Firsts, WASH. PosT, Mar. 26, 1998, atJOl. See also Mike Allen & Charles Lane, Bu.sh Set for; High Court Battle; Strategy is to Nominate Ideological Conservative, WASH. PosT,Jan. 19, 2003, at Al; Charles Lane & Amy Goldstein, At High Court, a Retirement Watch: Rehnquist,• O'Connor Top List of Possibilities as Speculation on Replacement Craws, WASH. PosT, Jm~e 17, 2001, at A4; Robin Toner & Neil A. Lewis, Lobbying Starts as Groups Foresee Vacancy on Court, N.Y. TIMES, June 8, 2003, at Al. 27 Convention on the Elimination of all Forms of Discrimination Against Women ("CEDAW"), Annex to G.A. Res. 34/180, U.N. GAOR, 34th Sess., Supp No. 46, at 194, U.N. Doc. A/34}'46, Art. 4(l) (1979). But see Belinda Clark, The Vienna Convention Reservations Regime and the Convention on Discrimination Against Women, 85 AM. J. lNT'L L. 281 (1991) (reporting that CEDAW has attracted more reservations by states than any other humaii rights convention); William A. Schabas, Reservations to the Convention on the Eliminatior+ of all Forms of Discrimination Against Women and the Convention on the Rights of the Child, 3 WM. & MARY J. WOMEN & L. 79 (1997). The United States has not yet ratified CEDAW. See CEDAW: States Parties (2004) at http:/ /www.un.org/ womenwatch/daw/cedaw/states.html (on file with the New York City Law Review). See also African [Banjul] Charter on Human and Peoples' Rights, June 27, 1981, 21 l.L.M. 58, Art. 2 (1982) (entered into force Oct. 21, 1986). 28 See Universal Declaration of Human Rights, Art. 29 (2) which provides: In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose 322 NEW YORK CITY LAW REVIEW [Vol. 7:315 international norms in developing legal norms that allowed unbri­ dled governmental actions and discrimination of disfavored classes, for example, women or resident aliens.29 At other times, the Court has noted other nations' legal norms to more sharply delineate them from our own.30 Recently, some Justices have turned to inter­ national law and international practice in developing American constitutional norms.31 Justice Ginsburg, in particular, has placed what tends to be discussed in the literature as a national subject­ race discrimination and affirmative action-in the global context. Formal recognition and discussion of international law and the practices of other nations furthers our own ability to compre­ hend and develop our own legal institutions, processes, and norms. International norms and the actual practices of other countries serve not just as a barometer of global opinion but may serve also as a caution or warning of the tenuousness of that norm in the global order. Discussion of issues like citizenship, race and gender in their global context, rather than exclusively in their national

of securing due recognition and respect for the rights and freedom of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society. Universal Declaration of Human Rights, art. 29 (2), G.A. Res. 217A, U.N. Doc. A/810 (1948). See also Article 4 of the International Covenant on Civil and Political Rights: In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exi­ gencies of the situation, provided that such measures are not inconsis­ te.nt with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, lan­ guage, religion or social origin. INTERNATIONAL COVENANT ON CNIL AND POLITICAL RIGHTS, art. 4 (1), Dec. 16, 1966, 999 U.N.T.S. 171. Se,e also Oren Gross, "Once More Unto the Breach": The Systemic Failure of Applying the European Convention on Human Rights to Entrenched Emergencies, 23 YALE J. INT'L L. 437 (1998); Joan F. Hartman, Derogation from Human Rights Treaties in Public Emergencies-A Critique of Implementation by the European Commission and Court of Human Rights and the Human Rights Committee of the United Nations, 22 HARV. INT'L L. J. I (1981); Rosalyn Higgins, Derogations Under Human Rights Treaties, 48 BRIT. Y. B. INT'L. L. 281 (1978). 29 See, e.g., Fong Yue Ting v. United States, 149 U.S. 698, 707-11 (1893); Chae Chan Pingv. United States, 130 U.S. 581 (1889). 30 Se,e Laird v. Tatum, 408 U.S. l, 35-38 (1972) (Douglas,]., dissenting); Times Film Carp. v. Chicago, 365 U.S. 43, 78 (1961) (Douglas,]., dissenting); Perez v. Browne[~ 356 U.S. 44, 79 (1958) (Douglas, J., dissenting). 31 Se,e, e.g., Lawrence v. Texas, 123 S.Ct. 2472 (2003); Washington v. Glucksberg, 521 U.S. 702, 734 (1997); Zadvydas v. Davis, 533 U.S. 678, 707 (2001) (Kennedy,]., dis­ senting); see also Sandra Day O'Connor, Broadening Our Horizons: Why American Lawyers Must Learn About Foreign Law, 45 FED. LAw., Sept. 1998 at 20; Sandra Day O'Connor, Federalism of Free Nations, 28 N.Y.U. j.INT'L. L. & PoL. 35 ( 1996). 2004) REAL DIFFERENCES AND STEREOTYPES 323 context, may yield a richer font of approaches and solutions; it may also help build consensus. Moreover, issues like citizenship are in­ herently international and global. Citizenship is important because national and international legal norms make it important. To dis­ cuss citizenship and its meaning in isolation from the global con­ text is to ignore its role in the international order. These are functions that have been acknowledged by the Court in the past and which justify continued reference to international norms and the practice bf nations. Citizenship is particularly suited to study in reference to globalization, and gender because the relationship established by citizenship is at the heart of the modern nation-state. Interna­ tional and ot;her nations' citizenship norms share the sex bias of the United States.32 Thus, the international construction of citizen­ ship reflected the traditional and stereotypical understanding of the role that men and women were to play in society. Citizenship continues to be central to developing transnational or regional ar­ rangements like the European Union. Thus, it is informed and constructed by reference to international law. Citizenship, moreo­ ver, is likely to be affected by globalization in the years to come. The concept of global citizenship does not appear as unattainable as it may have during the twentieth century.33 Because citizenship continues to pe influenced by gender, discussions of global citizen­ ship should explore its role in norms of citizenship.34 In this article, I first discuss the Supreme Court's treatment of gender discrimination in the context of citizenship in the past. Then, I explore two visions.of citizenship reflected in the two most recent Court decisions exploring the constitutionality of inten­ tional gender discrimination, one of which was authored by Justice Ginsburg. Finally, I discuss Justice Ginsburg's use of international law in the development of constitutional law norms, and I urge its expansion in application as an appropriate model for continued internationaF dialogue on gender and citizenship, in particular, and in humap rights law, in general.

32 See Nguyen v. INS, 533 U.S. 53, 91-93 (2001) (O'Connor, J., dissenting). 33 PETER SINGER, ONE WORLD (2002). 34 It is beyond the reach of this article to fully discuss the role gender plays in today's construction of citizenship in international norms. See Kif Augustine-Adams, Gendered States: A Comparative Constmction of Citizenship and Nation, 41 Va.J. oflnt'l Law 93 (2000); Karen Knop, Relational Nationality on Gender and Nationality in International Law in C1TIZENSHIP TODAY, supra note 5. 324 NEW YORK CITY LAW REVIEW [Vol. 7:315

I. THE COURT ON CITIZENSHIP AND GENDER­ MISSED OPPORTUNITIES One of the earliest cases to challenge governmental discrimi­ nation on the basis of sex, citizenship, and suffrage is Minor v. Hap­ persett, decided by the Supreme Court in 1874.35 Virginia and Francis Minor sued the state of Missouri because it refused to regis­ ter Virginia Minor as a voter because she was not a male citizen of the United States.36 Virginia Minor brought her claim approxi­ mately a decade after passage of the Fourteenth and Fifteenth Amendments to the Constitution. Virginia Minor's challenge was based on the Fourteenth Amendment of the U.S. Constitution, which conferred citizenship on all "persons born ... in the United States."37 Moreover, she argued the amendment prohibited states from making laws that "abridge the privileges or immunities of citizens of the United States."38 As the Court put it, [t]he argument is, that as a woman, born or naturalized in the United States and subject to the jurisdiction thereof, is a citizen of the United States and of the State in which she resides, she has the right of suffrage as one of the privileges and immunities of her citizenship, which the State cannot by its laws or constitu­ tion abridge.39 The Court's logic reflected the plain language of the amend­ ment-" [ t] here is no doubt that women may be citizens."40 The Court reasoned that citizenship as a concept predated adoption of the Fourteenth Amendment. Citizenship, thus, was something pos­ sessed by the people who were members of a political community. Women were persons, the Court noted, and, thus, the mere fact that they were women did not preclude them from membership in the political community.41 In exploring what "citizens" or "citizen­ ship" might mean, the Court saw it grounded squarely on member­ ship in a political community. There cannot be a nation without a people. The very idea of a political community, such as a nation is, implies an association of persons for the promotion of their general welfare. Each one of the persons associated becomes a member of the nation

35 88 U.S. (21 Wall.) 162 (1875). 36 Minor v. Happersett, 53 Mo. 58 (1873), ajf'd, 88 U.S. (21 Wall.) 162 (1874). 37 U.S. CONST. amend. XIV, § 1. 38 Id. 39 Minor, 88 U.S. at 165. 40 Id. 41 Id. 2004] REAL DIFFERENCES AND STEREOTYPES 325

formed by the association. He owes it allegiance and is entitled to its protection. Allegiance and protection are, in this connec­ tion, reciprocal obligations.... [citizen] is understood as con­ veying the idea of membership of a nation, and nothing more.42 The Court's focus on membership in a political community to define citizenship might have, if developed, led the Court to a meaningful concept of citizenship. As that "and nothing more" in­ dicated, how~ver, the Court's understanding of what membership in a political community might mean or require was crabbed for it did not require that Virginia Minor be allowed to vote. Suffrage, according to this 1875 Court, was not one of the "privileges and immunities of citizenship."43 The Court's decision rested primarily on historical practice and is consistent with other post-Reconstruction cases interpreting the privileges and immunities clause of the Fourteenth Amend­ ment as a nullity.44 Suffrage, it noted, had been restricted since the founding of the republic; all states restricted .suffrage to white males of certain ages and some states restricted suffrage to only white, male, property owners.45 Moreover, the Court reasoned that citizenship was not necessary to suffrage, as a number of states al­ lowed noncitizen males to vote.46 Therefore, according to this Court, there seemed to be little link between suffrage and citizen­ ship or membership in a political community. The Court saw itself bound by historical practice despite the grand break with history the nation as a whole had witnessed in the Civil War, during Re­ construction, and passage of the Thirteenth, Fourteenth, and Fif­ teenth Amendments. For nearly,ninety years the people have acted upon the idea that the Constitution, when it conferred citizenship, did not necessa­ rily confer the right of suffrage. If uniform practice long contin­ ued can settle the construction of so important an instrument as the Constitution of the United States confessedly is, most cer­ tainly it has been done here. Our province is to decide what the law is, not to declare what it should be.47 Plainly, the Minor Court did not deal directly with the issue of gender equality. Nor does the opinion discuss in any depth what citizenship might mean or constitute in practice. The opinion con-

42 Id. at 165-66. 43 Id. at 171. 44 Slaughter House Cases, 83 U.S. 36 (1872). 45 See Minor, 88 U.S. at 172-74. 46 Id. 47 Id. at 177-78. 326 NEW YORK CITY LAW REVIEW [Vol. 7:315

tains no reference to the Equal Protection clause of the Fourteenth Amendment, nor does it consider or discuss how differences in sex roles typical of the late 1800s might be related to or affect citizen­ ship and the right to vote. Virginia Minor's own family, her role in the family as an educator and primary caretaker of her children, and therefore perhaps responsible for the passing of values to her children, is not considered relevant to her status as citizen.48 The Court speaks briefly about allegiance and protection, but leaves these terms undefined. Similarly, the Court fails to explain how Virginia Minor, as a citizen, is to express her allegiance. Allegiance, for this Court, appears to be an attitude rather than a value requir­ ing some recognition of rights and duties or responsibilities. In the United States, citizens have no obligation under the law to vote. A substantial number of United States citizens never vote, even in national elections.49 Thus, perhaps the Minor view that citi­ zenship as a practical matter is disconnected from the franchise is an accurate view. Of course, there is a vast difference between a citizen who chooses not to vote, and a citizen who is prohibited from voting. Notwithstanding the Court's view of the relationship between citizenship and suffrage is likely consistent with the under­ standing of the framers of the Fourteenth Amendment of the Con­ stitution.50 That same Congress adopted the Fifteenth Amendment securing the vote to all male citizens.51 Leaders of the women's movement resisted adoption of the Fourteenth and Fifteenth amendments because the amendments did not prohibit denial of the franchise to women.52 The Court's view of history is not inaccu­ rate; but this is simply not a Court willing to look to social or politi­ cal developments for an understanding of what the Constitution may require. The opinion is reminiscent of the Dred Scott decision in its homage to federalism, state powers, and its understanding of citizenship.53 Minor v. Happersett places plenary power to prescribe

48 See Karen Knop, Relational Nationality: On Gender and Nationality in International Law, in CITIZENSHIP TODAY, supra note 5, at 89-124. 49 See U.S. CENSUS BUREAU, VOTING AND REGISTRATION IN THE ELECTION OF NOVEM­ BER 2000 2 (2002) available at http://www.census.gov/prod/2002pubs/p20-542.pdf (reporting that sixty percent of voting-age citizens voted in the November 2000 presi­ dential election). 50 See Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH. U. L.Q. 161 (1979). 51 U.S. CoNST. amend. XV. 52 See]OAN HOFF, LAw, GENDER, AND JUSTICE: A LEGAL HISTORY OF U.S. WOMEN 143- 50 (1991). 5 3 Dred Scott v. Sandfard, 60 U.S. (19 How.) 393 (1857). This similarity has been noted by others including Joan Hoff. See HoFF, supra nore 52, at 173. 2004] REAL DIFFERENCES AND STEREOTYPES 327 citizenship in states; if citizenship is to be shared by women, then citizenship will secure few rights, privileges or immunities. The Court's concept of citizenship in Minor is singularly void of substance. To this late nineteenth century court, citizenship means membership in a political community. Membership, how­ ever, involves or requires only silent allegiance to the political com­ munity from the member, not active participation in the legislative and political processes. As a member, the citizen receives protec­ tion, but it is hot clear from whom or from what. Neither the con­ cept of allegiance nor protection are delineated or developed by the Court in any depth. The Court's construction of citizenship may have been affected by the need to develop a theory of citizen­ ship that allowed state and federal legislatures to continue to freely discriminate on the basis of sex. Forty-one years later, the Court remained constrained in its concept of citizenship and of gender equality. In Mackenzie v. Hare, the Court upheld a statute that divested American women, but not men, of their United States citizenship upon marriage to foreign nationals without the individual citizen's consent.54 Mackenzie, like Minor, raised the issue of gender equality in the context of voting. The case came to the Court in an interesting posture because it involved divestiture of citizenship from a person who continued to reside in the United States after her marriage.55 Ethel Mackenzie was born in California and met and married Gordon Mackenzie, a citizen of Gre'at Britain, in California.56 Both Ethel and Gordon Mackenzie resjded in California after their marriage.57 Upon rea:Ching the age of 21, approximately three years after her marriage, Mackenzie attempted to register as a voter.58 How­ ever, she was not allowed to register, because, the state argued, upon her marriage to a subject of Great Britain, she had ceased to be a citizen of the United States.59 In an opinion less than three pages long, the Court readily dismissed Ethel Mackenzie's contention that Congress lacked power to deprive her of citizenship.60 Instead, the Court consid-

54 Mackenzie v. Hare, 239 U.S. 299 (1915). Mackenzie has not been expressly over­ ruled by case Jaw, although its reasoning has been rejected by subsequent cases. See, e.g., Vancev. Terrazas, 444 U.S. 252 (1980); Afroyim v. Rusk, 387 U.S. 253 (1967). More­ over, the Ninetee11th Amendment arguably invalidated the statute. 55 239 U.S. at 306. 56 Id. 57 Id. 58 Id. at 306. 59 Id. GO Id. at 310-11. 328 NEW YORK CITY LAW REVIEW [Vol. 7:315 ered her expatriation to be "voluntary" because the expatriation occurred as a result of the marriage, "a condition voluntarily en­ tered into, with notice of the consequences."61 The statute imposed expatriation as a result of marriage only on American women, not American men. 62 The Court justified this discrimination, and the brevity of its opinion in denying relief to Ethel Mackenzie, citing an ancient principle, that of male dominance in a marriage: [i] t would make this opinion very voluminous to consider in de­ tail the argument and the cases urged in support of or in attack upon the opposing conditions. Their foundation principles, we may assume, are known. The identity of husband and wife is an ancient principle of our jurisprudence. It was neither accidental nor arbitrary and worked in many instances for her protection. There has been, it is true, much relaxation of it but in its reten­ tion as in its origin it is determined by their intimate relation and unity of interests, and this relation and unity may make it of public concern in many instances to merge their identity, and give dominance to the husband. It has purpose, if not necessity, in purely domestic policy; it has greater purpose and, it may be, necessity, in international policy. And this was the dictate of the act in controversy. Having this purpose, has it not the sanction of power?63 Citizenship, the Court acknowledged, had "tangible worth," but the Court did not discuss what this "worth" might constitute and why entering into a marriage might compromise or diminish the value of citizenship to a woman but not to a man, particularly in a case in which the couple resided in the woman's country of origin.64 Moreover, the Court did not explain why one's entitle­ ment to citizenship is diminished or affected by marriage, except by reference to the need to "give dominance to the husband."65 Perhaps it did not discuss the substance of citizenship in this case because, as in Minor, only suffrage was at issue. Since suffrage was not constitutionally necessary for women until passage of the Nine­ teenth Amendment in 1920, to divest a woman of citizenship due to marriage, without proof of the woman's actual intent to divest, did not appear as problematic as if the circumstances were changed and Ethel Mackenzie was facing deportation as a nonci-

61 Id. at 310, 312. 62 Id. at 307. 63 Id. at 311. 64 Id. 65 Id. 2004] REAL DIFFERENCES AND STEREOTYPES 329 tizen. Notwithstanding this, it is ultimately citizenship that Ethel Mackenzie lost, not simply the vote. Moreover, the Court notes that "a change of citizenship can­ not be arbitrarily imposed, that is, imposed without the concur­ rence of the citizen."66 But it is an illusory consent that the Constitution required-Ethel Mackenzie had in effect "voluntarily" relinquished her citizenship by marrying a foreign national.67 Despite the Court's adherence to a concept of marriage grounded in the woman's loss of personal identity, the Court, like the Minor v. Hapersett Court, ignores the role that a woman or mother plays in transmitting citizenship values to the children of the marriage. The Court does not discuss or consider the potential children of the Mackenzie marriage, their citizenship, and Ethel Mackenzie's role as primary caretaker and educator of her chil­ dren. Any children of this marriage, if born in the United States, would have been American citizens by birth. Because the family resided in California, they would have been embedded in Ameri­ can culture. The Court, however, does not dwell on the strange family dynami~ that it and Congress create; two noncitizen parents, one of them qriginally a native-born American citizen divested of her citizenshir, because of her decision to marry, raising American citizen childre~ on American soil. The children of this family have more and bett~r rights than either parent. Although the Court ne­ glects these aspects of citizenship and the mother's role in parent­ ing and educating her children, in the Mackenzie Court's view of the marital union, mothers, although subordinate to the father in the political arena, are primarily responsible for the care of the children. Since the father is relieved of primary responsibility for actual childcare, he is free to be active in public or political affairs, and to exercise political behavior like voting. Mothers, in this archaic view of the world, should have a primary role in instilling and developing citizenship values in children1 although legiti­ mately prohibited from living or practicing those values themselves. Five years, after the Mackenzie v. Hare decision, in 1920, the Nineteenth Ar(lendment was adopted prohibiting the denial of the franchise on account of sex in the United States.68 I Although the early cases dealing with gender and citizenship do not explore or focus on the relationship between parent and

66 Id. 67 SeeAfroyim v. Rush, 387 U.S. 253, 277 n.17 (1966) (Harlan,J., dissenting). 68 U.S. CONST. amend. XIX. 330 NEW YORK CITY LAW REVIEW [Vol. 7:315 child or mother and child, later cases make clear that the Court is conscious of the role that parents play in educating citizens. In fact, the Court resolved at least two of its decisions on gender and citi­ zenship by focusing on the parental relationship. In Rogers v. Bel­ ki,69 the Court stressed the value of the male parent in transferring citizenship. In Nguyen v. INS, on the other hand, little value is ac­ corded the male parent and, theoretically, at least, the mother's role in birthing is glorified to an uncomfortably illusive level.70 It may be that the act of giving birth itself may confer certain rights to prohibit government regulation of and interference with that par­ ent-child relationship. The right at issue here, however, the right for a biological parent to transmit citizenship to his or her biologi­ cal child, is at least as important to parents who raise the child or who exercise responsibility for the child, as to those who do not. BeUei, decided in 1971, reflects the Mackenzie view of sex and parenting. Bellei is not a case that, on its facts, posed a sex or gender dis­ crimination issue; it is a case in which the Court injected a note of sex discrimination. The case was brought by a young man, Aldo Bellei, born in Italy to an alien father and a U.S. citizen mother.71 At the time, citizenship statutes required that a child of a U.S. citi­ zen parent born abroad, whether mother or father, live continu­ ously in the United States for a period of at least five years between the ages of fourteen and twenty-eight.72 Failure to comply with the continuous residence requirement resulted in the child's loss of citizenship.73 The United States treated Aldo Bellei as an American citizen from birth until he was twenty-four years of age when the United States Embassy in Italy refused to renew his passport and informed him that he was no longer considered a citizen.74 The statute at issue in Belki was a gender neutral statute. Bellei argued that the statute was an unconstitutional violation of the Fifth Amendment Due Process Clause and the Fourteenth Amendment because it deprived him of his citizenship involuntarily.75 A three­ judge panel on the Circuit Court of Appeals agreed, reasoning that the Due Process Clause restricted Congress' power to divest per-

69 401 U.S. 815 (1971). 70 533 U.S. 53 (2001). 71 Rogers v. Bellei, 401 U.S. 815, 817 (1971). 72 Immigration and Nationality Act of 1952, Pub. L. No. 414 § 301 (b), 66 Stat. 236 (repealed 1978). 73 Bellei, 401 U.S. at 819-820. 74 Id. at 819. 75 BeUei v. Rusk, 296 F. Supp. 1247 (D.D.C. 1969), rev'd sub nom., Rogers v. Bellei, 401 U.S. 815 (1971). 2004] REAL DIFFERENCES AND STEREOTYPES 331 sons of citizenship absent fraud. 76 The Court determined that the kind of citizenship that Bellei possessed, derivative citizenship, was not the kind of citizenship protected by the Fourteenth Amendment. 77 Derivative citizenship by blood, jus sanguinis, under United States law was neither birth­ right nor naturalized citizenship, the Court reasoned.78 Since the Fourteenth Amendment spoke only to birth-right and naturalized citizenship, the Fourteenth Amendment simply did not apply to Bellei and other beneficiaries of derivative citizenship.79 Thus, de­ rivative citizenship, until formalized by a naturalization process, the Court indicated, was not protected by the Fourteenth Amend­ ment and impliedly, thus, received lesser protection under the Fifth Amendment Due Process Clause. The Court went on to hold that Congress had the power to place restrictions or conditions on derivative citizenship including a five-year pe~iod of continuous residence in the United States.80 The Court applied a 'reasonableness' standard; that is, as long as the conditions on retention of citizenship are not "unreasonable, arbitrary, or unlawful," they withstood constitutional challenge.81 The Court reasoned that dual citizenship posed a problem because the individual would be torn between two countries to which she or he owed allegi,ance.82 Thus, the Court noted, requiring a period of residence for a nonresident citizen was reasonable and consistent with promoting dedicated attachment to the United States.83 There are many problems with this decision, in particular, the idea that derixative citizenship is not protected by the Constitution to the same extent as birth-right citizenship or naturalized citizen-

76 Id. at 1252. 77 Bel!Ri, 401 U.S. at 827-31. 78 Id. 79 Id. at 827. The Court stated: [t]he central fact, in our weighing of the plaintiffs claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sen­ tence of the Fourteenth Amendment has no application to plaintiff Bel­ lei. He simply is not a Fourteenth Amendment-first-sentence citizen. 80 Id. at 834-36, 81 Id. at 831. 82 Id. at 832. Of course, the problems raised by dual citizenship are faced by indi­ viduals who are born in the United States as well by those who have one or two par­ ents who are foreign nationals. Thus, dual citizenship concerns do not appear to justify the different treatment of naturalized, birthright and derivative citizens. 83 Id. at 834-35. 332 NEW YORK CITY LAW REVIEW [Vol. 7:315 ship.84 The Court also ascribes the function of providing "an ex­ press constitutional definition of citizenship" to an earlier decision, United States v. Wong Kim Ark.85 The constitutional definition of citi­ zenship in Wong Kim Ark, however, was limited to determining who is a citizen under the Constitution, not what citizenship involved or what citizenship comprehensively meant under the Constitution.86 But it is the Court's injection of gender into a case that did not pose a gender issue on which I focus. The statute here did not differentiate between derivative citizenship passed through mothers and fathers. Regardless of whether the father or mother transferred citizenship, the child had to comply with the five-year continuous residence requirement.87 Nevertheless, the Court, in upholding the statute, comes close to resting its decision on the fact that Aldo Bellei had derived his citizenship through his mother, rather than through his father.88 The Court noted that prior to 1934, Congress had provided for derivative citizenship only for U.S. citizen fathers of children born abroad-maternal U.S. citizenship provided no benefit until 1934, so the Court omi­ nously warned, had Bellei been born before 1934, he would have had no claim to citizenship at all. 89 Still, the Court reasoned, the fact that Bellei took his citizen­ ship through his 111other justified the continuous residence re­ quirement and justified divesting him of citizenship involuntarily, even though the requirement was imposed by statute on children who derive their citizenship through either their father or their mother.90 As the Court noted, [t]he Congress has an appropriate concern with problems at­ tendant on dual nationality.... These problems are particularly acute when it is the father who is the child's alien parent and the father chooses to have his family reside in the country of his own nationality. The child is reared, at best, in an atmosphere of divided loyalty. We cannot say that a concern that the child's own primary alle­ giance is to the country of his birth and of his father's allegiance is either misplaced or arbitrary.91

84 Id. at 830-31. But see id. at 836-45 (Black, J., dissenting). 85 Id. at 830 (citing United States v. Wong Kim Ark, 169 U.S. 649 (1898)). 86 United States v. Wong Kim Ark, 169 U.S. 649, 687-694 (1898) (holding that a child born in the United States of Chinese parents is a citizen of the United States under the Fourteenth Amendment). 87 Id. at 831. 88 Id. at 831-32. 89 Id. at 826. 90 Id. at 831-32. 91 Id. at 831-32 (emphasis added) (citations omitted). 2004] REAL DIFFERENCES AND STEREOTYPES 333

The Bellei Court forgets, however, that residence in the United States failed to help Ethel Mackenzie. The Bellei Court seems al­ most hostile fo maternal derivative citizenship. However, a com­ plete tum-around comes about on maternal-derivative citizenship with the Nguyen Court.

II. THE MODERN COURT ON GENDER AND CITIZENSHIP-REAL DIFFERENCES AND 0VERBROAD GENERALIZATIONS ABOUT THE SEXES Nguyen v. INS was brought by a U.S. citizen father,Joseph Bou­ lais, and his foreign-born son, Tuan Anh Nguyen.92 The son, a nonmarital child, was born in Vietnam and was raised by his father almost from birth.93 Joseph Boulais brought his son back to the United States when Nguyen was six years old in 1975, when the government of South Vietnam fell to communist forces.94 Nguyen was admitted first as a refugee and then as a permanent resident alien on July 10, 1975.95 Boulais raised Nguyen in the United States, but did not go through the formal legai process acknowl­ edging his paternity while Nguyen was a minor.96 DNA testing con­ ducted after Nguyen's citizenship was placed in issue, however, established that it was 99.98% certain that Boulais was Nguyen's biological father.97 Nguyen did not go through a process of naturalization.98

92 Nguyen v. INS, 533 U.S. 53 (2001). The Court confronted the issue raised in the Nguyen case in Millerv. Albright, 523 U.S. 420 (1998). In Miller a majority of the Court did not consider the merits of the equal protection claim. For a discussion of MiUer and the role that gender stereotypes play in the case, see Augustine-Adams, supra note 34; see also Cornelia T. L. Pillard & T. Alexander Aleinikoff, Skeptical Scrutiny of Pl£nary Power: judicial and Executive Branch Decision Making in Miller v. Albright, 1998 SuP. CT. REV. 1 (1999). 93 Nguyen, 533 U.S. at 57. 94 Id. at 57. 95 Nguyen v. INS, 208 F.3d 528, 530 (5th Cir. 2000), affd b_v, 533 U.S. 53 (2001). Tuan was admitted as a lawful permanent resident alien on July 10, 1975 pursuant to the Indochinese Refugee Act, Title 1 of Pub. L. No. 95-145 (October 28, 1977). Re­ cord at 183. [Hereinafter Record.] (Reviewed by the autho.r and on file with the United States Circuit Court of Appeals for the Fifth Circuit.) 96 Nguyen, 208 F. 3d at 531. When the South Vietnamese fell, Tuan was in the care of Boulais's girlfriend's mother, as Boulais was out of the country. Tuan and his (even­ tually) step-grandmother fled Saigon with American assistance. His step-grandmother claimed to be Tuap 'smother at the time of their evacuation. The facts of Tuan 's birth and true parentage were never corrected in official records. Petitioner's Opening Brief at 5, Tuan Anh Nguyen v. INS, No. 98-60418 (Jan. 12, 1999). 97 Nguyen, 208,F. 3d at 530 n.l; see also Nguyen, 533 U.S. at 85 (O'Connor, J., dissenting). 98 Nguyen, 208 .F. 3d at 532 (stating that Nguyen claimed to have citizenship by birth and noting that birth and naturalization are the only two sources of citizenship). 334 NEW YORK CITY LAW REVIEW [Vol. 7:315

In 1992 when Nguyen was twenty-two, he was convicted of two counts of sexual assault on a child and sentenced to eight years in prison on each count.99 These offenses render a permanent resi­ dent alien deportable.100 In the American legal system, deporta­ tions of noncitizens are civil proceedings.101 These proceedings are entitled to little judicial review and aliens possess diminished con­ stitutional rights in defending themselves against deportation.102 Thus, for most aliens, deportations are accomplished through an administrative proceeding with little, if any, judicial review. 103 Three years after his conviction, in 1995, the Immigration and Naturalization Service (INS) initiated deportation proceedings against Nguyen as an alien who had been convicted of two crimes

99 Id. at 530. 100 Id. 101 Bugajewitz v. Adams, 228 U.S. 585, 590 (1913); see Fong Yue Ting v. United States, 149 U.S. 698 (1893);Javier Bleichmar, Deportation as Punishment: A Historical Analysis of the British Practice of Banishment and its Impact on Modern Constitutional Law, 14 GEO. lMMIGR. L. j. 115 ( 1999) . 102 Immigration & Naturalization Service v. Lopez-Mendoza, 468 U.S. 1032, 1034 (1984) (holding that the exclusionary rule does not apply in deportation proceedings). 103 The procedural history of the Nguyen case is instructive in conveying the laby­ rinthian, complex and confusing process deportation cases now follow in the Ameri­ can legal system. Only the most fantastic of legal fictions describes this process as due process. Nguyen was not represented by counsel at the hearing in which his de­ portability and citizenship status were initially determined. Aliens do not enjoy a con­ stitutional right to counsel in a deportation hearing. Moreover, the deportation determination was made by a judge who lacks Article III status and serves directly under the Attorney General. See M. Isabel Medina, judicial Review-A Nice Thing? Artic/,e III, Separation of Powers and the Il/,egal Immigration Reform and Immigrant Responsi­ bility Act of 1996, 29 CoNN.L.REv. 1525 (1997). That decision was appealed to the Board of Immigration Appeals (the "BIA") and the BIA dismissed the appeal. Nguyen, 208 F.3d 528, 531 (5th Cir. 2000), a.ffd by, 533 U.S. 53 (2001). Despite the fact that by the time the BIA decided the case Nguyen had submitted to the BIA the "Order of Parentage" from a Texas district court declaring Joseph Boulais to be Nguyen's father and declaring that "the parent-child relationship exists between the father and the child for all purposes," as well as the results of DNA testing, the BIA order dismissing Nguyen's appeal stated only that: "We note your claim that you are entitled to deriva­ tive United States citizenship. We observe that at your deportation hearing you admit­ ted that you are a native of Vietnam .... Having admitted your foreign birth, you are presumed to be an alien. However, you failed to provide the Immigration judge with evidence to support your citizenship claim. You have not sustained your burden of going forward with evidence establishing your claim of citizenship." Record supra note 95, at 62-63. Nguyen filed a motion to reconsider with the BIA, which apparently has never been decided. Id. Concurrently, Nguyen filed a habeas corpus petition in federal dis­ trict court challenging the deportation order and the denial of relief from deporta­ tion and asking for a declaratory judgment on citizenship. Id. Nguyen also appealed the BIA's order of deportation to the United States Court of Appeals for the Fifth Circuit. Id. at 531-32. 2004] REAL DIFFERENCES AND STEREOTYPES 335 involving moral turpitude, and as an aggravated felon. 104 Before the immigration judge, Nguyen argued that he was a citizen of the United States because he was the son of a United States citizen.105 The hearing was adjourned to allow Nguyen time to present evi­ dence of citizenship.106 At the second hearing, Nguyen's attorney withdrew. 107 The judge proceeded with the hearing with Nguyen unrepresented by counsel.108 Nguyen testified at that hearing that he was not a citizen of the United States but was a citizen of Viet­ nam.109 The immigration judge found him deportable. 110 Nguyen appealed to the Board of Immigration Appeals (BIA) .111 While the appeal to the BIA was pending, his father obtained an order of parentage from a state court, based on DNA testing. 112 The immi­ gration appellate court denied Nguyen's appeal on the grounds that he was n,ot a citizen because his father had failed to comply with 8 U.S.C. § 1409(a), which provides for transmission of citizen­ ship by birth 1to nonmarital children born abroad of U.S. citizen fathers and qoncitizen-mothers.113 Specifically, the BIA reasoned that Boulais had failed to legitimate their father-son relationship through some formal legal process prior to Nguyen's eighteenth birthday, as required by the statute.114 Nguyen appealed his case to the federal courts, which anyone claiming American citizenship

104 Nguyen, 533 U.S. 53, 57 (2001). 105 Id. 106 Nguyen, 208 F.3d at 530. 107 Id. 108 Id. 109 Id. 1 IO Id. at 531. 111 The BIA is the administrative appellate court that in most immigration cases provides the only'and final merit review of immigration judges' legal and factual find­ ings. BIA judges and the review process are subject to complete control by the Attor­ ney General of the United States. Recently, the immigration appeals process was streamlined to sharply curtail meaningful review of immigration judges' decisions. 67 Fed. Reg. 54878-54905 (Aug. 26, 2002). See Dia v. Ashcroft, F.3d 228 (3d Cir. 2003) (upholding streamlining regulations as consistent with the federal immigration stat­ ute and the due process clause of the Fifth Amendment); see also Soadjede v. Ashcroft, 324 F.3d 830 (5th Cir. 2003); Mendoza v. United States Atty Gen., 327 F.3d 1283 (11th Cir. 2003); Georgis v. Ashcroft, 328 F.3d 962 (7th Cir. 2003); Albathani v. INS, 318 F.3d 365 (1st Cir. 2003); DORSEY & WHITNEY LLP, STUDY CONDUCTED FOR: THE AMERICAN BAR AssoCIATION'CoMMISSION ON IMMIGRATION POLICY, PRACTICE AND PRO BONO, RE: BOARD OF IMMIGRATION APPEALS: PROCEDURAL REFORMS TO IMPROVE CASE MANAGE­ MENT 20 (2003), 'available at http:/ /www.dorsey.com/files/upload/DorseyABA_8mg PDF.pdf. 112 Nguyen, 208 F. 3d at 531. 113 Nguyen, 533 U.S. at 57. I 14 Nguyen, 208 F. 3d at 533. 336 NEW YORK CITY LAW REVIEW [Vol. 7:315 may do,115 on the grounds that he was a United States' citizen, be­ cause, to the extent that the statute that granted derivative citizen­ ship distinguished between the children of U.S. citizen mothers and U.S. citizen fathers and placed a more substantial burden on fathers than on mothers, the sex-based distinction violated the Equal Protection Clause of the Fourteenth Amendment.116 Under the statute, nonmarital foreign-born children of U.S. citizen mothers may claim derivative citizenship on the basis of a birth certificate identifying the U.S. citizen as the mother of the nonmarital child, as long as the mother was a U.S. citizen at the time of birth and as long as the mother had previously been physi­ cally present in the United States or one of its outlying possessions for a continuous period of at least one year. 117 The statute does not require that the mother have raised the child or have provided financial or other support to the child at any time after her or his birth. U.S. citizens who are fathers of nonmarital foreign born chil­ dren, however, are required, before the child reaches the age of eighteen, to take one of three affirmative steps, all of which require some form of legal process: legitimating, declaration of paternity under oath by the father, or court order of paternity.118 In addi-

115 8 U.S.C. § 1252(b) (5) (2004); see also 8 U.S.C. § 1105(a) (repealed 1996) (pre­ ceding 8 U.S.C. §1252(b) (5)). 116 Nguyen, 533 U.S. at 56-58. 117 8 U.S.C. § 1409 (c) (2004) (providing that: (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previ­ ously been physically present in the United States or one of its outlying possessions for a continuous period of one year). 118 Id. at §1409(a) (providing that: § 1409. Children born out of wedlock (a) The provisions of paragraphs (c), (d), (e), and (g) of section [1401 of this title], and of paragraph (2) of section [1408 of this title], shall apply as of the date of birth to a person born out of wedlock if- ( l) a blood relationship between the person and the father is estab­ lished by clear and convincing evidence, (2) the father had the nationality of the United States at the time of the person's birth, (3) the father (unless deceased) has agreed in writing to provide finan­ cial support for the person until the person reaches the age of 18 years, and ( 4) while the person is un

(B) the father acknowledges paternity of the person in writing under oath, or (C) the paternity of the person is established by adjudication of a com­ petent court. (b) Except as otherwise provided in section 405 [of this Act], the provi­ sions of section [140l(g) of this title] shall apply to a child born out of wedlock on or after January 13, 1941, and before December 24, 1952, as of the date of birth, if the paternity of such child is established at any time whil~ such child is under the age of twenty-one years by legitimization. (c) Notwithstanding the provision of subsection (a) of this section, a person born, after December 23, 1952, outside the United States and out of wedlock shall be held to have acquired at birth the nationality status of his mother, if the mother had the nationality of the United States at the time of such person's birth, and if the mother had previ­ ously beer\ physically present in the United States or one of its outlying possessions for a continuous period of one year). 119 Id. at §1409(a)(l). 120 Id. at §140~(a)(3). 121 Nguyen v. INS, 208 F.3d 528 (5th Cir. 2000), a.IJ'd by 533 U.S. 53 (2001). 122 Nguyen, 533 U.S. 53, 60 (2001). Justice Kennedy wrote the majority opinion, joined by Chief Justice Rehnquist and Justices Scalia, Thomas, and Stevens. Justice O'Connor, joined by Justices Ginsburg, Souter, and Breyer, wrote a dissenting opin­ ion. Id. at 74 (O'Connor, J., dissenting). 123 Id. at 61. 124 Id. at 64-65, 338 NEW YORK CITY LAW REVIEW [Vol. 7:315 according to the court, because of the biological difference in ac­ tual birth between mothers and fathers. 125 As to the first interest, the Court stated that mothers and fathers are not similarly situated with regard to the proof of biological parenthood because the mother will always be at the birth itself. 126 As the Court noted, " [ t] he mother's status is documented in most instances by the birth certificate or hospital records and the witnesses who attest to her having given birth," and giving birth is generally incontrovertible proof of the biological tie between mother and child. 127 The fa­ ther, on the other hand, does not have to be present at the birth, and even if he is, his presence is "not incontrovertible proof of fatherhood." 128 Since they are not similarly situated vis a vis the proof of biological parenthood, there is no constitutional require­ ment that the government treat them similarly. To be sure, this is not a court looking toward the future of human biology and birth, not even considering the reality of assisted reproductive technol­ ogy and how alternative human reproduction techniques might af­ fect its concept of derivative citizenship.129 Similarly, this Court is not interested in an actual blood-tie or "biological parenthood" whatever that term might mean, nor does it require that Congress be interested in an actual blood-tie be­ tween parent and child or actual biological parenthood.130 Proof of birth from a nonmarital mother through birth certificates or other evidence of birth will suffice to establish the mother-child relation-

125 Id. at 65-66. 126 Id. at 62. 127 Id. 128 Id. 129 See, e.g., Kathryn Venturatos Lorio, Symposium: Pushing the Boundaries: An Interdis­ ciplinary Examination of New Reproductive Technology: The Process of Regulating Assisted Re­ productive Technologies: 'What We Can Learn from our Neighbors-What Translates and What Does Not, 45 Lov.L.REv. 247 (1999). 130 The difficulties inherent in the concept of an actual blood-tie or "biological parenthood" today are demonstrated by the following fact pattern: A female French citizen has a partner who is a dual citizen, American and Canadian, also a female. They have two children conceived by artifi­ cial insemination with anonymous sperm obtained through a California clinic. Both children were born in Canada and were carried by a dual American-Canadian citizen. Both children have the same biological fa­ ther, but one of the children is biologically a descendant of the French mother who has provided her eggs for in vitro fertilization. In other words, one child is the biological descendant of two American citizens, the other child is the biological descendant of an American father whose identity is unknown, a biological mother who is French but who was carried by an American citizen up to birth. Can that child claim U.S. citizenship? The author thanks Professor Stephen Legomsky for providing this fact pattern. 2004] REAL DIFFERENCES AND STEREOTYPES 339 ship at any time the child wishes to claim citizenship; but not so for the child born abroad of a U.S. citizen nonmarital father. Moreover, in the view of this Court, both mothers and fathers appear to be typified by the worst in human sexual behavior pat­ terns-both males and females apparently are prone to promiscu­ ous and irresponsible sexual behavior, inevitably, apparently, leading to childbirth. Women and mothers, in particular, are prone to lies and deception about their sexual behavior to their sexual partner. The image of an expectant father at a birth event who is not really the father because the mother has tricked him or, worse, does not know the identity of the real father, is a powerful and accurate image in the eyes of this Supreme Court majority. As to the second interest, ensuring an opportunity for a mean­ ingful relatioqship between the parent and child that will facilitate transmission of American culture and values, the Court notes that again the biqlogical difference between mothers and fathers of children born overseas justifies the difference in treatment.131 In the case of th'e mother, the Court notes: the oppor~unity for a meaningful relationship between citizen parent and child inheres in the very event of birth, an event so often critical to our constitutional and statutory understandings of citizenship. The mother knows that the child is in being and is hers and has an initial point of contact with him. There is at least an opportunity for mother and child to develop a real, meaningful relationship. 132 In the case of the unwed father, however, the same opportunity does not result from the birth. The father may not know that a child was conceived; or similarly, the mother may not even know the father's identity.133 After all, the Court implies, most of these children are likely to be the children of military, most of whom are male and young and apparently, in the view of this Court, ex­ tremely promiscuous and irresponsible, more so than the average American map. and woman. 134 Moreover, the Court notes: When we 'turn to the conditions which prevail today, we find that the passage of time has produced additional and even more substantial grounds to justify the statutory distinction. The ease of travel and the willingness of Americans to visit foreign coun­ tries have resulted in numbers of trips abroad that must be of real concern when we contemplate the prospect of accepting

131 Nguyen, 533 U.S. 53, 64-65 (2001). 132 Id. at 65. 133 Id. 134 Id. at 65-66. 340 NEW YORK CITY LAW REVIEW [Vol. 7:315

petitioners' argument, which would mandate, contrary to Con­ gress' wishes, citizenship by male parentage subject to no condi­ tion save the father's previous length of residence in this country. In 1999 alone, Americans made almost 25 million trips abroad, excluding trips to Mexico .... Visits to Canada and Mex­ ico add to this figure almost 34 million additional visits .... And the average American overseas traveler spent 15.l nights out of the United States in 1999. 135 The Court does not do the arithmetic, but the implication of these numbers is clear: a potential fifty-nine million U.S. citizen children born abroad each year-and if the traveler is a male, the number may increase by fourteen children per traveler per year! "Principles of equal protection do not require Congress to ignore this reality," the Court concludes. 136 The majority opinion emphasizes biological differences, but, as the dissent points out, this case is not about biological differ­ ences, but about fairly broad and overdrawn stereotypes that bear almost no similarity or relationship to the case before the Court, or to the actual behavior patterns of most American women or men.137 Thus, the statute imposes a gender differential on the basis of gender stereotypes about males and females-men as irresponsi­ ble, promiscuous sexual predators and women either as more re­ sponsible, nurturing parents whose bonding with the child at birth is likely to ensure a meaningful relationship with the child (whether the mother ever sees the child again or not), or as willing participants in promiscuous and irresponsible sex, so much so that she or he will never be sure who a child's father really is. The Court's view of the statutory difference between nonmarital mothers and fathers reflects still another stereotype­ that anyone who engages in sex outside marriage is promiscuous and irresponsible. But if this is the stereotype behind Congress's statutory requirements for derivative citizenship in the case of nonmarital children, it would justify similar treatment of the sexes, not differential treatment. Perhaps, as well, the differential reflects the view that U.S. mothers of nonmarital children born abroad are more likely to re­ turn with their children to the United States than U.S. fathers, be­ cause, as a general matter, mothers are more likely than fathers to retain primary caretaker or custodial status over their marital or

135 Id. at 66. 136 Id. 137 Id. at 74-97 (2001) (O'Connor, J., dissenting). See also Miller v. Albright, 523 U.S. 420, 460-471 (1998) (Ginsburg,]., dissenting). 2004] REAL DIFFERENCES AND STEREOTYPES 341 nonmarital children.138 This difference in parenting roles, how­ ever, that men and women tend to or are expected to play is at the heart of gender stereotypes. It is the difference that the Minor Court used to deny Virginia Minor the vote and another woman, Myra Bradwell, a license to practice law. 139 It is a difference that has been eliminated for the most part in American family law. It is a difference that, at heart, has nothing to do with sex or gender but with the exercise of parental responsibility. 140 The statutory sex­ based distinction does not just make it easier for nonmarital chil­ dren of U.S. citizen mothers to establish derivative citizenship; it also imposes a substantial burden on the U.S. citizen father that if not fulfilled .prohibits him from passing on citizenship to his nonmarital children born abroad. The Cou,rt's opinion strains to find a substantial relationship between the pifference in treatment between the sexes and the goal it says C<;mgress is trying to achieve-ensuring that an oppor­ tunity for a parent-child relationship during a child's formative years exists. frs attempt to do so, however, is unconvincing. The Court appear~ to be saying that the fact that a woman has carried a child until birth provides an opportunity for a meaningful relation­ ship to form between mother and child that a father will not have because fathers do not physically carry children. Bearing the child, however, does not provide an opportunity to transmit values. It

138 See Nguyen, 533 U.S. at 88-89 (O'Connor, J., dissenting); see also Miller, 523 U.S. at 486-87 (Breyer, J., dissenting). 139 Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872) (holding that state bar exclu­ sion of women from the practice of law does not violate the Fourteenth Amendment); see also U.S. v. Virginia, 518 U.S. 515, 543-44 (1996) ("VMI"). 140 Justice Kennedy's opinion attempts to rebut the claim that the difference be­ tween nonmarital mothers and nonmarital fathers rests on stereotypes by defining stereotypes "as a frame of mind resulting from irrational or uncritical analysis." Nguyen, 533 U.S. at 68. Contrast this understanding of gender stereotypes with the discussion of gender stereotypes in Craig v. Boren, 429 U.S. 190 (1976), or VMI, 518 U.S. 515. The Nguyen opinion goes on to explain: There is r1othing irrational or improper in the recognition that at the moment df birth-a critical event in the statutory scheme and in the whole trad,ition of citizenship law-the mother's knowledge of the child and the fact of parenthood have been established in a way not guaran­ teed in thy case of the unwed father. This is not a stereotype. Ng1tyen, 533 U.S. rt 68. I am reminded of Gertrude Stein's "there is no there there." GERTRUDE STEIN, EVERYBODY'S AUTOBIOGRAPHY 289 (Vintage Books 1973) (1937). Nguyen's approach to stereotypes is reminiscent of the Court's approach in Michael M. v. Sonoma County, 450 U.S. 464 (1981) (upholding a statutory rape statute limited to male perpetrators). See, e.g., David B. Cruz, Disestablishing Sex and Gender, 90 CAL. L. REv. 997 (2002); Elizabeth A. Reilly, The Rhetoric of Disrespect: Uncovering the Faulty Prem­ ises Infecting Repro'ductive Rights, 5 AM. U.J. Gender & L. 147 (1996); Ann E. Freedman, Sex Equality, Sex Differences, and the Supreme Courl, 92 YALE LJ. 913, 932 (1983). 342 NEW YORK CITY LAW RE,VIEW [Vol. 7:315

may make sense for Congress to require a parent-child relationship that facilitates an education in and appreciation of, American his­ tory, culture and values for transmission of citizenship. But to con­ tend that the period of time a fetus spends in the uterus and the period of time spent in actual birth is material to transmission of citizenship strains credulity. It is the period of time after birth, dur­ ing a child's formative years, that is material for transmission of values. With respect to this period of time, the nonmarital father is in a similar position toward forming or developing a relationship with his child, at least in theory, as the nonmarital mother. Further, the amount of time a fetus spends in the uterus is the same for both marital and nonmarital children. Let us assume that because the law presumes that children born in a marriage are fathered by the male spouse of the marriage (regardless of actual blood-tie or biological parentage), it is rational to treat marital and nonmarital children differently. The difference in treatment would be rational because the marital father bears parental responsibility for the child as a matter of law. Both marital fathers and mothers, thus, are similarly situated with respect to their marital children. With re­ gard to nonmarital children, it makes sense, then, to require that a parent transmitting citizenship to a child bear legal responsibility for the child. The statute challenged in Nguyen may have reflected an attempt by Congress to ensure that, in the case of nonmarital children, only parents who financially supported and cared for their children received the benefit of transmitting U.S. citizenship. Although such a scheme may be faulted for failing to take into ac­ count the interests of the child, if applied to both mothers and fathers, it would be a reasonable way of distinguishing between marital and nonmarital children. But the Nguyen statute does not draw that distinction. Instead, it relies on old and tired stereotypes about men and women and their respective relationships to chil­ dren, requiring responsible parenting by men but not by women. Moreover, the opinion, taken as a whole, emphasizes the "min­ imal" nature of the burden the statute places on the father. But requiring an individual to engage in some kind of formal legal pro­ .cess, when such legal process is actually unnecessary to care for a child and enjoy custody over that child, is not a minimal burden. The Court dismisses the fact that the father may not even know of the statutory requirements for derivative citizenship until after de­ portation proceedings have begun. To describe the statutory re­ quirements imposed on the father as opposed to the mother (upon whom no burdens are imposed other than giving birth to 2004] REAL DIFFERENCES AND STEREOTYPES 343 the child) as posing a minimal burden is facile. At no point in the Nguyen opinion does the Court indicate any awareness that the ste­ reotypes on which its reasoning rests are flatly contradicted by the actual facts of the case before it; it is as ifJoseph Boulais and Tuan Anh Nguyen are not before the Court at all. 141 Missing ill this opinion, as in all the other opinions discussed, is a coherent and clear concept of what citizenship is or might be, and how relationships, including family relationships, may affect citizenship. The Court remains unwilling to articulate a vision or concept of citizenship informed by constitutional principles. This unwillingness; to articulate a concept of citizenship does not mean that the Court's opinions fail to convey a vision of citizenship, rather, it is simply an undeveloped vision lacking consistency, co­ herence and meaning for society. This omission is most glaring in the Court's characterization of the interests that the government seeks to vitiate in the statute. The Court characterizes the government's interests to ensure that there is a blood relationship between the parent and the nonmarital child, and to ensure that there is an opportunity for a meaningful relationship between the U.S. citizen parent and the I child born abroad.142 The first interest, the blood relationship, is the determinative factor in derivative citizenship. Citizenship by blood traditionally furnished the basis for transmission of citizen­ ship. The problem, of course, is that in both the case of the nonmarital mother and nonmarital father, the best evidence of the blood relatioijlship may be DNA testing, not a birth certificate or a legitimating process. It is the second interest, to ensure a meaningful relationship between parent and child, which creates the more substantial prob­ lem with the statutory scheme and the Court's treatment of that scheme. The Court stresses the importance of the opportunity to form a meaningful relationship between parent and child and ne­ glects to explore whether the real interest that could or should be pursued is whether there has been a meaningful parent-child rela-

141 Cf Stanley v. Illinois, 405 U.S. 645 (1972). Constitutional adjudication rests on the idea that the. Court is in the best posture to decide challenges to governmental action when per~ons with much to lose have actually had those interests affected. Presumably, the r1ecord developed in such a case is to be of use or service to the Court in explaining why the statute is or is not constitutionally problematic. The Nguyen Court ignores the facts of the case; its discussion and reasoning is unaffected and completely removed from the actual factual circumstances that have given rise to the claim. 142 Nguyen, 533 U.S. at 62, 64. 344 NEW YORK CITY LAW REVIEW [Vol. 7:315 tionship between the citizen parent and the biological child at all. The statute at issue in Nguyen plainly required that a meaningful relationship exist between a U.S. citizen father and his nonmarital child in order for that child to enjoy U.S. citizenship. The statute, however, merely assumed that a meaningful relationship existed between the U.S. citizen mother and her nonmarital child, as a consequence of birth. It is precisely this type of assumption about stereotypical sex roles that equal protection doctrine prohibits. The Court's unwillingness to explore what actual interest Congress may constitutionally vitiate through naturalization and citizenship statutes similarly frustrates development of an informed concept of citizenship. One could argue that it is not the Court's role to artic­ ulate such a vision, but only to decide actual cases before it. Per­ haps it is the role of the legislature to give meaning to this concept of citizenship. That is, to an extent, what the Nguyen majority seems to be expressing with its deference to Congress's decision to penal­ ize U.S. fathers and their nonmarital children born abroad and to favor U.S. mothers and their nonmarital children born abroad. But it is the Court's role in the American constitutional scheme to in­ terpret the Constitution and enforce its provisions, in particular, its guarantees of basic human rights. The Nguyen case embraces a view of gender and citizenship at odds with the Court's own legal norms of gender equality.143 That the Court may have abdicated an op­ portunity to develop a coherent concept of citizenship upon adop­ tion of the Fourteenth Amendment, does not prevent it from embarking upon the task today. One vision of citizenship in the context of gender that is based on an honest and realistic measure of each individual's potential and abilities is that presented in the case of the United States v. Virginia. 144 VMI was decided in 1996. The case does not appear to involve citizenship at all. Thus, I may be accused of injecting citizenship notions into a case having nothing to do with it, in the same way that I have criticized the Bellei Court for injecting gender into a case that does not raise the issue at all. Like the Bellei Court, I will live with that criticism. The VMI case involved a challenge to the Virginia Military In­ stitute's single-sex admissions policy on the grounds that the school's male-only policy discriminated on the basis of sex in viola­ tion of the Equal Protection Clause of the Fourteenth Amend-

143 See, e.g., VMI, 518 U.S. 515. 144 Id. 2004] REAL DIFFERENCES AND STEREOTYPES 345 ment. 145 In perhaps the strongest opm10n on gender discrimination issued by the Supreme Court, Justice Ginsburg ac­ knowledged Virginia's aim in its single-sex policy: VMl's distinctive mission is to produce "citizen-soldiers," men prepared for leadership in civilian life and in military service. VMI pursues this mission through pervasive training of a kind not available anywhere else in Virginia. Assigning prime place to character development, VMI uses an "adversative method" modeled on English public schools and once characteristic of military instruction. VMI constantly endeavors to instill physical and mental discipline in its cadets and impart to them a strong moral code. The school's graduates leave VMI with heightened comprehension of their capacity to deal with duress and stress, and a large sense of accomplishment for completing the hazard­ ous course.146 But, as the lower Court had noted, "neither the goal of producing citizen-soldier;; nor VMI's implementing methodology is inherently unsuitable to \vomen."147 Therefore, the Court concluded, the sin­ gle-sex policyt violated the Equal Protection Clause of the Four­ teenth Amenoment.148 Both the Nguyen and VMI courts applied the same test ~o determine whether the gender differential violated norms of equality; the way the two courts applied the test, however, is substantially different. Both opinions state that governmental dis­ tinctions on the basis of sex must not be based on overbroad gener­ alizations about men and women, but instead must be based on real differences between the sexes. 149 The Nguyen Court's view of a real difference, however, is hard to understand as anything other than gross cultural stereotypes about female and male behavior patterns. For the Nguyen Court, the behavior of a few members of either sex will doom every member of the group to be tainted by whatever characteristic the Court deems to be "representative" of the group. The Nguyen Court sought to mask its reliance on overbroad stereotypes about the sexes by its continued insistence that it was biological differences, in its view real differences, that justified the difference in treatment. As explained by Justice Ginsburg, how­ ever, " [ t] he justification must be genuine, not hypothesized or in­ vented post hoc in response to litigation. And it must not rely on

145 Id. at 523. 146 Id. at 520. 147 Id. at 525 (9uoting U.S. v. Virginia, 976 F.2d 890, 899 (4th Cir. 1992)). 148 Id. at 519. 149 Nguyen, 533 U.S. 53, 76 (2001); VMI, 518 U.S. 515, 533 (1996). 346 NEW YORK CITY LAW REVIEW [Vol. 7:315 overbroad generalizations about the different talents, capacities, or preferences of males and females."150 Moreover, Justice Ginsburg continued, "[i]nherent differences between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial con­ straints on an individual's opportunity."151 In contrast to the Nguyen majority, the VMI majority attempts to deal with potential differences between men as a group and women as a group in a realistic and honest way, while allowing individual members of both groups to compete on the same playing field. Virginia advanced two interests or justifications in defending the exclusion of women.152 First, Virginia claimed that VMI's male­ only policy provided educational benefits and diversity in educa­ tional approaches.153 Second, Virginia argued that the school's ad­ versative approach, described as VMI's unique "method of character development and leadership training," would have to be modified if women were admitted. 154 The Court rejected the first justification because it was not a justification that the State had actually relied on in making the in­ stitution male only but had been developed after the litigation commenced.155 The historical record simply did not support a finding that Virginia had sought to advance diverse educational op­ tions in its single sex policy at VMI; rather, the Court noted, VMI's policy simply afforded "a unique educational benefit only to males."156 The Court also rejected the second justification, that admit­ ting women to VMI would destroy VMI's program because their participation would eliminate the adversative approach.157 The C<;mrt, however, reasoned that although admission of women to the program would require accommodation of some kind (hous­ ing and physical training programs), it would not destroy the ad­ versative method. 158 The Court assumed first that many men and women are not interested in pursuing the VMI approach.159 It also noted the dis-

150 Id. at 533. 151 Id. 152 Id. at 535. 153 Id. 154 Id. 155 Id. at 540. 156 Id. 157 Id. at 540-46. 158 Id. 159 Id. 2004] REAL DIFFERENCES AND STEREOTYPES 347 trict court's findings that some women, like some men, are capable of all of the individual activities required of VMI cadets.160 Moreo­ ver, the Court noted, "the parties agree that some women can meet the physical standards VMI now imposes on men."161 In fact, the Court had evidence before it that indicated that approximately ten percent of women would be able to meet the physical standards VMI imposed on men.162 Thus, the fact that a particular stereotype or generalization might hold true for "most" women, did not justify exclusion of all women from the program. 163 Similarly, it was not material that more men than women may pursue and be successful at VMI; rather the question the Court identified is "whether [Vir­ ginia] can constitutionally deny to women who have the will and capacity, the training and attendant opportunities that VMI uniquely affords."164 The Court rejected the argument that exclusion of women is essential to preserving the character and mission of the VMI pro­ gram. As justice Ginsburg wrote: VMI's mission: to produce "citizen-soldiers," individuals imbued with love oflearning, confident in the functions and attitudes of leadership, possessing a high sense of public service, advocates of the American democracy and free enterprise system, and ready to defend their country in time of national peril. ... Surely that goal is great enough to accommodate women, who today count as citizens in our American democracy equal in stat­ ure to men. 165 Setting aside for the moment whether the VMI vision of "citizen­ ship" is a particularly good one, it is at least a vision of citizenship that requires actual equality in the sense of affording all the oppor­ tunity to participate in the endeavor. It is a vision that does not mask differences; it acknowledges them but does not make more of them than is ,warranted. The VMI decision upholds a vision of equality that does not guarantee that everyone will have access to the resources, only that one will have the opportunity for access on the strength of one's abilities. The VMI opinion celebrates the indi­ vidual-what it guarantees is that one is to be treated as an individ­ ual and not as a member of the group, particularly when the group stereotype is a negative stereotype used by the state to deny an indi-

160 Id. at 541. 161 Id. 162 Id. 163 Id. 164 Id. at 542. 165 Id. at 545 (quoting United States v. Virginia, 766 F. Supp. 1407, 1425 (1991)). 348 NEW YORK CITY LAW REVIEW [Vol. 7:315 vidual a ben:efit, right, or privilege. It is this guarantee that is miss­ ing in the Nguyen Court's analysis and holding. Justice Ginsburg's opinion speaks with an honesty and frankness completely missing from the majority opinion in the Nguyen case.

A. Globalization, Gender, and International Law Globalization is inevitable. It will not obscure differences. It may be shaped, however, and we should be actively involved in its shaping. As Peter Singer notes in the preface to his recent book on globalization, One World, in the aftermath of September 11, the war against Iraq and, now, the post-Iraq war, exploring the concept of globalization appears strained.166 Plainly, today, the world appears divided, whether or not it is actually more divided than at any other time in the past. But as Professor Singer notes in the context of September 11 and America's response to the attack: confirms rather than denies the idea of a world that is increas­ ingly becoming one, for it shows that no country, however mighty, is invulnerable to deadly force from the far corners of the earth. An American administration that had previously shown little concern for the opinion of the rest of the world found itself in need of the cooperation of other nations in a global campaign against terrorism.167 It really is one world, and it always has been one world. Envi­ ronmental science, technology, and travel have made us more aware of our interconnectedness, but few of us, knowingly or not, go through our lives without interacting or being affected by per­ sons, events, or things that are outside our local area of residence. It may perhaps be most obvious in the context of the environment and biology and our own susceptibility to germs, bacteria, and dis­ ease, but events that occur in one part of the world have and have always had an effect on other parts of the world. Thus, while differ­ ences in cultures, values, religion, language, attitudes, politics and economies remain stark, we will continue to have to deal with each other. Globalization exposes the tensions inherent in concepts of citi­ zenship, particularly for states that treat citizenship as matetial to the issue of human rights. Basic human rights, like freedom from

166 SINGER, supra note 33. 167 Id. at ix. 2004) REAL DIFFERENCES AND STEREOTYPES 349 gender discrimination, should not depend on citizenship status.168 One lesson we have learned from the American experience, from the German experience, from the formation of the European Union, is that for a society or civilization to thrive, each individual member residing in the community has to be guaranteed basic human rights. 169 Whether these rights are inherent in humanity or whether they are derived from some other source is immaterial to the idea that all individuals are entitled to some set of rights. In the context of the United States, the fifty states may provide different legal norms, l;>enefits, and protections to their residents, but the plain language of the Constitution guarantees to all persons in the country the protection of their basic human rights. Globalization poses a challenge for legal adherence to and en­ forcement of gender equality norms. Feminist writers and com­ mentators have warned that gender is a problem in the context of globalization, r but their admonishment remains unincorporated into mainstream diplomatic and political structures.170 That approach is dangerous. Gender stereotypes still play too predominant~ role in Western societies for silence on the issue of gender equality in a global context. Adherence to norms of gender equality must ~e as important a part of the discussion on globaliza­ tion as other human rights, the environment, trade, labor, the economy, and public health. Presently, in the United States, constitutional limits generally prohibit governmental discrimination on the basis of sex. Nguyen's approach is likely to be limited to the immigration and naturaliza­ tion context, in which the Court traditionally has adopted a highly

168 See infra Nguyen discussion; Demore v. Kim, 538 U.S. 510 (2003). 169 See, e.g., Christian Joppke, The Evolution of Alien Rights in the United States, Ger­ many, and the European Union, in CrrIZENSHIP TODAY, supra note 5, at 36-62. 170 See Vicki C. Jackson, Feminist justice, At Home and Abroad: Gender and Transnational Legal Discourse, 14 YALE J.L. & FEMINISM 377 (2002); Volpp, Feminism Versus Multicul­ turalism, supra note 20; Volpp, TaUdng, supra note 20; Barbara Stark, Women and Global­ ization: The Failure and Postmodern Possibilities of International Law, 33 VAND. J. TRANSNAT'L L. 503 (2000); Merle H. Weiner, The Potential and Challenges of Transna­ tional Litigation for Feminists Concerned About Domestic Violence Here and Abroad, 11 AM. U. J. GENDER Soc. PoL'Y & L. 749 (2003). See generally Joan Fitzpatrick & William McKay Bennett, A Lion in the Path? The Influence of International Law on the Immigration Policy of the United States, 70 WASH. L. REv. 589 (1985); Louis Henkin, That "S" Word: Sovereignty, and Globalization, and Human Rights, Et Cetera, 68 FORDHAM L. REv. 1 ( 1999); Natsu Taylor Saito, Asserting Plenary Power over the "Other:" Indians, Immigrations, Colonial Sub­ jects, and Why U.S. jurisprudence Needs to Incorporate International Law, 20 YALE L. & PoL'Y REv. 427 (2002); Kevin R. Johnson, The Moral High Ground? The Relevance of Interna­ tional Law to Remedying Racial Discrimination in the U.S. Immigration Laws, in MORAL IMPERIALISM: A CRITICAL ANTHOLOGY 285 (Berta Esperanza Hernandez-Truyol ed., 2002). 350 NEW YORK CITY LAW REVIEW [Vol. 7:315 deferential posture to Congressional and executive exercises of powers. 171 Notwithstanding, it is a symbol of perhaps more mean­ ingful protections against discrimination on the basis of sex are se­ cured by federal statutes.172 States and municipalities also extend some protection to persons who have been injured by gender bias. 173 The federal enforcement scheme, while imperfect, is stronger than perhaps in any other nation. As with labor, environ­ mental, and health concerns, it behooves our legal and govern­ mental institutions to partake in the international dialogue to secure global acceptance and enforcement of gender equality norms. A recent period of residency in Greece on a Fulbright grant, allowed me to explore normative arid enforcement commitment to gender equality in a different setting. Greece is a predominantly homogeneous society with a rich historical and cultural tradition that in modern times merges elements of Western and Middle Eastern civilizations. 174 Like many of its European counterparts, Greece is a small country. Its total population of almost eleven mil­ lion is spread out over mountainous, dry, rocky, and arid territory consisting, in part, of 1,400 islands.175 American scholars think of Greece in the context of ancient Greece and what ancient Greek philosophers contributed to the modern world: the development of democracy, a conception of equality,176 and, more recently, a conception of sex and gender

l 71 See, e.g., Sarah Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REv. 1 (2002). 172 See, e.g., Title VII, Civil Rights Act of 1964, 42 U.S.C. § 2000 e-2(a) (2000); Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2000); Title IX, Education Amendments of 1972, 20 u.s.c. § 1681 (2000). 173 See, e.g., CAL. [Ov.] CODE § 52.4 (West 2002) (creating a cause of action for victims of gender violence); 5 ILL. COMP. STAT. 82/10 (2004) (providing a cause of action for persons who have been subjected to gender violence); MINN. STAT. ANN. § 609.2231 (West 2003) (prohibiting assaults motivated by gender bias); NJ. STAT. ANN.§ 2A:53A-21 (West 2003); N.Y.C. AoMIN. CoDE § 8-107 (2003) (prohibiting em­ ployment discrimination on the basis of gender); N.Y.C. AoMIN. CoDE § 8-904 (2000) (providing a cause of action for victims of gender-motivated crimes of violence against perpetrators); S.C. CODE ANN. § 59-1-475 (Law Co-op. 2003) (requiring continuing education for teachers and appropriate staff regarding domestic and family violence). 174 See generally RICHARD CLOGG, A CONCISE HISTORY OF GREECE (CAMBRIDGE 1992); C. M. WooDHOUSE, A SHORT HISTORY OF MODERN GREECE (1991). l 75 U.S. Department of State, Bureau of European and Eurasian Affairs, Background Note: Greece (Nov. 2004) at http:/ /www.state.gov/r/pa/ei/bgn/3395.htm (on file with the New York City Law Review). 176 Athanassios N. Yiannopoulos, Historical Development, in INTRODUCTION TO GREEK LAw 2-4 (2d ed. by Konstantinos D. Kerameus & Phaedon J. Kozyris). Aristotle and ancient Greece appear frequently in modern discussions of equality theory. See, e.g., 2004] REAL DIFFERENCES AND STEREOTYPES 351 that accommodates human potential for differences in sexual ori­ entation.177 Greece warrants closer scrutiny, however, in its mod­ ern state, which offers a unique opportunity for examination of a culture or society that has accommodated a blending of Western and Eastern values. Its relative political and economic stability facil­ itate that scrutiny and enable enhanced understanding of the cul­ tural similarities and divergences between Western and Middle Eastern societies. After the fall of the Byzantine Empire, Greece spent four hundred years under Ottoman rule. 178 This Turkish heritage is evident in modern Greek music, food, customs and mo­ res, and influences, in part, attitudes toward gender and norms of gender equality. Many of the issues facing Middle Eastern, Muslim, and African societies have been dealt with or are being dealt with by Greek society, including an issue of particular importance to gender, that of separation of church and state.179 Like many other societies, the role of the church in Greece is significant; the Greek Orthodox Church is part of the Greek state180 and plays an active role in state policy and the development of norms. Greece's current constitution was adopted on June 11, 1975.181 The constitution eliminated facial discrimination on the basis of sex by formally adopting a requirement of equality, but many gender-based distinctions remained until 1982, shortly after Greece's admission to the European Union as its tenth member. Like many countries, Greece has embraced gender equality, but, for the most part, enforcement of gender equality is lacking. Fur­ thermore, gender equality under the Greek constitution is guaran­ teed only to Greek citizens. 182 Equality norms apply to Greek

Maureen B. Cavanaugh, Democracy, Equality and Taxes, 54 ALA. L. REv. 415, 418-19, 443-45 (2003); Sean Pager, Strictness vs. Discretion: The European Court ofJustice's Variable Vision of Gender Equality, 51 AM. J. Cm.IP. L. 553 (2003); Anita Bernstein, Treating Sex­ ual Harassment with Respect, 111 HARv. L. REv. 445, 527 ( 1997); Peter Margulies, Inclu­ sive and Exclusive Virtues: Approaches to Identity, Merit and Responsibility in Recent Legal Thought, 46 CATH. U. L. REv. 1109 (1997); Linda R. Hirschman, The Book of "A; 70 TEx. L. REV. 971 (1992); Richard A. Posner, Response: Ms. Aristotle, 70 TEX. L. REv. 1013 (1992); Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. CHI. L. REv. 1175, 1182 (1989). l 77 See Marilyn Yalom, Symposium, Marriage Law: Obsolete or Cutting Edge?, l 0 MICH. J. GENDER & L. 21, 39 (2003); see also Martha C. Nussbaum, Platonic Love and Colorado Law: The Relevance of Ancient Greek Norms to Modern Sexual Controversies, 80 VA. L. REv. 1515 ( 1994). 178 CLocc, supra note 174, at 1-46; WOODHOUSE, supra note 174, at 99-157; Yianno- poulos, supra note 176, at 6-7. 179 Yiannopoulos, supra note 176, at 6-7. 180 CONSTITUTION OF GREECE, art. 3. 181 CONSTITUTION OF GREECE. 182 CONSTITUTH)N OF GREECE, art. 4. 352 NEW YORK CITY LAW REVIEW [Vol. 7:315 citizens under the Greek constitution, but European Union mem­ bership may ensure that European Union citizens will be accorded similar treatment under Greek law. Non-European Union citizens, however, and this includes the bulk of immigrants currently resid­ ing in Greece, do not enjoy a constitutional entitlement to free­ dom from state mandated or sponsored gender bias. Further, Greek law does not reflect a well developed statutory framework of enforcement. For example, although gender employ­ ment discrimination is prohibited, enforcement of that norm is left primarily to employers; certain jobs are still reserved for men and there is no specific statutory provision prohibiting sexual harass­ ment in the workplace.183 Inadequate resources and an insufficient commitment to gender equality norms continue to undermine ef­ forts to eliminate harassment, gender-motivated violence, employ­ ment discrimination and sexual-trafficking.184 Full integration of women into the economy, the work force and the government is a goal not yet accomplished.185 Greek laws on gender discrimination changed, however, primarily as a result of Greece's membership in the European Union.186 Moreover, European Union pressure to enhance enforcement of norms prohibiting gender bias in Greece and throughout the European Union continues. Thus, the Euro­ pean Union is an example of regional norms affecting or influenc­ ing national norms.187 The dialogue between European Union member states and the European Court ofJustice serves to develop and foster a grander and more meaningful international legal dialogue. Justice Ginsburg's opinions and writings reflect an acknowl­ edgment and exploration of this international legal dialogue.188 In a number of opinions, Justice Ginsburg uses international conven­ tions to explain the reasons why American constitutional norms should be influenced by international norms. In a sense, interna­ tional customary law, conventions, and judicial opinions may play a parallel role in constitutional adjudication to that of state laws and

183 See Mary Ellen Tsekos, The New European Union Directive on Sexual Harassment and its Implications to Greece, 10 Hum. Rts. Br. 31 (2003); THEODORE KONIARIS, LABouR LAw IN HELLAS 124-25, 127, 445 (2002). 184 Id. 185 Id. 186 KoNIARIS, supra note at 184, at 53, 79-81, 86. 187 See Yiannopoulos, supra note 176, at 10. 188 Gratz v. Bollinger, 539 U.S. 244, 296-304 (2003) (Ginsburg,]., dissenting); Cruller v. Bollinger, 539 U.S. 306, 343-45 (2003) (Ginsburg,]., concurring); American Ins. Ass'n v. Garamendi, 539 U.S. 396, 428-441 (2003) (Ginsburg,]., dissenting); Ginsburg, Sex Equality and lite Constitution, supra note 3. 2004] REAL DIFFERENCES AND STEREOTYPES 353 state practices. Generally, when the Court considers a human rights issue, it will look at state law and practices to determine whether adherence to precedent make sense or whether a break from precedent is necessary.189 State norms and state court opin­ ions are not necessarily determinative, but the Court, nonetheless, considers them as evidence of consensus or prevailing trends, and considers them as evidence of the need for a national uniform norm. Justice Ginsburg's jurisprudence establishes that interpreta­ tion of American constitutional norms may be appropriately influ­ enced by international conventions and international norms when those norms further and are consistent with American constitu­ tional values and doctrines. Continued reference to international conventions and norms enhances and strengthens international and global norms. Comprehensive discussion of international con­ ventions and norms in the development of American constitutional law engages the international legal, legislative, and judicial com­ munity, facilitating the further development of international norms and law enforcement. This dialogue also facilitates and is evidence of a continued membership and participation in the global community. Supreme Court cases from this last term lend themselves to this approach, and I will briefly discuss three of them as examples qf how awareness of international norms or conven­ tions may be of use in American constitutional law and serve to contribute, at the same time, to the development of a global order. The cases deal with human rights issues, namely, affirmative ac­ tion 190 and detention of noncitizens. 191 The Court's resolution of these issues for the most part was accomplished with no reference or consideration, in the majority opinion, of the practices of other nations, or of international conventions or norms. The cases would have benefited from formal consideration of international norms, even where those norms are inconsistent, contrary to, or depart from American norms. In Gratz p. Bollinger, 192 the Supreme Court held that a race­ conscious undergraduate admissions plan violated the Equal Pro­ tection Clause of the Fourteenth Amendment because it was not sufficiently narrowly tailored to the compelling interest of admit­ ting a diverse student body.193 In Grutter v. Bollinger, a different

189 See, e.g., Washington v. Glucksberg, 521 U.S. 707, 710-16 (1997). 190 Gratz, 539 U.S. 244; Gmtter, 539 U.S. 306. 191 Demore v. Kirn, 538 U.S. 510 (2003). rn2 Gratz, 539 U.S. 244. 193 Id. at 275. 354 NEW YORK CITY LAW REVIEW [Vol. 7:315 majority upheld the state law school's race-conscious admissions policy.194 The Court held that a law school has a compelling inter­ est in attaining a diverse student body and that law schools are enti­ tled to deference in exercising their judgment that "such diversity is essential in its educational mission." 195 Neither of the majority opinions reference international human rights law; nor do they make any reference to the experience or practices of other coun­ tries. In fact, the majority opinions deal with issues of affirmative action and race as if they are American issues-as if racism and equality are problems peculiarly and exclusively American. The majority opinion in Grutter notes the "increasingly global market­ place" and the impact on national security of failing to provide ex­ posure to "widely diverse people, cultures and ideas, and viewpoints,"196 but shies away from taking note of global trends and developments on the issue of diversity itself.Justice Ginsburg's con­ currence in Grutter by contrast, opens with an acknowledgment of the global nature of the issue and the formal global response to that issue. 197 The Court's observation that race-conscious programs "must have a logical end point" ... accords with the international un­ derstanding of the office of affirmative action. The International Convention on the Elimination of All Forms of Racial Discrimi­ nation, ratified by the United States in 1994, ... endorses "spe­ cial and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental free­ doms." ... But such measures, the Convention instructs, "shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved. "198 Justice Ginsburg's opinions make clear that the problems caused by racial discrimination and government responsibility for affirmatively responding to its continuing effects is recognized by the global community as a human rights issue. Recognition of in­ ternational norms and consensus on the issue of remedying or af­ firmatively responding to the vestiges of past widespread subjugation of races (or persons because of their sex) encourages

194 Cruller, 539 U.S. 306. 195 Id. at 328. 196 Id. at 330. 197 Id. at 344-46 (Ginsburg, J., concurring); see also Gratz, 539 U.S. 244 at 298-305 (Ginsburg,]., dissenting). 198 Id. at 344 (Ginsburg, J., concurring). 2004] REAL DIFFERENCES AND STEREOTYPES 355 more careful and serious consideration of legally required govern­ mental abdication of that responsibility. The last case I wish to discuss briefly, returns, albeit indirectly, to one of the themes I explored earlier in this article: the concept of citizenship. In Demore v. Kim, 199 a majority of the Supreme Court found that mandatory detention of permanent legal residents dur­ ing removal proceedings, without an individualized showing that the alien posed a flight risk or a danger to the community, did not violate the Due Process clause of the Fourteenth Amendment.200 The Court, in part, based its decision on Congress's "broad power over naturalization and immigration," which permits Congress to regulate aliens in a manner "that would be unacceptable if applied to citizens."201 In turn, the Court reasoned that Congress's power to distinguish between citizens and noncitizens rested on the pre­ mise that "any policy toward aliens is vitally and intricately interwo­ ven with contemporaneous policies in regard to the conduct of foreign relations, the war power, and the maintenance of a republi­ can form of g,overnment."202 The majority acknowledges that distinctions between citizens and noncitizens are based in part on the relationship between the United States 'and other nation-states, including regional arrange­ ments like the European Union. However, the opinion does not explore or in any way consider international legal norms or norms of other nation-states, on the issue of treatment, and specifically, detention of noncitizens. Traditionally, judicial review is most def­ erential to the executive and legislative branches in the area of for­ eign affairs. The singular exception, of course, has been in the area of human rights, and detention, like gender discrimination, is a human rights issue. This has not prevented the modern Court from drawing stark lines between what the government will be con­ stitutionally permitted to do to citizens and noncitizens. Interna­ tional norms on detention of noncitizens may, in fact, be much less protective of noncitizens than the norms developed in the United States in the latter half of the twentieth century,203 but, as in the case of gender discrimination, formal acknowledgement of inter­ national practices will clarify the extent to which international practices may influence constitutional adjudication today.

199 538 U.S. 510 (2003). 200 Id. 201 Id. (citing Matthews v. Diaz, 426 U.S. 67, 79-80 (1976)). 202 Id. 203 See Landon v. Plasencia, 459 U.S. 21, 35 (1982). 356 NEW YORK CITY LAW REVIEW [Vol. 7:315

Like gender bias, international practice regarding detention or seizures of persons, too frequently departs from basic human rights norms. Because the United States has emerged as a country with one of the strongest prohibitions against unlawful use of state seizure or detention of persons, it is critical for our Supreme Court to take note of our international leadership when considering weakening or departing from the strong constitutional protections that have been developed over many decades against overzealous and abusive government practices. Formal consideration of inter­ national norms on detention also forces us to confront the ease with which other nations have resorted to unlawful seizures and frequent violations of the most basic human rights in the context of detention. Formally acknowledging that ease and frequency could be useful to justify our own departures from the strong legal disapprobation of unlawful seizures and detentions. That depar­ ture, however, would be at odds with established American legal precedents. Formally acknowledging international practices will clarify the extent to which these international practices are already playing a role, albeit a silent one, in constitutional adjudication to­ day. Justice Ginsburg's articulation of what the Equal Protection clause of the Fourteenth Amendment requires from the federal government in the context of gender is clear and unambiguous. Her opinions reflect a consciousness of the importance of recog­ nizing international legal norms and practices in formulating our own, particularly in the context of cases posing basic human rights issues. If we are, in fact, the most powerful culture in the world today, it would behoove the Court to acknowledge our position as a world leader in formulating basic human rights norms on citizen­ ship and gender. Basic human rights should not depend on citizen­ ship; neither here, in the United States, nor anywhere else. The United States cannot, and should not, dictate law to other coun­ tries, but it can, and should, work toward the development of a global order that universally recognizes and protects the basic human rights of all persons. Justice Ginsburg's opinions work to­ ward this goal; it is to be hoped that the Court as a whole will follow her lead. RETURNING THE LANGUAGE OF FAIRNESS TO EQUAL PROTECTION: JUSTICE RUTH BADER GINSBURG'S AFFIRMATIVE ACTION JURISPRUDENCE IN GRUITER AND GRATZ AND BEYOND

Shira Galinsky*

I. INTRODUCTION Like the opinions in many other recent equal protection cases, the Supreme Court's opinions in Grutter v. Bollinger1 and Gratz v. Bollinger, 2 the cases decided in June 2003 that challenged the Uni­ versity of Michigan's affirmative action plans, are disturbing in their mechanl.cal, technical tone and seeming distance from real life racial inequality. The language of equal protection analysis has become regimented, fixed, and increasingly removed from the problems of ignorance, intolerance, and outright racism that con­ tinue to plague American society. Against this backdrop, a minority of Supreme Court justices have written about the need to depart from the strict formalism of equal protection review and the need to confront societal discrimination openly.3 Justice Ruth Bader

* Columbia University, B.A., 2000, CUNY Law School, Class of 2005. Many thanks to Professors Frank Deale and Ruthann Robson for their feedback and comments. Special thanks to' the staff and editorial board of the New York City Law Review. I 539 U.S. 306 (2003). 2 539 U.S. 244 (2003). 3 Justice Marshall protested the oversimplification of equal protection review in his dissent in San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 98 (1973) (Marshall, J., dissenting);Justice Stevens has written in Craig v. Boren, 429 U.S. 190, 211 (1976) (Stevens, J., concurring): There is only one Equal Protection Clause .... It docs not direct the courts to apply one standard of review in some cases and a different standard in other cases .... I am inclined to believe that what has be­ come known as the two-tiered analysis of equal protection claims does not describe a completely logical method of deciding cases, but rather is a method the Court has employed to explain decisions that actuaJiy ap­ ply a single standard in a reasonably consistent fashion. I also suspect that a careful explanation of the reasons motivating particular decisions may contribute more to an identification of that standard than an at­ tempt to articulate it in aII-encompassing terms. It may therefore be ap­ propriate for me to state the principal reasons which persuaded me to join the Cpurt's opinion. Id. In Craig v. Boren, Justice Rehnquist opposed the subjective element of the tiers of review, asking, "hbw is this Court to divine what objectives are important? How is it to

357 358 NEW YORK CITY LAW REVIEW [Vol. 7:357

Ginsburg is notable among this group for her open and transpar­ ent discussion of societal injustice and racism, her encouragement of similar openness and transparency in affirmative action pro­ grams, and her concrete suggestions for developing a more flexible standard in reviewing equal protection cases. Ginsburg's separate opinions in Grutter and Gratz add a thoughtful articulation of the anti-formalism position to the affirmative action debate by laying a foundation in equality and human rights doctrine and advocating for a less formalistic standard of review in these cases.

II. BEFORE GRUTTER AND GRATZ: THE SUPREME COURT'S AFFIRMATIVE ACTION ANALYSTS

A. Affirmative Action Review Under the Three-Tiered System The Supreme Court currently views government actions that differentiate between people based on their race with extreme sus­ picion. Under the Court's strict scrutiny standard of review, laws that treat people of one race or ethnicity differently from those of another must be narrowly tailored to serve a compelling governmental interest in order to be deemed constitutional under the Equal Pro­ tection Clause of the Fourteenth and Fifth Amendments.4 This standard of review has been used to strike down many malevolent laws that discriminated against African-Americans, such as those promoting school segregation and banning interracial marriage.5 After some initial uncertainty, the Court has decided that race­ based affirmative action policies as well as race-based discrimina­ tory policies should be subject to strict scrutiny because they differ­ entiate among people according to their race and ethnicity.6 Initially, in Regents of University of California v. Bakke, a case that in- determine whether a particular law is 'substantially' related to the achievement of such objective, rather than related in some other way to its achievement?" 429 U.S. 190, 221 (1976) (Rehnquist,]., dissenting). See all'ojeffrey M. Shaman, Cracks in the Structure: The Coming Breakdown of the Levell' of Scrutiny, 45 Omo ST. LJ. 161, 163-65 (1984). 4 The concept of strict scrutiny was first used with reference to racial classifica­ tions in Korematsu v. United States, 323 U.S. 214 (1944), which held that the policy of incarcerating individuals ofJapanese descent during World War II was constitutional because it responded to national security concerns. Strict scmtiny was subsequently developed in a series of race-related cases. See, e.g., Loving v. Virginia, 388 U.S. 1 (1967) (holding that an anti-miscegenation statute was unconstitutional because there was no overriding purpose to the statute other than racial discrimination); see generally LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw 1466-514 (2d ed. 1988) (discussing the development of strict scrutiny for race-based classifications). 5 See, e.g., Brown v. Board of Education, 347 U.S. 483 (1954); Loving, 388 U.S. 1. 6 See, e.g., Adarand Constructars, Inc. v. Pena, 515 U.S. 200, 227 (1995). 2004] GRUTTER AND GRATZ AND BEYOND 359 volved a chall~nge to the University of California's plan to set aside a certain number of medical school seats for minority students, the Court ruled against the race-based affirmative action program, but the Court did not issue a majority opinion, and it did not reach a consensus on what standard of review to apply. 7 Four justices wrote that in order for race-based affirmative action programs to survive constitutional scrutiny, the government policies must be substan­ tially related to serving important governmental interests-one could label such standard as intermediate scrutiny, although none of the four justices had called it so.8 According to Justice Powell, however, strict scrutiny should be applied to race-based affirmative action programs, and achieving diversity, not remedying general societal discrimination nor increasing medical services in minority commu­ nities, constitµted a compelling state interest9-an element under strict scrutiny. However, he stated that reserving a specified num­ ber of seats f9r minority students in an academic program, which was the case ip Bakke, was not narrowly tailored to achieving diver­ sity. 10 Thus, tace or ethnicity could only be one among many factors considered when making individual admissions determinations. 11 After Bakke, the Court continued to vacillate on the appropri-

7 438 U.S. 265, 271 (1978). s Id. at 359 ("[A] number of considerations-developed in gender-discrimination cases but which cqrry even more force when applied to racial classifications-lead us to conclude that racial classifications designed to further remedial purposes must serve important governmental objectives and must be substantially related to achievement of those objectives." (internal quotation marks omitted)). 9 Id. at 305-15. Powell wrote: [T] he attainment of a diverse student body ... clearly is a constitution­ ally permissible goal for an institution of higher education. Academic freedom, though not a specifically enumerated constitutional right, long has bren viewed as a special concern of the First Amendment. The freedom or a university to make its own judgments as to education in­ cludes the,selection of its student body. Id. at 311-12. I 10 Id. at 315. It may be assumed that the reservation of a specified number of seats in each class for individuals from the preferred ethnic groups would con­ tribute to the attainment of considerable ethnic diversity in the student body. But petitioner's argument that this is the only effective means of serving the interest of diversity is seriously flawed. Id. 11 Id. (Justice Powell states that "[t] he diversity that furthers a compelling state interest encompasses a far broader array of qualifications and characteristics of which racial or ethnic origin is but a single though important element. Petitioner's special admissions program, focused solely on ethnic diversity, would hinder rather than fur­ ther attainment of genuine diversity." (emphasis in original)). 360 NEW YORK CITY LAW REVIEW [Vol. 7:357 ate standard to apply to race-based affirmative action, in part be­ cause of its ambivalence about the appropriate level of deference to give to Congressional action. For example, in Fullilove v. Klutz­ nick, the Court deferred to Congress and upheld a federal program that granted government contracts to minority-owned businesses, again without a majority consensus on the appropriate standard of review to apply. 12 In City of Richmond v. JA. Croson Co., however, the Court ruled in favor of applying strict scrutiny to race-based affirm­ ative action programs and rejected the assertion that remedying past general societal discrimination is a compelling state interest. The Court held that a Richmond, Virginia, program that favored construction contract grants to minority-owned businesses was un­ constitutional.13 The Court, however, applied intermediate scru­ tiny in Metro Broadcasting, Inc. v. Federal Communications Commission, a case that involved a challenge to a federal program that gave mi­ nority applicants preference for receiving television and radio broadcast licenses. 14 The Court deferred to Congress and held in Metro Broadcasting that intermediate scrutiny applied to benign race-based classifications, whether they aimed to remedy discrimi­ nation or promote diversity. 15 Metro Broadcastings affirmative ac­ tion program survived constitutional scrutiny under this standard because promoting broadcast diversity was deemed an important governmental interest and expanding minority ownership was con­ sidered substantially related to this goal.16 Thus, the affirmative ac­ tion program met both elements of intermediate scrutiny. However, the dissenting justices pointed out that Congress should not receive extra deference nor should federal affirmative action programs be reviewed under a different level of scrutiny as states'

12 448 U.S. 448, 472 (1980). A program that employs racial or ethnic criteria, even in a remedial context, calls for close examination; yet we are bound to approach our task with appropriate deference to the Congress, a co-equal branch charged by the Constitution with the power to provide for the ... gen­ eral Welfare of the United States and to enforce, by appropriate legisla­ tion, the equal protection guarantees of the Fourteenth Amendment. Id. (internal citations and quotation marks omitted). 13 488 U.S. 469, 493 (1989) (holding that all classifications based on race are sus­ pect and should be subject to the same standard of review regardless of the legislative intent). 14 497 U.S. 547 (1990). 15 Id. at 564-65 (holding that benign race-conscious measures mandated by Con­ gress, even if those measures are not "remedial," are "constitutionally permissible to the extent that they serve important governmental objectives within the power of Congress and are substantially related to achievement of those objectives"). 16 Id. at 567-68. 2004] GRUTTER AND GRATZ AND BEYOND 361 programs.17 this seemingly was the case if one compares JA. Croson Co., involving a state statute reviewed under strict scrutiny, and Metro Broadcasting, involving a federal statute reviewed under intermediate scrutiny. In Adarand Constructors, Inc. v. Pena, however, the Court re­ versed Metro Broadcasting to hold that, in the interests of applying consistent standards 'to all race-based classifications, viewing all such classifications skeptically, and applying congruent analyses to Fourteenth Amendment and Fifth Amendment equal protection cases, all race-based classifications were to be subjected to strict scrutiny.18 Since then, the Court has continued to apply strict scru­ tiny to race-based affirmative action programs. Although Justice O'Connor wrote in the Adarand opinion that "we wish to dispel the notion that strict scrutiny is 'strict in theory, but fatal in fact,' "19 it has nevertheless been difficult for race-based affirmative action plans to surviye such a stringent review. 20 Gender dassifications, unlike race-based ones, are subject only to intermediate scrutiny review,21 and this standard has made it eas­ ier for gender-based classifications to survive equal protection re­ view. 22 Gender classifications, unlike race-based ones, were made for the alleged purpose of "protecting" women rather than op­ pressing them. However, when Ginsburg argued a series of landmark gender discrimination cases before the Court in the 1970s, she demonstrated that laws intending to award women spe­ cial benefits based on stereotypical assumptions about their roles in society only perpetuated those stereotypes.23 As a result, she advo-

17 Id. at 604 (O'Connor, J., dissenting) ("[T]he Constitution's guarantee of equal protection binds the Federal Government as it does the States, and no lower level of scrutiny applies to the Federal Government's use of race classifications."). 18 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 226-27 (1995). 19 Id. at 237. 20 See, e.g., Hopwood v. Texas, 78 F.3d 932 (5th Cir. 1996) (holding that a law school's affirmative action plan that fashioned racial classifications furthered no com­ pelling state in te~est). 21 See, e.g., Reeq v. Reed, 404 U.S. 71 (1971). See alwTRIBE, supra note 4, at 1561-77. 22 See Angela q. Hooton, Constitutional Review of Affirmative Action Policies for Women of Color: A Hopeless Paradox?, 15 WIS. WOMEN'S LJ. 391, 404 (2000) (describing how gender-based affi~mative action is more easily upheld than race-based affirmative ac­ tion because it is :subject to the Jess stringent intermediate scrutiny standard). 23 Ruth Bader Ginsburg, Some Thoughts on Benign Classification in the Context of Sex, 10 CONN. L. REv. 813, 821-22 (1978) [hereinafter Some Thoughts]. Weinbergerv. Wiesen­ feld, 420 U.S. 636 (1975), involved stereotype-based alleged benefits to women. In that case, Ginsburg cltallenged a federal statute giving Social Security benefits presump­ tively to widows but not to widowers, who needed to prove their dependency. In Craig v. Boren, 429 U.S. 190 (1976), Ginsburg argued that allowing women to buy beer at age eighteen but requiring men to wait until age twenty-one was based on and perpet- 362 NEW YORK CITY LAW REVIEW [Vol. 7:357 cated that gender classifications that are constitutional should be based on "real" sex differences, not stereotype-based distinctions.24 The U.S. Supreme Court has yet to decide a gender-based af­ firmative action case under the Equal Protection Clause,25 and the lower courts are divided on the appropriate standard for reviewing such programs.26 The majority of the circuits apply the intermedi­ ate scrutiny test to gender-based affirmative action programs, mak­ ing them easier to survive judicial review than the race-based affirmative action programs, which are reviewed under strict scru­ tiny. 27 While this distinction may make some sense in the universe of legal logic, there is something perverse about the Court's analy­ sis of equal protection cases, and the distinction the Court has drawn when reviewing race-based and gender-based affirmative ac­ tion programs. The Equal Protection Clause was originally created for the purpose of instituting racial equality28 and was only later extended to gender issues;29 however, the Court's analysis of cases

uated stereotypes about women. Califano v. Goldfarb, 430 U.S. 199 (1977), involved a challenge to a policy that awarded survivors' benefits automatically to women but not to men. Duren v. Missouri, 439 U.S. 357 (1979), involved challenges to systems that required men but not women to serve on juries. Finally, Kahn v. Sheuin, 416 U.S. 351 (1974), involved a challenge to a Florida law giving a tax break to widows but not to widowers. 24 See Califano v. Webster, 430 U.S. 313, 317 (1977). In this case, compensating wo­ men for economic discrimination in the workplace was held to be based on a real gender difference and not on stereotyping. 25 Jason M. Skaggs, justifjing Gender-Based Affirmative Action Under United States v. Virginia's "Exceedingly Persuasive justification" Standard, 86 CAL. L. REv. 1169, 1173 (1998). While the U.S. Supreme Court did decide a case that dealt with a gender­ based affirmative action program, Johnson v. Transp. Agency, 480 U.S. 616 (1987), its analysis was based on Title VII, not the Equal Protection Clause. Id. at 1173 n.27. 26 Skaggs, supra note 25, at 1174-75. The Third, Ninth, Tenth, and Eleventh Cir­ cuits have used intermediate scrutiny for gender-based affirmative action, while the Sixth Circuit uses strict scrutiny, despite its application of intermediate scrutiny to all other gender-based classifications. See Engineering Contractors Ass'n v. Metro. Dade County, 122 F.3d 895, 929 (11th Cir. 1997), cert. denied, 523 U.S. 1004 (1998) (applying intermediate scrutiny to a Florida "gender-conscious" affirmative action plan); Con­ tractors Ass'n v. City of Philadelphia, 6 F.3d 990, 1000-01 (3d Cir. 1993) (applying inter­ mediate scrutiny to a gender-based government affirmative action program); Coral Constr. Co. v. King County, 941 F.2d 910, 931 (9th Cir. 1991) (applying intermediate scrutiny to a government gender-based affirmative action program); Concrete Works of Colorado, Inc. v. City of Denver, 36 F.3d 1513, 1519 (10th Cir. 1994) (holding that inter­ mediate scrutiny should apply to the gender classifications in a government affirma­ tive action program). But see Conlin v. Blanchard, 890 F.2d 811, 816 (6th Cir. 1989) (finding that both race- and sex-based classifications must be narrowly tailored to sur­ vive strict scrutiny review). 27 Skaggs, supra note 25, at 11 76. 28 Abel A. Bartley, The Fourteenth Amendment: The Great Equalizer of the American Peo­ ple, 36 AKRON L. REv. 473, 479 (2003). 29 TRIBE, supra note 4, at 1561. 2004] GRUTTER AND GRATZ AND BEYOND 363 under the Equal Protection Clause makes it easier to institute poli­ cies that promote gender equality than racial equality.30 Justice Ste­ vens noted this anomalous result in his dissent in Adarand.31

B. Ginsburg's Departure from the Tiers of Review Ginsburg's equal protection analysis stands out against this backdrop for its willingness to inject the language of fairness into an area of law that has become all too dominated by legal formal­ ism. Followingjustice Marshall's andjustice Stevens's objections to the use of three formal tiers of review,32 Ginsburg's equal protec­ tion jurisprudence is characterized by a lack of willingness to com­ press a complex area of legal analysis into a three-tiered, overly

30 See id. at 1564. 3l Adarand Co~structors, Inc. v. Pena, 515 U.S. 200, 247 (1995) (Stevens,]., dissent- ing). In Stevens's dissent, he wrote that today's lec~ure about 'consistency' will produce the anomalous result that the G

33 On the other side of the affirmative action debate, Justices Rehnquist and Scalia have also objected to the tiers of review. How is this Court to divine what objectives are important? How is it to determine whether a particular law is "substantially" related to the achievement of such objective, rather than related in some other way to its achievement? Both of the phrases used are so diaphanous and elastic as to invite subjective judicial preferences or prejudices relating to par­ ticular types of legislation, masquerading as judgments whether such legislation is directed at "important" objectives or, whether the relation­ ship to those objectives is "substantial" enough. Craig, 429 U.S. at 221 (Rehnquist, J., dissenting). Justice Scalia has also criticized the tiers of review. United States v. Virginia (VMI), 518 U.S. 515, 568 (1996) (Scalia, J., dissenting). Justice Scalia argues in his VMI dis­ sent that imposing restrictions on state activities by heightening equal protection anal­ ysis under the tiers of review is arbitrary, discretionary, and unnecessary, and long­ standing practices not expressly prohibited by the Bill of Rights should not be prohib­ ited by the Court under heightened equal protection review. Id. Despite this criticism from both the left and the right, the tiers of review still survive. 34 Ruth Bader Ginsburg, Gender and the Constitution, 44 U. CIN. L. REv. 1, 20-21 (1975) [hereinafter Gender] (writing that "while formal invocation of two polar equal protection standards continues, in a range of subject areas, lines in fact drawn by the Court appear more variegated"). 35 See Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An Interna- tional Human Rights Diawgue, 21 CARDOZO L. REv. 253, 270 (1999). 36 Id. at 269. 37 518 U.S. 515 (1996) [hereinafter VMI]. 38 Id. at 520-24. 2004] GRUTTER AND GRATZ AND BEYOND 365

and the school could have greater leeway to pursue gender-based policies.39 Virginia chose to establish a separate school for women, and VMlinvolved a challenge to the constitutionality of that plan.40 The plaintiffs argued that establishing a separate school was not an adequate rem~dy because the separate school for women did not have the same resources that VMI had, and it did not use VMI's strict "adversative method"-the refusal to use that method was based on stereotypes about women.41 Despite Ginsburg's earlier advocacy for the application of strict scrutiny to gender-based classifications in her work with the Women's Rights Project of the American Civil Liberties Union (ACLU), in V,MJ, she declined to raise the standard of review for gender-based ,discrimination to strict scrutiny. Ginsburg thereby disappointed many feminist observers; she, however, did apply a higher form of scrutiny to gender-based classifications than the Stflndard that, had previously been applied by the Court. While Ginsburg's VMI opinion technically comports with precedent and applies intermediate scrutiny to Virginia's sex-based classification, she heightens intermediate scrutiny by referring to it as "skeptical scrutiny"42 and by requiring an "exceedingly persuasive justifica­ tion" element, instead of the merely "important state interest," one previously mapdated by intermediate scrutiny.43 Her opinion de-

39 Id. at 525-26. 40 Id. at 526-27. l 41 Id. 42 Id. at 531 ("Parties who seek to defend gender-based government action must demonstrate an '((xceedingly persuasive justification' for that action. Today's skeptical scrutiny of official action denying rights or opportunities based on sex responds to volumes of history."). See a/,so Denise C. Morgan, Finding a Constitutionally Permissible Path to Sex Equality: The Young Womens Leadership School of East Harlem, 14 N.Y.L. Sett.]. HuM. RTs. 95, 105-06 (1997). Morgan notes that: the majority opinion in United States v. Virginia did not announce a new equal protection test for sex-based classifications, nor did it endorse an abandonment of the traditional intermediate scrutiny test. The United States v. Virginia opinion used the traditional statement of the interme­ diate scrutiny test interchangeably with a new phrase 'skeptical scru­ tiny,' and a less common-but not novel-formulation of the intermediate scrutiny test which requires that parties who seek to de­ fend sex-based government action must demonstrate an 'exceedingly persuasive justification' for that action. Id. (emphasis in original omitted) (internal quotation marks and brackets omitted). 43 The "exceedingly persuasive justification" standard was initially introduced in Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256, 273 (1979), and the Court later relied on the standard in Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982) andJE.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). For discussion on the development of the standard see Elizabeth A. Douglas, Note: United States v. Virginia: 366 NEW YORK CITY LAW REVIEW [Vol. 7:357 parts from the rigid three-tiered system by elevating the require­ ments of intermediate scrutiny, yet falling short of strict scrutiny. Some commentators attribute Ginsburg's reluctance to raise the standard of review for gender-based classifications to strict scru­ tiny to her desire to ensure a greater likelihood of success for af­ firmative action programs for women.44 Ginsburg has indicated that she finds it problematic that the more demanding standard for race-based discrimination makes race-based affirmative action more difficult to uphold than gender-based affirmative action.45 She may therefore have been motivated by the desire that strict scrutiny not be used to invalidate gender-based affirmative action, as was the case for the race-based affirmative action in Adarand, a case decided by the Court shortly before VMJ. 46 These concerns, combined with Ginsburg's willingness to depart from a strict three­ tiered system of review, may have contributed to her decision to adopt a heightened standard of review for the gender-based classi­ fication at issue in VMI without applying strict scrutiny. Ginsburg's VMI decision displays an overall willingness to be flexible that tran­ scends the formal and rigid tripartite system of categories of review.47 Ginsburg's dissenting opinion in Adarand also reflects her flex­ ibility with respect to equal protection analysis. She encourages

Gender Scrutiny Under an "Exceedingly Persuasive Justification" Standard, 26 CAP. U .L. REv. 173 (1997). 44 See Toni J. Ellington et al., justice Ruth Bader Ginsburg and Gender Discrimination, 20 U. HAw. L. REv. 699, 755-58 (1998). Ellington et al. write: In VMJ, Ginsburg had the opportunity to advance her lifelong position regarding judicial review of gender classifications. She argued for strict scrutiny in the past; the United States sought strict scrutiny at oral argu­ ment; and she may have been able to win a majority of the Court. Per­ haps though, as Justice Scalia pointed out in his dissent in Edmonson v. LeesviUe Concrete Co., strict scrutiny would work against minorities. Or perhaps, a recent racial classification case, Adarand Constructors, Inc. v. Pena, had proven to be too dangerous to affirmative action .... Adarand was undoubtedly on Ginsburg's mind when she drafted the VMI opinion. Id. 45 See Ginsburg & Merrill, supra note 35, at 270 ("Ironically, the less rigid standard for sex classifications has led some decisionmakers to conclude that efforts to assist women through affirmative action are less vulnerable to constitutional attack than efforts to aid historically disadvantaged racial minorities. That, I think, is a most troublesome notion."). 46 See Ellington et al., supra note 44, at 756. 47 Justice Scalia criticized the ViWI majority opinion's reliance on the "exceedingly persuasive" standard in his dissenting opinion in that case as an unjustified departure from precedent and an unsubstantiated reading of the holdings in Hogan and JE.B. United Stales v. Virginia (VMJ), 518 U.S. 515, 571-72 (Scalia,J., dissenting). 2004] GRUTTER AND GRATZ AND BEYOND 367 deference to Congress,48 and although she writes approvingly of the need for close review of affirmative action programs, she ob­ serves that the purpose of strict scrutiny is to "distinguish legitimate from illegitimate uses of race in governmental decision making, to differentiate between permissible and impermissible governmental use of race, to distinguish between a 'No Trespassing' sign and a welcome mat," as well as to prevent undue trammeling of the ma­ jority's rights.49 Her proposed standard of review is much less strict than the majority justices', and she indicates that the program at issue would survive it.50 Ginsburg's dissent represents her effort to highlight common ground with the other justices' opinions while striving to keep open the possibility that the Court would apply a different stanaard to future affirmative action cases.51 Ginsburg has also voiced opposition to differentiating rigidly between the standards for reviewing race-based and gender-based classifications. Because there is no constitutional mandate for gen­ der equality, Ginsburg, like many other advocates, relied in part on analogizing gender-based to race-based discrimination when she argued for heightened scrutiny of gender-based classifications before the Supreme Court during her years working with the ACLU.52 In Reed v. Reed,53 for example, Ginsburg contends that sex, like race, is a suspect classification, and compares sex-based to race­ based classific~tions, showing how both are based on and perpetu­ ate discrimination.54 Ginsburg also grounds her VMI opinion in part in the race discrimination line of cases by citing to Sweatt v. Painter, pointing out the similarity between "separate but equal" ar­ guments with respect to both race and gender discrimination, and

4 8 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 271 (1995) (Ginsburg, J., dissenting). 49 Id. at 276 (internal quotation marks and citations omitted). 50 Id. t 51 Id. at 271; lee also Laura Krugman Ray, Justice Ginsburg and the Middle Way, 68 BROOK. L. REv. 629, 664-65 (2003). 52 Kathleen M. Sullivan, Constitutionalizing Womens Equality, 90 CAL. L. REv. 735, 739 (2002). Sullivan writes: In the absence of gender-specific constitutional text, the story of consti­ tutionalizing American women's equality is a story of creative interpreta­ tion of the Equal Protection Clause and of advocates' bravado. Led with inventiven~ss and strategic brilliance by now:Justice Ruth Bader Gins­ burg, litigating as a founding director of the American Civil Liberties Union Wo,men's Rights Project, women's rights advocates persuaded the Court to read guarantees of sex equality into the Equal Protection Clause by analogizing sex discrimination to race discrimination. Id. 53 Reed v. Reed, 404 U.S. 71 (1971). 54 Ellington et al., supra note 44, at 724. 368 NEW YORK CITY LAW REVIEW [Vol. 7:357 noting the lack of equality in the separate educational institutions at issue in Sweatt and VMJ. 55 Elsewhere, she has noted that both sex and race are immutable characteristics bearing no relationship to ability to perform, and has suggested that suspect classes are in fact characterized by immutable traits.56 At the same time that she emphasized the similarities between race and gender to advance her goal of achieving heightened scru­ tiny for gender-based classifications, however, Ginsburg has also recognized the inaccuracy of the analogy. While race and gender are immutable characteristics (although both are more fluid than is commonly acknowledged) 57 and both have been the basis for creating formal legal disadvantages in civic life, there are differ­ ences between the two categories. 58 There is no sex-based segrega­ tion the way that there is race-based segregation, and women are not a minority with respect to men.59 Furthermore, sex-based and race-based discrimination have had different histories and motiva­ tions. 60 Some commentators argue that there remains an inherent difference between women and men with respect to child-bearing while race is now widely considered to be a social construct.61 In addition, separating methods of reviewing race and gender discrimination does not allow courts to account for the ways that individuals' identities overlap and for the fact that discrimination can be based on a combination of factors. Discrimination against Latina women, for example, can be different from that faced by African-American men. Commentators on the subject have a ten­ dency to discuss African-Americans and women, thus ignoring the existence of African-American· women.62 In contrast, Ginsburg has experienced the phenomenon of intersecting identities and has at­ tributed her difficulty in finding work as a lawyer in the 1950s to

55 See Ray, supra note 51, at 642; United States v. Virginia ( VMJ), 518 U.S. 515, 553-54 ( 1996) (concluding that "[i] n line with Sweatt, we rule here that Virginia has not shown substantial equality in the separate educational opportunities ... at VWIL and VMI"). 56 Ellington et al., supra note 44, at 725 n.220 (noting that Ginsburg differentiated between legislative actions that distinguished between those based on need or ability and those based on gender or race, or "another congenital trait of birth"). 57 See, e.g., KATE BORNSTEIN, GENDER OuTLAw: ON MEN, WOMEN AND THE REsT OF Us (1994). 58 Sullivan, supra note 52, at 742. 59 Id. at 742-43. 60 Id. at 744. 61 Id. 62 See generally Hooton, supra note 22; Serena Mayeri, Note: "A Common Fate of Dis­ crimination": Race-Gender Analogies in Lr-gal and Historical Perspective, 110 YALE LJ. 1045 (2001). 2004] GRUTTER AND GRATZ AND BEYOND 369 the discrimination she encountered as a Jew, a woman, and a mother.63 Ginsburg's equal protection analysis therefore shies away from making sharp differentiations in the standard of reviewing race-based and gender-based classifications. She recognizes the problems, both practical and conceptual, in making these types of differentiations. Consistent with her overall approach to equal protection cases and her alignment with a position that shies away from formal tiers of review, Ginsburg's affirmative action jurisprudence departs from the Court's prevailing formalism in equal protection analysis. She argues that plans that employ racial classifications to remedy the effects of discrimination against particular groups (affirmative ac­ tion plans) should be subject to a lower standard than those that aim to oppress (discriminatory plans).64 Contrary to the prevailing trend, Ginsburg favors applying a similar standard to both race­ based and gender-based affirmative action plans. She believes that affirmative action is a necessary part of a comprehensive effort to combat discrimination, and grounds this opinion in part in inter­ national law.65 Supported by human rights conventions to which the United States is a party, Ginsburg claims that affirmative action rectifies both civil and social inequalities and helps disadvantaged groups achieve a measure of freedom within the societies that op­ press them. 66 When the Supreme Court issued its opinions on the University of Michigan's affirmative action plans in Grutter67 and Gratz, 68 Gins­ burg wrote separately in both cases, concurring in Grutter69 and dissenting in Gratz. 70 These opinions are striking examples of Gins­ burg's flexible approach to equal protection analysis and her will­ ingness to rethink the entrenched tenets of prevailing equal protection review.

' 63 See Malvina Halberstam, Ruth Bader Ginsburg: The First Jewish Woman on the United States Supreme Court, 19 CARDOZO L. REv. 1441, 1446 ( 1998). 64 Gratz v. Bollinger, 539 U.S. 244, 298 (Ginsburg,]., dissenting) (2003) ("This insis­ tence on 'consistency,' would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly dis­ criminatory past, and the effects of centuries of law-sanctioned inequality remain painfully evident 'in our communities and schools." (internal citations omitted)). 65 See Ginsburg & Merritt, supra note 35, at 255 (noting that "an 'effective remedy,' in the context of centuries of discrimination ... must include at least some modes of positive governmental action"). 66 Id. at 254. 67 Grutter v. Bollinger, 539 U.S. 306 (2003). 68 Gratz, 539 U.S. at 244. fi!J Grutter, 539 U.S. at 344. 70 Gratz, 539 U.S. at 298. 370 NEW YORK CITY LAW REVIEW [Vol. 7:357

III. EQUAL PROTECTION FORMALISM IN THE Two BOLLINGER CASES

The most recent Supreme Court opinions on race-based af­ firmative action were Orutter v. Bollinger and Gratz v. Bollinger, issued in June, 2003. 71 In these cases, white students who had been re­ jected from the University of Michigan's law school and undergrad­ uate college, respectively, challenged the use of affirmative action for minorities in Michigan's admissions process. They argued that considering race in university admissions constituted an unconsti­ tutional racial classification. The Supreme Court ruled against the plaintiffs in Orutter72 and in favor of the plaintiffs in Gratz.73 Both cases were decided within the existing limited framework of apply­ ing strict scrutiny to race-based affirmative action and requiring such affirmative action programs to meet stringent requirements in order to be considered constitutional. The admissions systems that were challenged in the two Bollin­ ger cases differed. In the undergraduate admissions policy at issue in Gratz, applicants were awarded up to a total of 150 points based on a variety of factors, including grade point average (GPA) and standardized test scores.74 In addition, admissions officers awarded points for "soft factors," including in-state residency, leadership, and participation in community activities.75 Candidates with more than a certain number of points were admitted, others below a cer­ tain number of points were rejected, and those in the middle were earmarked for additional, more individualized review. 76 As part of this system, members of underrepresented minority groups re­ ceived twenty points solely because of their race or ethnicity.77 In Grutter, the law school admissions policy involved a more individualized review than did the undergraduate policy in Gratz. The law school considered applicants' LSAT scores and GPAs, and then reviewed other soft factors, including applicants' letters of recommendation, essays, and potential "contributions to the intel­ lectual and social life of the institution."78 An applicant's race and ethnicity could be included in this consideration.79 The school

71 Grutter, 539 U.S. at 306; Gratz., 539 U.S. at 244. 72 Grutter, 539 U.S. at 342. 73 Gratz., 539 U.S. at 275. 74 Id. at 253-57. 75 Id. 76 Id. 77 Id. 78 Grutter, 539 U.S. at 315. 79 Jd.at316. 2004] GRUTTER AND GRATZ AND BEYOND 371 aimed to achieve a diverse student body and to admit a critical mass of minority students.so f A. The Constraints of Diversity: The Majority's ArLalysis in Grutter and Gratz

The affirmative action policy at issue in Gratz was held to be unconstitutional, and, while the Court ultimately ruled in favor of the affirmative action plan in Grutter, both Gfatz and Cruller ad­ hered to conventional equal protection analysis'. In both cases, the Court applied strict scrutiny without delving particularly far into the complexities of racial discrimination. The end-product of this analysis is a set of opinions that seem strange~y sanitized and re­ moved from the reality of race relations in Twenty-First Century America. In both 'crutter and Gratz, the Court affirmed that all racial classifications, even those intended to benefit minorities, or those in affirmative' action programs, were subject to strict scrutiny.s1 In Grutter, the Court reiterated that, although some racial classifica­ tions were acceptable, strict scrutiny was neces$ary to identify and reject those t~at were not.82 In order to be deeried constitutional, Michigan University therefore had to demonstrate that its affirma­ tive action plans met the strict scrutiny standard of being narrowly tailored to serve a compelling governmental interest.s3 The Court followed Pow~ll's opinion in Bakke and conclutled in both Grutter and Gratz that achieving racial diversity in univrsities, especially in light of the academic freedom accorded acade,mia, was a compel-

MM I SI Gratz, 539 U.S. at 270 (finding that "(i] tis by now well ~stablished that all racial classifications reviewable under the Equal Protection Clause must be strictly scruti­ nized" (internal quotation marks omitted)); Grutter, 539 U.S., at 326 (holding that "all racial classifications imposed by government must be analyzed by a reviewing court under strict scrutiny. This means that such classifications are constitutional only if they are narrowly tailored to further compelling governmeqtal interests."). s2 Although all governmental uses of race are subject to strict scrutiny, not all are inv~lidated by it. ... Whenever the government treats any person unequally because of his or her race, that person has ~uffered an injury that falls squarely within the language and spirit of the Constitution's guarantee of equal protection. But that observation says nothing about the ultimate validity of any particular law; that determination is the job of the court applying strict scrutiny. When race-based action is necessary to further a compelling governmental interest, such action does not vio­ late the constitutional guarantee of equal protection so long as the nar­ row-tailoring requirement is also satisfied. Gmtter, 539 U.S. at 326 (internal citations and quotation marks omitted). S3 Id. at 326. 372 NEW YORK CITY LAW REVIEW [Vol. 7:357 ling state interest.s4 However, it invalidated the undergraduate ad­ missions policy, but not that of the law school, because of differences in the schools' respective affirmative action policies. In Gratz, the Court concluded that the undergraduate admis­ sions program's practice of assigning points based on minority sta­ tus was not narrowly tailored to achieving the compelling state interest of diversity according to Powell's conception of narrow tai­ loring, because it did not involve a sufficiently individualized re­ view. s5 The Court decided that the point system made admission automatic for most minimally qualified minority students and made race too decisive a factor in admissions decisions.s6 Accord­ ing to the Court, the system placed minority students in one over­ simplified category and failed to account for differences in stu­ dents' backgrounds.87 To achieve diversity, a narrowly tailored sys­ tem would involve individualized determinations about particular students, and the school would not admit a large group of minority students with similar backgrounds.ss The Gratz opinion quotes Powell's statement in Bakke that "critical [admissions] criteria are often individual qualities or experience not dependent upon race but sometimes associated with it."s9 In Grutter, however, the Court ruled that the law school's more individualized system of review, which did not establish a separate admissions track for minorities and considered race and ethnicity in the context of particular applicants' other qualifications, was ac­ ceptable.90 Under this system, membership in an under­ represented minority group was a "plus" but was not decisive in admissions decisions.91 The Court ruled that this admissions pro­ cess was more consistent with the Powell opinion in Bakke, and it constituted narrowly tailored means to achieve the compelling state interest of diversity.92

S4 Id. at 329 (finding that "[w]e have long recognized that, given the important purpose of public education and the expansive freedoms of speech and thought asso­ ciated with the university environment, universities occupy a special niche in our con­ stitutional tradition"). S5 Gratz, 539 U.S. at 271 (referring to Justice Powell's emphasis on considering each applicant individually and assessing his or her qualities and ability to diversify the class, and finding that the college did not provide a consideration of that type). S6 Id. S7 Id. at 273-74. ss Id. S9 Id. at 272-73. 90 Cruller v. Bollinger, 539 U.S. 306 (2003). 91 Id. at 334. 92 ... [T]he Law School's admissions program bears the hallmarks of a narrowly tailored plan. As Justice Powell made clear in Bakke, truly indi- 2004] GRUTTER AND GRATZ AND BEfOND 373

In addition, the Court in Grutter ruled that the law school's goal of achieving a critical mass of minority students was accept­ able.93 According to the Court, since diversity was a compelling state interest and admitting a critical mass of minority students was important to achieving the educational benefits of diversity, striv­ ing for a critical mass was satisfactory.94 The edu:cational benefits of diversity, according to the Court, included achieving cross-racial understanding, breaking down stereotypes, and 1preparing students for citizenship in a diverse society.95 1 Finally, the Court ruled that affirmative action programs should not Ol,ltlast the need for them, and they should include a sunset provision with periodic reviews to ensure that they are re­ tired once diversity can be achieved without them.96 Although the Court ultimately approved the affirmative action plan in Grutter, the Court in both Grutter and Gratz discussed affirm­ ative action only within the narrow constraints of the three-tiered equal protection review. Its failure to concom,itantly deal openly and frankly with the gravity of racism and its effects on minority students resu~ted in a glaringly incomplete discussion of affirmative action. The Court decided that rectifying general societal discrimi­ nation was nbt a compelling state interest,97 so it was limited to

vidualized consideration demands that race be used in a flexible, nonmechanical way. It follows from this mandate that universities can­ not establish quotas for members of certain racial gr6ups or put mem­ bers of those groups on separate admissions tracks. N9r can universities insulate applicants who belong to certain racial or ethnic groups from the competition for admission. Universities can, however, consider race or ethnicity more flexibly as a "plus" factor in the context of individual- ized consideration of each and every applicant. I We are satisfied that the Law School's admissions ~rogram, like the Harvard plan described by Justice Powell, does not operate as a quota... .' ' Id. 93 Id. at 330. 94 Id. at 328-31. 95 Id. at 330. 96 Id. at 342. 1 97 See, e.g., Regents of Univ. of Calif. v. Bakke, 438 U.S. 265r 310 ( 1978) . . . . [T] he purpose of helping certain groups whom ,the faculty of the Davis Medical School perceived as victims of "societpl discrimination" does not justify a classification that imposes disadvan~ges upon persons like respondent, who bear no responsibility for whatever harm the bene­ ficiaries of the special admissions program are thought to have suffered. To hold othenvise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institµtions throughout the Nation could grant at their pleasure to whatever groups are per­ ceived as victims of societal discrimination. That is a s,tep we have never approved. 374 NEW YORK CITY LAW REVIEW [Vol. 7:357 discussing affirmative action within the narrow constraints of either remedying very specific institutional discrimination98 or, as in Grut­ ter and Gratz, of achieving diversity. However, societal discrimina­ tion is at the heart of the need for affirmative action, and it is doubtful that a discussion of affirmative action that leaves out such an integral feature could yield a satisfying result.

B. Ginsburg's Approach: Transcending Formalism In contrast to the majority opinions, Ginsburg's dissent in Gratz and concurrence in Grutter99 are notable for their straightfor­ ward discussion of issues of justice and fairness, their encourage­ ment of transparency in affirmative action programs, and their flexible treatment of equal protection cases. In both cases, Gins­ burg contributes an honest perspective on racial inequality that is sorely lacking in the majority opinions, and demonstrates a corre­ sponding flexibility toward equal protection review. In Gratz, Ginsburg argues that using the same standard of re­ view for all race-based classifications, including ones that attempt to remedy the effects of discrimination rather than promote it, is inappropriate.100 Instead, she urges that government decision-mak­ ers be allowed to distinguish between policies that burden groups that are already victims of discrimination from those that strive to remedy discrimination and its effects. 101 Ginsburg contends that race is a suspect category only because it has traditionally been

Id. 98 See, e.g., Cotterv. City of Boston, 323 F.3d 160 (1st Cir. 2003) (holding that a police department plan to promote minorities served a compelling state interest of rectifying past discrimination within the department). 99 Gratz v. Bollinger, 539 U.S. 244, 298 (2003) (Ginsburg,]., dissenting); Grntter, 342 U.S. at 344 (Ginsburg,]., concurring). 100 Gratz, 539 U.S. at 298. [T] he Court once again maintains that the same standard of review con­ trols judicial inspection of all official race classifications. This insistence on 'consistency,' would be fitting were our Nation free of the vestiges of rank discrimination long reinforced by law. But we are not far distant from an overtly discriminatory past, and the effects of centuries of law­ sanctioned inequality remain painfully evident in our communities and schools. Id. (internal citations omitted). 101 Id. at 302. To avoid conflict with the equal protection clause, a classification that denies a benefit, causes harm, or imposes a burden must not be based on race. In that sense, the Constitution is color blind. But the Constitu­ tion is color conscious to prevent discrimination being perpetuated and to undo the effects of past discrimination. Id. 2004] GRUTTER AND GRATZ AND BEJ(OND 375 I used for the purpose of discrimination, not of r~medying discrimi­ nation, and that the Constitution only prohibits' classifications that deny benefits, cause harm, or impose burdens, :not those that cor­ rect inequalities.102 In addition, affirmative action in university ad­ missions need not and does not impose an undue burden on white students, as demonstrated by a study showing that the statistical chances for the acceptance of white applicants are not significantly diminished when there are a large number of p~aces in a class and many more white applicants than minority ones.103 I Ginsburg's Gratz dissent also cites studies al}.d statistics demon- strating the racial inequalities in the United ~ates that create a need for government programs to promote quality. 104 She de­ scribes the C?ntinuing racial disparities in e ployment, health care, poverty rates, schooling, earnings, real ~state transactions, and consumer transactions, as well as the pervasive conscious and unconscious ~iases that prevent true equality in all areas of soci­ ety.105 Ginsburg further observes that permitting race-based classifi­ cations that promote, rather than hinder, equality is consistent with international human rights doctrine.106 She endorses Michi­ gan's "fully disclosed," point-based undergraduate affirmative-ac­ tion plan because having an open plan is be~ter than achieving the same results surreptitiously, through rinks, nods, and disguises." 107 The Gratz, majority opinion asserted that cl se scrutiny of race­ based classifidations continues to be necessary because it is impor­ tant to ensure that these classifications are noG "in reality malign, but IJ1asquerading as benign," and that they do not unduly burden members of tpe once-preferred groups. 108 According to Ginsburg, Michigan's undergraduate policy would pass this test because the policy genuinely aimed to rectify the effects of current and past discrimination and there was no evidence of undue harm to non-

102 Id. l 103 Id. at 303. "In any admissions process where applicants greatly outnumber ad­ mittees, and where white applicants greatly outnumber min~rity applicants, substan­ tial preferences for minority applicants will not significan y diminish the odds of admission facing, white applicants." Id. (citing Goodwin Li 1, The Causation Fallacy: 1 Bakke and the Bafic Arithmetic of Selective Admissions, 100 MICH. L. REv. 1045, 1049 (2002)). t : 104 Id. at 299-01. 105 Id. t 106 See id. 107 Id. at 305. 108 Id. at 302. 376 NEW YORK CITY LAW REVIEW [Vol. 7:357 minority students.109 Similarly, Ginsburg's concurrence in Grutter highlights sup­ port for her position drawn from international human rights doc­ trine that uses affirmative action to protect groups that have historically been subject to discrimination and then discontinues these programs once their objective of remedying discrimination and its effects is achieved.U° Citing to the International Conven­ tion on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women,111 Ginsburg again emphasizes the persistence of racial bias in that members of minorities still attend predominantly segregated schools with fewer educational resources.112 She re­ marks somewhat skeptically that the Court could "hope ... but not firmly forecast" that affirmative action programs could be discon­ tinued in twenty-five to thirty years because of the achievement of nondiscrimination and genuine equal opportunity.113 Ginsburg's opinions in Gratz and Grutter offer support for af­ firmative action in the persistence of discrimination and its effects and consequently urge the application of a different standard of review to remedial classifications than to invidious ones. Ginsburg turns to international human rights doctrine to bolster her posi­ tion. She advocates for a standard of review for affirmative action that weeds out malign classifications masquerading as benign, with­ out unduly burdening members of the majority. In addition, Gins­ burg supports fully disclosed affirmative-action plans, but expresses skepticism about the possibility of being able to sunset affirmative­ action plans in the near future.

IV. THE RoAD AwAY FROM EQUAL PROTECTION FORMALISM: GINSBURG'S CONTRIBUTIONS IN GRU1TER AND GRATZ Ginsburg's analysis of affirmative action in Gratz and Grutter contributes several important points to the pro-affirmative action, anti-formalism position. Ginsburg addresses issues of societal dis­ crimination and racial injustice openly and transparently and advo­ cates for similar transparency in affirmative action programs. She also emphasizes the importance of international human rights doc-

109 Id. 302-03 ("[T]here [has not] been any demonstration that the College's pro­ gram unduly constricts admissions opportunities for students who do not receive spe­ cial consideration based on race."). 110 Grutter v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg, J., concurring). 111 Id. 112 Id. at 345. 11 3 Id. at 346. 2004] GRUTTER AND GRATZ AND BE'(OND 377 I trine by partly grounding her argument in it. j Finally, she offers alternate standards of review that retain some of the conceptual linchpins of equal protection analysis while dispensing with the ex­ cessive formalism of the Court's prevailing equa1 protection review. I A. Laying the Human Rights Foundation 1 The first striking aspect of Ginsburg's opiLons in Gratz and Grutteris their grounding in an open discussion pf societal discrimi­ nation and racial injustice. The Gratz and Grut{er majorities main­ tain that, in the absence of particularized discrimination, race­ based affirmative action may be justified by the' state's compelling interest in promoting diversity. 114 Ginsburg, ho,wever, supports af­ firmative action as necessary to fighting general societal discrimina­ tion, and uses international human rights docttine, in addition to 1 United States precedent, to support her view. In contr~st to the Court's rejection of atrmative action to remedy general societal discrimination as a co , pelling state inter­ est for race-based affirmative action, 115 Ginsbur discusses the per­ sistence of so~ietal discrimination and its effect:S as justification for affirmative action, 116 and thereby suggests tha~ affirmative action should be grounded in the need to compensa,te minority groups for societal wrongs committed against them. Sh1e writes that " [ t] he stain of generations of racial oppression is still itsible in our society ... and the determination to hasten its remov 1 remains vital."117 Ginsburg believes that general historic oppressi n itself constitutes justification f9r adopting affirmative-action pla s. Consistent with her discomfort with the rmal standards of review relied 6n by the Court and with the Court's refusal to lower its standard of review for remedial race-based dlassifications, Gins­ burg's dissenting opinion in Gratz does not dw~ll on diversity as a I 114 Id. at 326-28. 115 Regents of Univ. of California v. Bakke, 438 U.S. 265, 31 (1978) . . . . [T]he•purpose of helping certain groups whom he faculty of the Davis Medical School perceived as victims of "societ I discrimination" does notj~stify a classification that imposes disadvant ges upon persons like respoqdent, who bear no responsibility for whatev r harm the bene­ ficiaries of•the special admissions program are thought to have suffered. To hold otherwise would be to convert a remedy heretofore reserved for violations of legal rights into a privilege that all institutions throughout the Nation could grant at their pleasure to whateve1 groups are per­ ceived as victims of societal discrimination. That is a s ep we have never approved. Id. 116 Gratz v. Bollinger, 539 U.S. 244, 298-01 (2003) (Ginsbu g, J., dissenting). 117 Id. at 304. 378 NEW YORK CITY LAW REVIEW [Vol. 7:357 compelling state interest to justify affirmative action. Her concur­ ring opinion in Grutter, while explaining that the qualifications for a compelling state interest were not at issue because the majority ruled that the affirmative-action plan satisfied strict scrutiny, 118 dis­ cusses general societal injustice. In both cases, Ginsburg justifies the need for affirmative action programs for disenfranchised mi­ norities with statistics on the nationwide persistence of discrimina­ tory attitudes and the lingering effects of past discrimination.119 In order to pass constitutional muster, affirmative action should not need to be justified as a means of achieving diversity; instead, the general societal injustices committed against certain racial and eth­ nic groups should themselves provide sufficient justification for taking remedial action. Ginsburg's position is drastically different from the majority's constrained view of what constitutes a compelling state interest, as illustrated by her support for transparency in affirmative action ad­ missions programs in higher education. Ginsburg writes that col­ leges should be allowed to rely on the more overt type of affirmative action at issue in Gratz in response to the need for com­ bating general societal discrimination. "One can reasonably antici­ pate," she writes, that colleges and universities will seek to maintain their minority enrollment-and the networks and opportunities thereby opened to minority graduates-whether or not they can do so in full candor through adoption of affirmative-action plans of the kind here at issue. Without recourse to such plans, institutions of higher education may resort to camouflage.120 Ginsburg therefore encourages adoption of affirmative-action plans as a direct response to historical oppression, which would allow universities to be candid and overt in their reliance on such plans. To Ginsburg, affirmative action is an essential part of any ef­ fort to fight discrimination. Eliminating discrimination and its ef­ fects means both fighting discrimination itself and correcting its consequences.121 Affirmative action, according to Ginsburg, ad­ vances both civil and economic rights by redressing the lingering

118 Cruller, 539 U.S. at 345. 119 Gratz, 539 U.S. at 298-01; Grntter, 539 U.S. at 345. i20 Gratz, 539 U.S. at 276. 121 Ginsburg & Merritt, supra note 35, at 256-57. Ginsburg quotes U.S. President Lyndon Johnson when he famously declared: ''You do not take a person who, for years, has been hobbled by chains and liberate him, bring him up to the starting line of a race anct then say, 'You are free to compete with all the others."' Id. at 255-56. 2004] GRUTTER AND GRATZ AND BEYOND 379 effects of civil rights deprivation and by ensuring the economic and social well-being of groups that experience disproportionate pov­ erty, unemployment, and poor health.122 The human rights argument that Ginsburg advances in her two Bollinger opinions is consistent with her wider perspective on affirmative action and her belief that affirmative action is necessary to achieve equality. Ginsburg's use of international human rights documents underscores her argument that basic fairness and tran­ scendent, and universal principles of human decency require com­ pensating minorities for social and economic wrongs perpetrated against them. Ginsburg is also generally interested in promoting comparative law and international law analysis in Supreme Court cases, and her willingness to look to international and comparative law for support for affirmative action stems from her belief that doing so can help the Court navigate the difficulties of creating effective affirmative action programs.123 While other countries

122 Id. at 254. Ginsburg writes: Affirmative action stands at the intersection of these two complemen­ tary categories. Affirmative action aims to redress historic and lingering deprivations of the basic civil right to equality, the legacy of slavery in the United States, for example, or of the caste system long entrenched in India. It was also conceived as a means to advance the economic and social well~being of women, racial minorities, and pthers born into groups or communities that disproportionately experfence poverty, un­ employment, and ill health. Focusing on affirmative action, we may bet­ ter comprehend how the two classes of rights (civil and economic), though on~e and still set apart by politicians, jurists, and scholars, com­ monly relate to promotion of the health and welfare of humankind. Id. l23 See Ruth Bader Ginsburg, Sherman]. Bellwood Lecture: Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, 40 IDAHO L. REV. (2003): The United States was once virtually alone in exposing laws and official acts to judicial review for constitutionality. But particularly in the years following World War II, many nations installed constitutional review by courts as one safeguard against oppressive government and stirred up majorities. National, multinational, and international human rights charters and tribunals today play a key part in a world with increasingly porous borders. My message in these remarks is simply this: We are the losers if we do not both share our experience with, and learn from others. Tliat message is hardly original. A prominent jurist put it this way 14 years ago: For nearly a century and a half, courts in the United States exercising the power of judicial review [for constitutionality] had no precedents to look to save their own, because our courts alone exer­ cised this sort of authority. When many new constitutional courts were created af~er the Second World War, these courts naturally looked to decisions 6f the Supreme Court of the United States, among other sources, fo'r developing their own law. But now that constitutional law is solidly grounded in so many countries, it is time that •the United States 380 NEW YORK CITY LAW REVIEW [Vol. 7:357 have looked to the United States in their affirmative action juris­ prudence, the U.S. Supreme Court has not exhibited a similar will­ ingness to use comparative and international law. 124 Ginsburg cites two international human rights documents that support the use of affirmative action as a measure for remedying discrimination in her opinions in Grutterand Gratz: the Convention on the Elimination of All Forms of Racial Discrimination (CERD) 125 and the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). 126 (The United States 127 has ratified CERD and signed but not ratified CEDAW. ) As Gins­ burg has previously written, CEDAW aims to eliminate the prejudices that assign women to certain roles, to create recognition of common responsibility for childrearing, and to allow affirmative action for women to speed up the process of achieving equality. 128 CERD calls for special and discrete measures to ensure equal rights and freedoms and the use of affirmative action when called for. 129 Ginsburg grounds her analysis of affirmative action in Grutter and Gratz in an open discussion of historical discrimination and its effects as well as in international human rights doctrine in a way that starkly differentiates her opinions from the majority's con­ strained, diversity-bound position. Her support for allowing affirm­ ative action programs to be overt in their efforts to combat racial discrimination is consistent with her general open and transparent approach to the need for affirmative action programs.

courts begin looking to the decisions of other constitutional courts to aid in their own deliberative process. Id. at 1-2 (alteration in original) (internal citations omitted). 124 Id. 125 Gratz, 539 U.S. at 302; Cruller v. Bollinger, 539 U.S. 306, 344 (2003) (Ginsburg,]., concurring) (citing the International Convention on the Elimination of All Forms of Racial Discrimination, U.N. Doc. A/6014, Art. 2(2) (1965), available at http:// www.unhchr.ch/html/menu3/b/ d_icerd.htm). 126 Gratz, 539 U.S. at 302; Cruller, 539 U.S. at 344 (citing the Convention on the Elimination of All Forms of Discrimination Against Women, U.N. Doc. A/34/46, Art. 4(1) (1979), available at http://www.un.org/womenwatch/daw/cedaw/). l27 Status of Ratifications of the Principal International Human Rights Treaties, Office of U.N. High Commissioner for Human Rights, at 11 (2004), available at http:/ /www.un. org/womenwatch/daw/cedaw/states.htm; http:/ /www.unhchr.ch/pdf/report.pdf. 128 Ginsburg & Merritt, supra note 35, at 259. 129 Id. at 260-61. It should be noted that Ginsburg has also written about the im­ plicit support for affirmative action provided by the Universal Declaration of Human Rights. Id. at 261. She does not, however, include that document in her Cruller and Gratz opinions, presumably because it is a declaration, not a formal treaty or conven­ tion, and therefore does not have the same weight as CEDAW and CERD. 2004] GRUTTER AND GRATZ AND BEYOND 381

B. Loosening 'the Language of Equal Protection Ginsburg's approach to reviewing affirmative action programs is consistent with her general view of affirmative action as a re­ sponse to general societal discrimination. She creates a more flexi­ ble equal protection standard while remaining grounded in precedent by :referring to certain concepts that characterize pre­ vailing equal protection jurisprudence, but altering her word choice to avoid the strict formalistic definitions associated with mainstream eflual protection analysis. Thus, Ginsburg describes the need for "close review" of affirmative action programs as to en­ sure that they are not malign classifications masquerading as be­ nign and that they do not unduly burden majority groups.130 In doing so, she invokes the same general concept of heightened re­ view of racial classifications that characterizes prevailing equal pro­ tection analysjs, yet dispenses with the formalistic baggage that accompanies Stich analysis. Moreover, Ginsburg's standard for what constitutes art undue burden is more flexible than that of the majority. Ginsburg has employed this strategy of relying on conven­ tional equal protection analysis but stretching the parameters of that analysis by altering her language before. For example, Gins­ burg has written that affirmative-action plans should match the in­ juries to be remedied.131 Ginsburg thereby invokes the concept of "narrowly tail9red" by way of analyzing the targeting programs in the context qf the societal problems they are to remedy, while evading the loaded connotations of that concept. Likewise, Ginsburg's proposed test for affirmative action pro­ grams echoes the majority's concern to avoid unduly burdening white students, 132 but exhibits greater flexibility in addressing that

130 Gratz, 539 U.S. at 302. Ginsburg writes that "[c]lose review is needed to ferret out classifications in reality malign, but masquerading as benign, and to ensure that preferences are not so large as to trammel unduly upon the opportunities of others or interfere too harshly with legitimate expectations of persons in once-preferred groups" (internal citations omitted). 131 Gender, supra note 34, at 29 (noting that "[m]ovement in [the direction of genu­ ine neutrality with respect to sex-based discrimination] ... requires remedies neces­ sary and proper to alter deeply entrenched discriminatory patterns. But changing those patterns entails recognition that generators of race and sex discrimination are often different. Neither ghettoized minorities nor women are well served by lumping their problems ifl the economic sector together for all purposes."). 132 In finding that "the University's policy, which automatically distributes 20 points, or one-fifth of the points needed to guarantee admission, to every single 'un­ derrepresented minority' applicant solely because of race, is not narrowly tailored to achieve the interest in educational diversity[,]" the Court is effectively saying that in order to survive equal protection review, a race-based affirmative action must give the 382 NEW YORK CITY LAW REVIEW [Vol. 7:357 concern. Ginsburg differs from the majority in her belief that "the University of Michigan's undergraduate admissions policy did not unduly burden white students.133 She also mentioned the need for this type of test in her dissenting opinion in Adarand, but con­ cluded that the program at issue in Adarand would survive it. 134 Recently, Ginsburg has noted that, although affirmative action has the potential to promote civil and economic rights, its major draw­ back is that it generates accusations of reverse discrimination.135 However, she does not view this phenomenon as an obstacle like the majority does, and recommends looking to other countries and to international human rights law for guidance in navigating these difficulties. 136 While Ginsburg shares the majority's concern on un­ due burdening, she differs from it in finding that neither Michi­ gan's undergraduate nor its graduate affirmative action program constitutes an undue burden, and therefore sets a more flexible standard for what constitutes an undue burden.137 The system of affirmative action analysis that Ginsburg advo­ cates is therefore more flexible than the majority's while adhering to some of the principles of prevailing equal protection review.

C. Race-Based and Gender-Based Affirmative Action: Different Contexts, Common Themes Ginsburg's Gratz dissent simplifies and loosens equal protec­ tion review by applying a standard for race-based classifications in affirmative action programs that is analogous to the one she advo­ cates for gender-based classifications. Ginsburg dispenses with the traditional differentiation between reviews of race-based and gen­ der-based differentiations in favor of applying a similar test to both. The first part of Ginsburg's test in Gratz-affirmative action

smallest edge possible to minority students to promote the school's interest in diver­ sity so as to impose the lowest burden possible on other students. See Gratz, 539 U.S. at 270. 133 Id. at 303 (finding that "there has [not] been any demonstration that the Col­ lege's program unduly constricts admissions opportunities for students who do not receive special consideration based on race"). 134 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 275 (1995) (Ginsburg,]., dissent­ ing). "Properly, a majority of the Court calls for review that is searching, in order to ferret out classifications in reality malign, but masquerading as benign." Id. 135 Ginsburg & Merritt, supra note 35, at 281. 136 Id. at 282. 137 Ginsburg's finding that the university's affirmative action plan for minority un­ dergraduates did not impact white students' chances of admission in a statistically significant way differs from the majority finding that the undergraduate school's auto­ matic awarding of points to minority candidates was an undue burden on white appli­ cants. Gratz. 539 U.S. at 303. 2004] GRUTTER AND GRATZ AND BEYOND 383 programs should not be malign classifications masquerading as be­ nign 138-is the same as the one she has proposed for gender-based classifications. Ginsburg has written extensively on the problem of malignant classifications masquerading as benign in the context of gender-based classifications. Most of her work as the legal director of the ACLU Women's Rights Project and as the lead counsel in a string of 1970s gender discrimination cases demonstrated that many of the g~nder-based classifications that were justified as bene­ fiting women 1-Vere in fact based on stereotypes about women's role as dependent;- and men's role as providers. 139 Ginsburg argued that, in the aggregate, such classifications perpetuated stereotypes that were detrimental to women's efforts to achieve social equality. 140 Ginsburg's gender jurisprudence has focused on eradicating assumptions about people's capabilities based on their gender. 141 Although these cases have been criticized as taking away the few benefits belonging to women, 142 their goal wa~ to destabilize the system of gender roles. 143 Although Ginsburg has been criticized for opposing benefits for caregivers, 144 what she opposes, in reality, is the use of gender to signify caregiver status.145 She favors benefits for caregivers., but advocates for creating these benefits as caregiver benefits, rather than women's benefits.146 The cases Ginsburg argued with the ACLU challenged bene­ fits that were designed in response to the "ideal worker/marginal­ ized caregiver" dyad. 147 For example, Reed v. Reed involved a challenge to a statute that preferred males as estate administrators

138 Id. at 302. , l39 Joan Willia111s, Do Women Need Special Treatment? Do FeT(linists Need Equality? 9 J. CONTEMP. LEGAL lssuES 279, 301 (1998). 140 Some Thoughts, supra note 23, at 821-22. 141 Ray, supra ryote 51, at 646 (writing, "[t]he rejection of 'unwarranted assump­ tions' about the capacities of individuals has long been central to Ginsburg's thinking about women's rights."). 142 Williams, supra note 139, at 301-02, notes that Ginsburg and other formal equal­ ity feminists have been criticized for not responding to the needs of working class and single mothers. Ginsburg's ACLU cases have been criticized for depriving women of rights or giving rhen the few benefits formerly accorded only to women. Williams counters that Ginsburg was not striving to eliminate caregiver's benefits, only to break down societal stereotypes about gender roles. 143 Id. 144 Id. 145 Id. 146 Id. at 302-03. 147 Id. at 301. Williams notes that Ginsburg never opposed caregivers' benefits ex­ cept in Kahn v. Shevin, a case that Ginsburg did not support, had not hand-picked as she had the other ACLU cases, and that she only argued for damage-control pur- 384 NEW YORK CITY LAW REVIEW [Vol. 7:357 when males and females of the same degree of relationship were vying for that position.148 Ginsburg argued that giving one gender preference over another based on gender stereotypes only to fur­ ther administrative convenience by circumventing the need to hold hearings on the merits was an arbitrary legislative choice that violated the Equal Protection Clause. 149 Similarly, Ginsburg argued in Frontiero v. Richardson that a military policy automatically grant­ ing military wives housing and medical benefits while requiring military husbands to affirmatively prove their dependence on their service member wives was an unconstitutional, detrimental classifi­ cation that was disguised as a benefit to women but was based on and perpetuated stereotypes about women's dependency. 150 By way of a number of other similar cases throughout the 1970s, Ginsburg slowly chipped away at gender-based stereotypes and convinced the Court to apply heightened review to gender discrimination cases.151 She demonstrated that laws that were held out as benefi­ cial to women were, in fact, poorly disguised efforts to perpetuate stereotypes about women's roles. Ginsburg has argued that, because of the history of disguising detrimental gender classifications as beneficial, the masquerading problem emerged in the context of gender-based classifications.152 Past lax scrutiny of gender-based classifications led to this problem, and she demonstrated the need for close review of allegedly posi­ tive gender classifications. 153 However, Ginsburg has also written about the masquerading problem in the context of race-based af­ firmative action. In her dissenting opinion in Adarand, Ginsburg wrote that the Court appropriately called for close review of race­ based affirmative action to weed out programs that may have this

poses. According to Williams, Ginsburg advocates for basing laws on "functional cate­ gories" rather than gender proxies. Id. at 302. 148 Reed v. Reed, 404 U.S. 71 (1971). 149 See Sullivan, supra note 52, at 739-40; Gender, supra note 34, at 10. 150 See Sullivan, supra note 52, at 740. 151 See supra note 23. 152 Some Thoughts, supra note 23, at 814 ("Because of the historical tendency of lawmakers and jurists to regard virtually all gender-based classifications as designed for women's benefit or protection, the notion of affirmative action in the context of sex presents a special problem."). 153 Id.; see also Ginsburg & Merritt, supra note 35, at 258: Patriarchal rules long sequestered women at home in the name of "motherhood," rather than allowing them to integrate parenthood with paid labor. It is not always easy to separate rules that genuinely assist mothers and their children by facilitating a woman's pursuit of both paid work and parenting, from laws that operate to confine women to their traditional subordinate status, and to relieve men of their fair share of responsibility for childraising. 2004] GRUITER AND GRATZ AND BEYOND 385 quality.154 Ginsburg therefore applied a common test to both gen­ der- and race-based classifications when she wrote in Gratz that af­ firmative action programs should be reviewed to ensure that they do not constitute malign classifications masquerading as benign. Ginsburg's history of applying the standard articulated in Califano v. Webster, 155 displays her desire to unify the standards of review for race- and gen!=ler-based classifications. The standard in Califano v. Webster, incorporates what might be called the "'masquerade test."156 In Webster, the Court upheld a law that altered the calculation of women's Social Security retire­ ment benefits to compensate for discrimination-based lower wages and mandatory early retirement for women as permissible affirma­ tive action. 157 The Court's decision was based on its holding that legislation that directly and specifically addresses gender-based dis­ crimination apd strives to remedy it through affirmative action pro­ grams that are closely targeted to the desired end is constitutional. In contrast, legislation based on stereotypes that does not aim to remedy discrimination is unconstitutional.158 In other words, Web­ ster requires that affirmative action programs be judged according to whether they genuinely and specifically redress discrimination, or whether they are in fact malignant classifications that are based on and perpetuate stereotypes, in order to eliminate improper clas­ sifications. 159 This case thus allows for preserving equal treatment while allowir;ig for genuine compensation for past general discriminatio~.

l54 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 275-76 ( 1995) (Ginsburg, J., dissenting). 155 430 U.S. 313 (1977). l56 See Some Thoughts, supra note 23, at 823 ("Webster . .. attempts to preserve and to bolster a general rule of equal treatment while leaving a corridor for genuinely com­ pensatory classification."). 157 See Webster, 430 U.S. 313, 318 (1977). 158 Id. at 317 (holding that [t]he more favorable treatment of the female wage earner enacted here was not a J'esult of archaic and overbroad generalizations about women, or of the role-typing society has long imposed upon women, such as casual assumptions that women are the weaker sex or are more likely to be child-rearers or dependents (internal quotations and citations omitted)). 159 Some Thougltts, supra note 23, at 823. Ginsburg writes that [i]f the Court adheres to the Webster synthesis, it will uphold a gender classification justified as compensatory only if in fact adopted by the legislature for remedial reasons rather than out of prejudice about 'the way women (or men) are,' and even then, only if the classification neatly matches the remedial end. Id. 386 NEW YORK CITY LAW REVIEW [Vol. 7:357

Ginsburg has used the Webster standard in her gender-based equal protection jurisprudence. She relied in part on the Webster standard in her opinion in VMI, 160 arguing that the VMI establish­ ment of a separate and inferior school for women perpetuated wo­ men's legal, social, and economic inferiority rather than compensating them for their economic and social disabilities,161 because the separation of the two schools was based on "generaliza­ tions about the way women are."162 Furthermore, the remedy of establishing a special school for women did not closely fit the viola­ tion, nor did it eliminate discriminatory effects, and prevent future discrimination, 163 because it did not afford women equal facilities, opportunities, or funding. In addition, the substitute school did not provide women with the unique characteristics of a VMI educa­ tion or the benefits of a VMI degree. 164 In her dissenting opinion, 165 Ginsburg also advocated using this standard to prohibit the gender-based classification involved in Mil/,er v. Albright. 166 In Miller, the 21-year-old Philippines-born daughter of a Filipino mother and a U.S. Air Force member father challenged a law that prevented her from being granted citizen­ ship because it required the citizen father of a foreign-born child with a non-citizen mother to legally attest to paternity before the child's eighteenth birthday in order for the child to be eligible to become a citizen.167 The law did not require this procedure if the mother was a citizen and the father was not.168 The Court upheld the classification on the grounds that it applied to a specific set of circumstances, which was not based solely on gender, and its pur­ poses, to foster the development of a healthy relationship between the child and the father and to encourage early ties with the United States, were legitimate.169 In Miller, Ginsburg dissented on the ground that the statute was based on overbroad stereotypes

160 "Sex classifications may be used to compensate women for particular economic disabilities [they have] suffered," citing Califano v. Webster, 430 U.S. 313 (1977). United States v. Virginia (VMJ), 518 U.S. 515, 533 (1996); see also Morgan, supra note 42, at 105. 161 VMJ, 518 U.S. at 533-34. 162 Id. at 550. 163 Id. at 547. 164 Id. at 553. 165 Id. at 460-71. 166 523 U.S. 420 (1998). 167 Id. at 424-26. The challenged statute was 8 U.S.C. § 1409(a). Id. at 427. 168 Id. 169 Id. at 442-45. 2004] GRUTTER AND GRATZ AND BEYOND 387 about men and women's relationships with their children, 170 even though it appeared to be a form of affirmative· action for women that granted them a benefit not allowed to men.171 She wrote that the statute should not survive the Webster test because of its reliance on overgeneralizations. Ginsburg has previously argued in favor of applying the Webster test to race-based affirmative action as well. 172 She has written that the Webster standard should be adopted in affirmative action cases and could have been used by the Bakke Court to uphold the case's race-based affi.rmative action program.173 Under the Webster stan­ dard, the program in Bakke would be constitutional because it di­ rectly redressed the effects of social and economic discrimination and it did not/involve "historic role-typing nourished by race-based animus."174 However, despite her earlier advocacy for adopting the Webster standard in rate-based affirmative action cases, Ginsburg's Gratz de­ cision uses only half of the standard, the masquerade test, and omits the part of the Webster test that requires that affirmative ac­ tion programs be closely targeted to the injury they are striving to redress. This latter element is related to Ginsburg's other concern, which also is not discussed in the context of race in Gratz, namely, that gender should not serve as a proxy for other characteristics where it would be possible and more fitting to make a classification based on gender-neutral characteristics.175 It is impossible to know

170 Id. at 460 (finding that "[o]n the surface,§ 1409 treats females favorably. In­ deed, it might be seen as a benign preference, an affirmative action of sorts."). 171 Id. at 469 (holding that "[e]ven if one accepts at face value the Government's current rationale, it is surely based on generalizations (stereotypes) about the way women (or men) are .... We have repeatedly cautioned, however, that when the Government controls gates to opportunity, it may not exclude qualified individuals based on 'fixed notions concerning the roles and abilities of males and females ...." (internal quotation marks omitted)). 172 Some Thoughts, supra note 23, at 823-24. 173 Id. Ginsburg wrote that [t]he line between impermissible adverse discrimination and permissi­ ble rectification of past injustice sketched in Webster may well be elabo­ rated in the Court's resolution of more heated 'affirmative action' controversies. In Regents of California v. Bakke, for example, involving an equal protection challenge by a white male to a state medical school's special minorities admission program, the Webster opinion could have served as a framework for decision. Id. 174 Id. at 824. 175 See Miller v. Alhright, 523 U.S. 420, 470-71 (Ginsburg, J., dissenting). Ginsburg wrote that alleged differences between mothers and fathers do not 'justify reliance on gender distinctions when the alleged purpose-assuring close ties to the United States-can be achieved without reference to gender." Id. at 470. 388 NEW YORK CTTY LAW REVIEW [Vol. 7:357

Ginsburg's motivation for leaving out the "close targeting" element of the Webster test. It may be that she omitted it because she did not find it applicable in the context of race. Or, it may be that social conditions in the United States are such that minority status is suffi­ ciently correlated with lack of opportunity so that the "masquer­ ade" element alone can justify the classification as constitutional. Furthermore, Ginsburg may not have considered this part-"close targeting"-of the Webster test essential, and may have wanted to avoid constructing extra hurdles for affirmative action programs in an opinion, and the purpose of this was to promote a more flexible standard of affirmative action review. Ginsburg's race-based standard in Gratz is not entirely less strict than her gender-based standard because she adds the re­ quirement that race-based affirmative action programs should not unduly burden the majority, while she has not addressed a similar concern in the gender context.176 However, as noted above, Gins­ burg addresses this concern in the context of race-based affirma­ tive action, because it was a major concern of the majority justices, and she raises it in order to assert that, unlike the majority, she finds that Michigan's affirmative action program did not unduly burden white students. Therefore, Ginsburg may have added this standard to her test for race-based affirmative action because the majority's concern necessitated her doing so, and she made the best of it. Ginsburg also constrains her support of race-based affirmative action with a qualified endorsement of the majority's preference for a sunset clause. She had previously articulated a conception of both race-based and gender-based affirmative action as a transi­ tional measure to be used during the process of eradicating dis­ crimination and its effects and of achieving full equality.177 However, she loosens this constraint on affirmative action when ex­ pressing her doubts that true equality and the retirement of affirm­ ative-action plans will be achieved in the near future. As a result, the test that Ginsburg applies to race-based affirmative action is

176 Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 275-76 (1995) (Ginsburg,]., dis- senting) (noting that [c]Iose review also is in order [because] ... some members of the his­ torically favored race can be hurt by catchup mechanisms designed to cope with the lingering effects of entrenched racial subjugation. Court review can ensure that preferences are not so large as to trammel un­ duly upon the opportunities of others or interfere too harshly with legit­ imate expectations of persons in once-preferred groups.). 177 See Gender, supra note 34, at 34; Some Thoughts, supra note 23, at 825. In both articles, Ginsburg refers to the use of affirmative action during a "transition period." 2004] ORUTTER AND GRATZ AND BEYOND 389 novel in that it is grounded in the standard she endorses for gen­ der-based classifications, even though she adopts it to the concerns and exigencies of Gratz.

V. CONCLUSION Ginsburg adds an important articulation of a less formalistic view of equal .protection to the affirmative action debate. Affirma­ tive action is a complicated issue that rarely lends itself to absolute, definitive answers. However, the equal protection framework within which affirmative action cases are currently decided has be­ come so mired in formalistic technicalities that courts cannot help but lose sight of the issues of racial injustice and discrimination that are at the heart of the need for affirmative action. The result is a judicial approach to affirmative action that seems hopelessly out of touch with the real issues surrounding the subject and is there­ fore unlikely to reach a satisfying solution to the problem. Against this backdrop, Ginsburg's willingness to ground her analysis of af­ firmative-action plans in a discussion of historic inequality and in­ justice and to dispense with some of the formalism of the majority adds a levelheaded, clearly articulated, anti-formalism position to the affirmativ~-action debate. RUTH BADER GINSBURG: AN ANNOTATED BIBLIOGRAPHY

Sarah E. Valentine*

TABLE OF CONTENTS

I. INTRODUCTION...... 392 II. WoRKS BY RuTH BADER GINSBURG...... 397 A. Foreign or Comparative Legal Issues ...... 397 1. Books ...... 398 2. Articles and Book Chapters ...... 398 B. United States Federal Procedure ...... 402 C. Works on Sex Discrimination and Ginsburg's Litigation to Achieve Recognition of Gender I . Equality ...... 403 1. Books ...... 404 2. Articles ...... 405 D. Judicial Philosophy and the Judiciary...... 415 E. The Legal Profession ...... 420 1. Appellate Advocacy...... 420 2. Legal Ethics ...... 421 3. ' Legal Education ...... 422 4. Women "At" (and Behind) the Bench and I Bar ...... 423 5. Jewish Justices and Jewish Identity...... 428 F. Tr\butes, Remarks and Miscellany...... 429 III. BooKS; BooK CHAPTERS AND LAw REvrnw ARTICLES ON OR ABOUT RUTH BADER GINSBURG ...... 435 A. Bo,oks and Book Chapters on or About Ginsburg 435 1. Books Written for the Child or Young Adult Audience ...... 435 2. Books or Book Chapters on Ginsburg for the Academic or Scholar ...... 436 B. La}V Review Articles on or About Ginsburg...... 439

* Reference 1nd Collection Management Librarian and Professor of Legal Re­ search, New York Law School. The author wishes to express her appreciation to Ruthann Robson, Professor of Law, CUNY School of Law, for her encouragement and assistance, and to Camille Broussard, Acting Director of the Mendik Law Library, New York Law School, for her support and mentorship. Additionally, the author acknowl­ edges Katerina Williams, CUNY School of Law Library, for her assistance with inter­ library loans, and Julie Graves, CUNY School of Law, Class of 2004 and Symposium Editor, for her preliminary contributions and editing, as well as to the editors and staff of the New York City Law Review.

391 392 NEW YORK CITY LAW REVIEW [Vol. 7:391

I. INTRODUCTION Ruth Bader Ginsburg changed the face of American jurispru­ dence. She is best known as the architect of the litigation strategy that made gender constitutionally relevant1 and, in the process, changed the way women are viewed in American society.2 Cur­ rently an associate justice of the U.S. Supreme Court, she has been called the Thurgood Marshall of the women's rights movement.3 Ginsburg is the only sitting member of the Supreme Court who has actually argued before it: she argued six separate times in the 1970s when she was litigating gender equality cases.4 She has been a judge since 1980 when she was appointed to the D.C. Circuit by President Jimmy Carter.5 In 1993 she was appointed to the Su­ preme Court by President Clinton with relatively little controversy.6 As a justice, she has "extended her commitment to opportunity and equality far beyond gender discrimination."7 Commentators find her an extremely intelligent, precise, pragmatic, hardworking

1 Amy Leigh Campbell, Raising the Bar: Ruth Bader Ginsburg and the ACLU Women's Rights Project, 11 TEx.J. WOMEN & L. 157, 239 (2002). 2 As Kathleen M. Sullivan remarks, "American women's equality is a story of crea­ tive interpretation of the Equal Protection Clause and of advocates' bravado. Led with inventiveness and strategic brilliance by now:Justice Ruth Bader Ginsburg.... "Kath­ leen M. Sullivan, Constitutionalizing Women's Equality, 90 CAL. L. REv. 735, 739 (2002). 3 As Professor Kushner eloquently put it, [t]oday, when a woman graduates from this school or any school in the country, she has an equal chance at employment as her male classmates. The important thing to understand is that if we were going to ask, "is there an individual that is responsible for this change?" Without ques­ tion it is Ruth Bader Ginsburg. James A. Kushner Introducing Ruth Bader Ginsburg and Predicting the Performance of a Ginsburg Court, 32 Sw. U. L. REv. 181, 181-82 (2003). 4 Id. at 183. Additionally, Ginsburg participated in the writing of nine briefs to the U.S. Supreme Court, fifteen amicus curiae briefs, and eleven petitions for certiorari. Id. 5 See, e.g., Edith Lampson Roberts, Ruth Bader Ginsburg, in THE SUPREME COURT JusncEs: ILLUSTRATED BIOGRAPHIES, 1789-1995 531, 534-35 (Clare Cushman ed., 1995). 6 Like the confirmation hearings of other recent Supreme Court nomi­ nees, Ginsburg's were nationally televised, but in stark contrast to what the viewing public had witnessed when the Judiciary Committee had delved into the views and character of Clarence Thomas in 1991, there was scarcely any rancor or blatant partisanship in the committee's inter­ rogation of Ginsburg.... Ginsburg was treated far more gently than most of other recent nominees to the Court." DIANA KLEBANOW & FRANKLIN L.JoNAS, Ruth Bader Ginsburg, in PEOPLE'S LAWYERS: CRU­ SADERS FORJusTICE JN AMERICAN HISTORY 349, 381 (2003). See also William G. Ross, The Supreme Court Appointment Process: A Search for a Synthesis, 57 ALB. L. REv. 993 ( 1994). 7 Deborah Jones Merritt & David M. Lieberman, Ruth Bader Ginsburg's jurispru­ rknce of Opportunity and Equality, 104 COLUM. L. REv. 39, 45 (2004). 2004] RUTH BADER GINSBURG 393

consensus builder on the Court. 8 She has been an assertive and productive justice since her appointment,9 and she has had re­ markable success in guiding the Court to the center left on a num­ ber of issues. 10 Throughout her career, Ginsburg has been a prolific writer. After graduating law school in 1959 and then clerking with a United Statesldistrictjudge, Ginsburg published works on foreign law, usually describing Swedish law or comparing Swedish and United States civil procedure.11 Both of these topics were in keep­ ing with her jobs during this time. Between 1961 and 1963, Gins­ burg worked at the Columbia Project on international civil procedure. She began teaching at Rutgers School of Law in the fall of 1963 and taught civil procedure, remedies, and a comparative

8 David L. Shapiro, justice Ginsburg's First Decade: Some Thoughts about Her Contribu­ tions in the Fields of Procedure and Jurisdiction, 104 CoLUM. L. REv. 21, 21-22 (2004) (stating that her opinions are characterized by qualities that evince judging at its best: a high level of knowledge of the subject matter, lawyerly analysis of the issues at hand, a pragmatic approach that places great weight on the particular context and on what works best in that context in the interests of both judicial efficiency and fairness to litigants, and an insistence that decisions not be unnecessarily broad in their scope or implications.); Eqith Lampson Roberts, Tribute to justice Ruth Bader Ginsburg, 20 U. HAw. L. REv. 595r 595 (1998) (stating that: [t]he hallmarks of her style of judging-meticulous attention to detail, abiding rdpect for the views of her judicial colleagues, and absolute clarity of expression in the opinions she authors-necessarily affect her view both of the appropriate outcome of each case and of the way in which a judge is obliged to explain that outcome.). 9 Despite the goal and norm of parity in assignments, new justices some­ times receive fewer opinion assignments than other justices as they be­ come integrated into the Court's decision-making environment. This was true of Justices Souter, Scalia, and O'Connor. ... [H]owever, this was not true of Ginsburg, whose nine majority opinions matched the Court's average and exceeded by one the number assigned to four of her colleagues. Presumably, Ginsburg's 13 years as a judge on the U.S. Court of Appeals for the District of Columbia Circuit enabled her to impress her colleagues with her competence in appellate opinion writ­ ing.... Thus, her workload was the same as that of other justices, and she was not treated by her senior colleagues as if she needed to learn the Court's decision-making processes. Ginsburg proved to be assertive in writing concurring and dissenting opinions. She exceeded the Court's average for productivity in both categories. With respect to con­ curring opinions, she was tied for third among all justices in the fre­ quency of explaining her views when she agreed with the outcome of a case but dld not write the majority opinion. Christopher E. Smith et al., The First-Term Perfonnance ofJustice Ruth Bader Ginsburg, 78 JUDICATURE 74, 7? (1994) (citations omitted). 10 See Kushner', supra note 3, at 184-85 (using Ginsburg's decisions as examples). 11 Campbell, supra note 1, at 161-62. 394 NEW YORK CITY LAW REVIEW [Vol. 7:391 law seminar that focused on Swedish law. 12 Ginsburg has only inter­ mittently written or spoken on comparative law since 1970, al­ though she has published some recent pieces discussing the impact of international law on the Court. 13 In 1970, Ginsburg began focusing, both as a writer and as a litigator, on sex discrimination in the United States. While teach­ ing, she worked as the co-director of the Women's Rights Project and later as general counsel to the ACLU. During this time, she not only litigated but also used her pen to educate. She often wrote short pieces in then-new women's law reviews and journals, 14 as well as in bar journals15 and traditional law reviews discussing sex discrimination and the cases she was or had been litigating.16 An­ other prominent topic during this period was the importance of securing the passage of the Equal Rights Amendment. She often argued that passage of the ERA was necessary so that the judiciary would have a constitutionally explicit foundation upon which it could base its gender equality doctrine. 17 Her methodical and step-by-step litigation strategy18 in the 1970s reappears in her judging19 and in her judicial philosophy20

12 Herma Hill Kay, Ruth Bader Ginsburg, Professor of Law, 104 COLUM. L. REv. l, 11 (2004). 13 Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An Interna­ tional Human Rights Dialogue, 21 CARDOZO L. REv. 253 (1999). 14 See, e.g., Ruth Bader Ginsburg, Comment, Frontiero v. Richardson, 1 WOMEN'S RTs. L. REP. 2 (1971-1974); Ruth Bader Ginsburg, The Equal Rights Amendment is the Way, 1 HARV. WOMEN'S LJ. 19 (1978) [hereinafler Equal Rights Amendment]. 15 See, e.g., Ruth Bader Ginsburg, The Need for the Equal Rights Amendment, 59 A.BA. J. 1013 (1973). 16 See, e.g., Ruth Bader Ginsburg, Gender in the Supreme Court: The 1973 and 1974 Terms, 1975 SuP. CT. REv. l; Ruth Bader Ginsburg, Gender and the Constitution, 44 U. CJN. L. REv. l (1975). 17 See, e.g., Ruth Bader Ginsburg, Let's Have E.R.A. as a Signal, 63 A.B.A. J. 70 (1977); Equal Rights Amendment, supra note 14; Ruth Bader Ginsburg & Philip B. Kur­ land, Is the ERA Constitutionally Necessary?, UPDATE ON LAw-RELATED Eouc. 16 (Spring 1978); Ruth Bader Ginsburg, Ratification of the Equal Rights Amendment: A Matter of Time, 57 TEX. L. REv. 919 (1979). 18 See Joan R. Tarpley, An Open Thank-You Note to justice Ruth Bader Ginsburg for Ha Spirit of Belonging, 24 WOMEN'S RTs. L. REP. 1, 1 (2002) (thanking Ginsburg for both her "vision of gender equality" and "the practical step-by-step methodology em­ ployed" to "make that vision become today's constitutional reality"). See also Henry J. Reske, The Trailblazing Womens Rights Litigator Becomes a Moderate judge, 79 A.B.A.J. 16, 19 (Aug. 1993) ("Ginsburg developed a strategy of chipping away precedent, estab­ lishing new principles step-by-step."). 19 "Ginsburg had always adhered to liberal values and goals, but had tempered these beliefs as a judge on the court of appeals by her emphasis on procedure and precedent and by her commitment to the doctrine ofjudicial restraint." KLEBANOW & JONAS, supra note 6, at 379. 20 See generally Rllth Bader Ginsburg, Speaking in a judicial Voice, 67 N.Y.U. L. REv. 2004] RUTH BADER GINSBURG 395 when she was appointed to the D.C. Circuit in 1980. It is interest­ ing to note that in 1985 she reiterated her belief in the importance of a methodological and moderate approach to securing civil rights, warning against seeking bold judicial victories alone.21 She is, by many accounts, a careful, moderate judge22 who believes in narrow rulings and the importance of stare decisis.23 Linda Green­ house, the N~w York Times Supreme Court reporter, has called her a 'judicial-restraint liberal," with a "liberal vision of a muscular and broadly inclusive Constitution coupled with a pragmatist's sense that the most efficacious way of achieving the Constitution's highest potential as an engine of social progress is not necessarily through the exercise ofjudicial supremacy."24 Ginsburg's own arti­ cles on the jupiciary and her judicial philosophy reflect the impor­ tance of these attributes.25 Since het appointment to the Court in 1993, she has lectured and written on many different aspects of the legal profession and has shown ari interest in legal history as well.26 She also has ad­ dressed the importance of protecting the independence of the ju­ diciary from politicalization and from criticism that seeks to

1185 (1992). In a section of the article entitled "Measured Motions in the Third Branch of Decisionmaking," Ginsburg argues that "measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable." Id. at 1198. 21 Ruth Bader Ginsburg, Remarks at the Saturday Roundtable Discussion at the Conference on Civil Rights Developments (Nov. 17, 1984), in 37 RUTGERS L. REv. 1107 (1985). 22 Laura Krugman Ray, Justice Ginsburg and the Middle Way, 68 BROOK. L. REv. 629, 629 (2003). 23 See Mei-Fei Kuo & Kai Wang, Comment, When ls an Innovation in Order?: justice Bad.er Ruth Ginsburg and Stare Decisis, 20 U. HAW. L. REv. 835, 859 (1998) (stating that, "Justice Ginsburg's early years as a judge were marked by her great judicial restraint in preserving precedent. She paid utmost respect to a settled body of law. When faced by a precedent conflicting with her moral beliefs, she still followed the precedent and abided by one of, the primary tenants of stare decisis-'to keep judges from infusing their own moral J;>eliefs.'" (citation omitted). See also CASS R. SuNSTEIN, ONE CASE AT A TIME: JUDICIAL MINIMALISM ON THE SUPREME COURT ( 1999) (arguing that the analyti­ cal heart of the )=urrent Court-comprised of Justices Breyer, Ginsburg, Kennedy, O'Connor, and Souter-tries to avoid broad rulings, and instead prefers to decide cases narrowly b<1;5ed on the specific facts at hand). 24 Linda Greephouse, Leaming to Listen to Ruth Bader Ginsburg, 7 N.Y. C1TY L. REv. 213 (2004). 25 See Sarah f· Valentine, Ruth Bader Ginsburg: An Annotated Bibliography, 7 N.Y. CnY L. REv. 391 (2004). 26 See Ruth B~der Ginsburg, Remarks at the City University School of Law (Mar. 11, 2004), in 7 N.Y. City L. Rev. [ ] (2004) [hereinafter Remarks]; Ruth Bader Gins­ burg, Welcoming Remarks to the Judicial Fellows Qan. 22, 1998), in 5 Sw. J. L. & TRADE AM. 3 (1998); Ruth Bader Ginsburg, Reflections on Way Paving]ewishjustices and Jewish Women, 14 ~OURO L. REV. 283 (1998). 396 NEW YORK CITY LAW REVIEW [Vol. 7:391 intimidate judges who do not rule the way " 'the home crowd' wants."27 In addition to her own writing, Ginsburg's work has been the subject of many other authors, most notably legal academics and law students. Scholars have analyzed her opinions in specific cases, such as VMI, 28 or in particular areas, such as capital punishment,29 or in combinations of areas.30 Additionally, Ginsburg has been the topic of various types of tributes and biographies, including chil­ dren's books. This bibliography collects and annotates works by and about Ginsburg. As the first annotated bibliography of Ginsburg, it is in­ tended to assist researchers seeking specific information that titles alone often do not convey. Further, the categorization in this bibli­ ography should facilitate access to the particular subjects about which a researcher is concerned. After this brief introduction, Part II provides a comprehensive listing of works by Ginsburg. Its divisions generally correspond to the chronological trajectory of her legal career. Subsection A in­ cludes her works on foreign or comparative law, much of which was done prior to 1971, while subsection B collects her publica­ tions on U.S. civil procedure. Subsection C encompasses her works on sex discrimination, the topic on which she has been most pro­ lific. The pieces collected in subsection D were authored after her ascent to the bench and address her judicial philosophy as well as her concerns about the growing threat to judicial independence. In addition to her writings on the judiciary, Ginsburg has written widely on the legal profession. In subsection E, this bibliography assembles and categorizes her writings devoted to appellate advo­ cacy, legal ethics, legal education, women and the bench and bar, and Jewish justices. Finally, subsection F of Part II collects those

27 See Ruth Bader Ginsburg, Remarks on Judicial Independence, Remarks at the Hawai'i State Bar Reception (Feb. 3, 1998), in 20 U. HAw. L. REv. 603, 603 (1998); Ruth Bader Ginsburg, Inviting Judicial Activism: A 'Liberal' or 'Conservative' Technique?, John A. Sibley Lecture in Law delivered at the University of Georgia School of Law (Jan. 26, 1981), in 15 GA. L. REv. 539 (1981). 28 United States v. Virginia, 518 U.S. 515 (1996). See, e.g., Carey Olney, Better Bitch than Mouse: Ruth Bader Ginsburg, Feminism, and VMI, 9 BuFF. WoMEN's LJ. 97, 115 (2000-2001). 29 See, e.g., Sidney Harring & Jeffrey L. Kirchmeier, Scrupulous in Applying the Law: .Justice Ruth Bader Ginsburg and Capital Punishment, 7 N.Y. CnY L. REv. 241 (2004). 30 See, e.g., Rebecca Barnhart & Deborah Zalesne, Twin Pillars of.Judicial Philosophy: The Impact of the Ginsburg Collegiality Philosophy on Her Separate Opinions in Gender Dis­ crimination Cases, 7 N.Y. CrTY L. REv. 275 (2004); M. Isabel Medina, Real Difference and Stereotypes-Two Visions of Gender, Citizenship, and International Law, 7 N.Y. C!1Y L. REv. 315 (2004). 2004] RUTH BADER GINSBURG 397 short pieces by Ginsburg that are tributes, general remarks, and other miscellaneous writings that she has given since she was ap­ pointed to the federal bench. Part III of this bibliography is devoted to publications about Ginsburg and her work. Subsection A lists all the books and book chapters tha( relate to Ginsburg. This subsection is then divided into two sect;ions, one of which catalogues children's or young adult works, while the other includes books or book chapters on Ginsburg written for an adult audience. It is hoped that this divi­ sion will be especially useful to scholars who wish to limit their re­ search to more sophisticated texts, as works aimed at a non-adult audience are cited in scholarly adult works, causing some confu­ sion. Subsection B then lists law review articles about Ginsburg's jurisprudence and contributions. This subsection is limited to pieces that focus on Ginsburg, excluding articles in which Gins­ burg, as auth9r of a particular opinion, is incidental to the author's analysis. Part III excludes works from the popular press because this bibliography is aimed primarily at legal and other scholarly researchers. Taken as a whole, this annotated bibliography provides a por­ trait of a prolific litigator, scholar, and jurist, as well as the tremen­ dous "changes around here"31 philosophy that her work reflects and animates.

II. WoRKS BY RuTH BADER GINSBURG A. Foreign or Comparative Legal Issues After clerking for Judge Palmierie in the Southern District of New York, Ruth Bader Ginsburg worked at the Columbia Prqject on International Civil Procedure, becoming Associate Director of the project within a year.32 She learned the Swedish language, co­ edited several books on Swedish Civil Procedure, was awarded an honorary doctorate by the University of Lund,33 and was consid­ ered a leading scholar on Swedish law. 34 She served on the edito­ rial board of the American Journal of Comparative Law and is regarded as a respected comparativist. 35

31 See Greenhouse, supra note 24, at 219. 32 Campbell, supra note l, at 242. 33 Malvina Halberstam, Ruth Bader Ginsburg: The First Jewish Woman on the United States Supreme Covrt. 19 CARnozo L. REv. 1441, 1146 (1998). 34 James A.R. Nafziger, International and Foreign Law Right Here in River Cit_v, 34 WILLAMETTE L. REV. 4, 26 (1998). 35 Ruth B. Cowan, Woman's Rights Through Litigation: An Examination of the American 398 NEW YORK CITY LAW REVIEW [Vol. 7:391

1. Books

RuTH BADER GINSBURG & ANDERS BRuzEuus, CrvrL PROCEDURE IN SWEDEN (Hans Smit ed., 1965). The first volume in the Project on International Procedure of the Columbia University School of Law, this handbook on Swedish civil procedure, co-authored with Swedish Judge Anders Bruzelius, includes an introduction to Swed­ ish legal history and governmental organization, legal education, the organization of the judicial system, and discusses the more practical aspects of civil procedure, including jurisdiction, service of process, evidentiary issues, appellate practice, and enforcement of judgments. ANDERS BRUZELIUS & RUTH BADER GINSBURG, THE SWEDISH CODE OF JUDICIAL PROCEDURE (Ginsburg trans. & ed. 1968). This book is a translation of the rules governing both civil and criminal procedure and the organization of the Swedish courts as promul­ gated in 1942, effective date 1948, and includes a brief introduc­ tion to Swedish procedure. Bus1NESS REGULATION IN THE COMMON MARKET NATIONS, VoL. 1 (Ruth B. Ginsburg ed., 1969). Ginsburg served as the volume edi­ tor for this first volume in a series of books on "restraints of trade and monopoly" in the European Economic Community. This vol­ ume includes sections on the nations of Belgium, the Netherlands, and Luxembourg by separate authors. RUTH BADER GINSBURG, A SELECTIVE SURVEY OF ENGLISH LAN­ GUAGE STUDIES ON SCANDINAVIAN LAw (1970). This book is a selec­ tive and partially annotated bibliography of approximately fifty pages of sources on Swedish, Danish, Norwegian, and Finnish law.

2. Articles and Book Chapters

Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Ac­ tion: An International Human Rights Dialogue, 21 CARDOZO L. REv. 253 (1999); reprinted in 1 RUTGERS RAcE & LAw 193 (1999). Gins­ burg and her co-author describe the different ways that the courts of the United States, India, and the European Union have handled legislative attempts to redress historic discrimination. The authors conclude that legislative redress of bias often generates opposition and urge those in the U.S. judicial system to look beyond U.S. shores, as both India and the European Union have done, to gain

Civil Liberties Union Womens Rights Project 1971-1976, 8 CoLuM. HuM. RTs. L REv. 373, 384 (1976). 2004] RUTH BADER GINSBURG 399 knowledge and perspective about attempts to eradicate bias and discrimination. Ruth Bader Ginsburg, An Overview of Court Review for Constitu­ tionality in the United States, 57 LA. L. REv. 1019 (1997). In this piece, which was the twenty-fifth john M. Tucker Jr. Lecture in Civil Law at the Louisiana State University Law School, Ginsburg lays out the framework for judicial review of constitutional questions. She com­ pares and contrasts the manner in which U.S. courts control legis­ lative and executive action with those of other Western nations. Ruth Bader Ginsburg, Civil Procedure-Basic Features of the Swed­ ish System, 14 AM. J. Co MP. L. 336 ( 1965). The first part of this arti­ cle sketches the Swedish bench and bar circa 1965, with a general description of how law was practiced there, including the use of lay attorneys, laY, judges (the niimnd), and the use of the civil ombudsma'fj, which oversees all of Sweden's nonmilitary officialdom. The remaindbr of the article provides a brief overview of Sweden's Code of Procedure, which was streamlined in 1942. Ginsburg pro­ vides a short ~escription of each of the major categories of proce­ dure: prepara,tion for hearings, rules of competence Gurisdiction), service, and nleadings. Ruth B. {);insburg, Sweden, Comparative Study of Hearsay Evidence Abroad, 4 lNT'.L LAw. 163 (1969-1970). This short essay is one of a series create~. by International Lawyer in the late 1960s and early 1970s on specific topics of foreign law. Several authors covered one or more coun'tries, addressing the countries' various approaches to the legal process. Ginsburg outlines salient features of the receipt and evaluation of evidence under Swedish law. Ruth B. Ginsburg, The Competent Court in Private International Law: Some Observations on Current Views in the United States, 20 RUTGERS L. REv. 89 (1965). Focusing on cases involving parties re­ siding outside the forum state, Ginsburg compares and contrasts traditional American common law concepts of jurisdiction with those of Western European countries. Ginsburg argues that the United States has moved away from personal service as the basis of a court's adjupicatory authority and moved toward the more conti­ nental view of basing such authority on the state's relationship to the defendant or to the particular litigation involved. Ruth Bader Ginsburg, The Constitutional Status of Human Rights Here and Abroad, Remarks Before the Women's Bar Associ­ ation of the District of Columbia Qune 22, 1982), in 3 ANTIOCH LJ. 5 (1985). In this speech, then:Judge Ginsburg laments the failure to ratify the E.R.A. and predicts that protection against govern- 400 NEW YORK CITY LAW REVIEW [Vol. 7:391 ment abridgement of rights because of sex will be a secure consti­ tutional principle by 2000. She goes on to broadly describe systems of constitutional review in several countries, including France, It­ aly, Japan, the People's Republic of China, and West Germany. Ruth Bader Ginsburg &Jonathan Weinberg, Fundamental Dif­ ferences in the Acquisition and Enforcement of Patents, Copy­ rights, and Trademarks in the United States, Address Before the [Tokyo] Institute of Intellectual Property by Ruth Bader Ginsburg (Aug. 3, 1994). This is a speech, translated and bound by the Insti­ tute, in which the authors provide an overview of patent, copyright, and trademark protections in the United States for ajapanese au­ dience. The authors use examples from both American and Japa­ nese film, as well as U.S. case law to illustrate their points. They also suggest that the issue of digital technology will be the new frontier in intellectual property law. Ruth Bader Ginsburg et al., International Co-operation in Liti­ gation: Denmark; International Co-operation in Litigation: Fin­ land; International Co-operation in Litigation: Norway; International Co-operation in Litigation: Sweden; in INTERNA­ TIONAL Co-OPERATION IN LITIGATION: EUROPE, at 52, 105, 281, 333 (Hans Smit ed., 1965). This book was published by the Columbia Project on International Procedure where Ginsburg worked after her clerkship and prior to being hired at Rutgers. Ginsburg, who is co-author of each of the above chapters with local (to the country covered) practitioners, drafted the chapters based on results from extensive questionnaires, which the local practitioners answered. Ruth Ginsburg, The jury and the Namnd: Some Observations on judicial Control of Lay Triers in Civil Proceedings in the United States and Sweden, 48 CORNELL L.Q. 253 (1962). In this comparative law study, Ginsburg contrasts the U.S. jury system with that of the Swedish Namnd, in which a panel of lay triers of fact and law is guided in its determinations by a professional judge. Ruth Bader Ginsburg, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, Sherman]. Bellwood Lecture at the University of Idaho (Sept. 18, 2003), in 40 IDAHO L. REV. 1 (2003). In this lecture, Ginsburg de­ scribes the slow but perceptible movement the Supreme Court has made toward examining and learning from jurisprudence of other countries. She points to the increased number of references to in­ ternational conventions in Court opinions, as well as to two recent cases where the Supreme Court specifically referenced non-U.S. 2004] RUTH BADER GINSBURG 401 opinion and ~urisprudence: Atkins v. Virgi,nia, 36 and Lawrence v. Texas. 37 Ruth Ginsburg & Anders Bruzelius, Professional Legal Assistance in Sweden, 11 lNT'L & CoMP. L.Q. 997 (1962). This is an in-depth overview of the practice of law in Sweden. The authors present in­ formation covering many aspects of the legal system, including ad­ mission requirements at law schools, relationships between lawyers and clients, and relationships between public defenders and prose­ cution authotities. Ruth Bader Ginsburg, Proof ofForeign Law in Sweden, 14 lNT'L & COMP. L.Q. 277 (1965). This short note provides an overview of literature and case law on the subject of how Swedish courts deter­ mine the applicability of foreign law. Ruth Bader Ginsburg, Recognition and Enforcement of Foreign Civil Judgments: A Summary View of the Situation in the United States, 4 INT'L LAw. 720 (1969). This article provides an overview of the sub­ ject of enforcing foreign civil judgments. The article details under­ lying policies, conditions, and trends in case law and examines potential developments governed by treaties. Extensively foot­ noted, the article contains many citations to cases and secondary sources. The ~rticle also was published (with only minor changes) as Recognition and Execution of Foreign Civil judgments and Arbitration Awards, in LEGAL THOUGHT IN THE UNITED STATES OF AMERICA UNDER CONTEMPORARY PRESSURES 237-59 Qohn N. Hazard & Wen­ ceslas J. Wagner eds., 1970). I Benjamii). Busch, The Right of United States Lawyers to Practice Abroad: In Srlleden, Report by Ruth B. Ginsburg, 3 lNT'L LAw. 903 (1969). This short essay is one in a series compiled by International Lawyer in the late 1960s and early 1970s on specific topics in for­ eign law. Sev~ral authors covered one or more countries, address­ ing the countries' various approaches to the legal process. Ginsburg outlines salient features of the receipt and evaluation of evidence undFr Swedish law. In her report, Ginsburg addresses the

36 536 U.S. 304 (2002) (holding that execution of mentally retarded criminals is an excessive punishment). The majority noted that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved." Id. at 316 n.21. 37 539 U.S. 558 (2003) (declaring unconstitutional a Texas statute criminalizing consensual, same-sex intimate conduct). The majority opinion cited specifically to Eu­ ropean Court of Human Rights as well as acknowledged that "[t]he right the petition­ ers seek in this case has been accepted as an integral part of human freedom in many other countries." Id. at 576-77. 402 NEW YORK CITY LAW REVIEW [Vol. 7:391 ability of a U.S. attorney to practice in Sweden and, in doing so, gives a broad outline of the Swedish legal system. Ruth B. Ginsburg, Nordic Countries, Seroice of Process Abroad, 4 INT'L LAw. 150 (1969-1970). This is another in the series described immediately above. In this essay, Ginsburg explains that service of process in Denmark, Finland, Norway, and Sweden does not affect the jurisdiction of the court, but merely serves to provide notice. The article also outlines procedure for service both inside and outside the countries, as well as service of foreign documents. Ruth Bader Ginsburg, The Status of Women, 20 AM. J. COMP. L. 585 (1972). In this introduction to the Status of Women Sympo­ sium, Ginsburg describes the symposium as a survey of the status of women in various countries. She suggests that the problems other countries have had in implementing statutes intended to create equality between men and women may be instructive to those in the United States who seek to achieve gender equality. Benjamin Busch & Ruth Bader Ginsburg, Summary Adjudica­ tion: Sweden, 4 lNT'L LAw. 882 (1969-1970). This piece is part of the series of short essays Ginsburg wrote for International Lawyer where she was one of many writers to describe how an individual Euro­ pean country handled some aspect of the law. Here Ginsburg dis­ cusses Swedish proceedings that are expedited or shortened in some form to speed adjudication. Ruth B. Ginsburg, Survey of Products Liability Law: Sweden, 2 INT'L LAw. 153 (1967). This piece is another essay in the Interna­ tional Lawyer series on aspects of the law in a European country. In this essay, Ginsburg examines products liability as applied to motor vehicles under Swedish law. Noting that there is an absence of leg­ islation on this matter, she provides three principal classes of cases where the issue of liability for a defective vehicle might arise.

B. United States Federal Civil Procedure Ginsburg taught civil procedure for seventeen years38 and wrote many articles on aspects of Swedish civil procedure. She also wrote two major pieces on United States civil procedure while at Rutgers Law School, one of which is considered her tenure piece.39 However, after these articles were published, she never again wrote a major article that focused on civil procedure, and, in what Herma

38 Elijah Yip & Eric K. Yamamoto, justice Ruth Bader Ginsburg's jurisprudence of Pro­ cess and Procedure, 20 U. HAW. L. REV. 647, 663 n.159 (1998). 39 Herma Hill Kay, Ruth Bader Ginsburg, Professor of Law, 104 COLUM. L. REv. I, 11- 12 (2004). 2004] RUTH BADER GINSBURG 403

Hill Kay called a "stunning reversal of field,"40 she turned her at­ tention to other topics, notably gender equality. This is not to im­ ply that Ginsburg's interest or knowledge of civil procedure has faded: Justice Ginsburg rebuked at least one scholar who implied that her ascent to the Court as Justice White's replacement would mean a deterioration of the Court's procedural expertise.41 Ruth B. Ginsburg, Judgments in Search of Full Faith and Credit: The Last-in-Time Rule for Conflicting judgments, 82 HARV. L. REv. 798 (1969). After tracing Supreme Court precedent in conflict ofjudg­ ment cases, Ginsburg argues in this article that because some state courts have skirted the last-in-time rule supported by the Court, the Court must provide an explicit federal solution that would provide consistency in this area of the law. Ruth Bader Ginsburg, Special Findings and Jury Unanimity in the Federal Courts,· 65 CoLUM. L. REv. 256 (1965). In this piece, Gins­ burg focuses on Rule 49 of the Federal Rules of Civil Procedure, specifically jury unanimity in cases in which a jury returns either a special verdict or a general verdict accompanied by answers to in­ terrogatories. The problem she addresses is what constitutes a unanimous verdict in situations where separate fact theories have been proffered in support of an ultimate issue. Ginsburg outlines the nature o~ the problem and the government's responses to it, using several ~llustrative cases. She then proposes that the federal courts chaos~ to define jury unanimity as striking a balance be­ tween extremes from both sides.

C. Works on fS'ex Discrimination and Ginsburg's Litigation to Achieve Recognitio~ of Gender Equality Ginsbur~ is considered a highly respected litigator42 who de­ veloped and 'mplemented much of the legal strategy for the Wo­ men's Rights ti>roject in the early and mid-1970s.43 Examining her writings and those of others from this period, it is easy to recognize

40 Id. at 12. 41 See Steven Alan Childress, Constitutional Fact and Process: A First Amendment Model of Censorial Discret~on, 70 TuL. L. REv. 1229, 1319 n.420 (1996) (citing letter in which Justice Ginsburg, in response to his speculation that the Court would be Jess con­ cerned about prqcedural issues now that she had replaced Justice White, reminded him that she had taught civil procedure for seventeen years). 42 See Kathleen M. Sullivan, Constitutionalizing Womens Equality, 90 CAL. L. REv. 735, 739 (2002). See also Gerald Gunther, Ruth Bader Ginsburg: A Personal, Very Fond Tribute, 20 U. HAw. L. REv. 583, 584 (1998); David Cole, Strategies of Difference: Litigating for Womens Rights in a Mans World, 2 Lnv & INEQ. 33, 54 ( 1984); Campbell, supra note 1, at 162. 43 Campbell, supra note 1, at 162. )

404 NEW YORK CITY LAW REVIEW [Vol. 7:391 the calm, methodical moderate who helped educate a Court which, until the early 1970s, failed to even recognize the existence of unconstitutional sex discrimination. In a few years, she and the ACLU Women's Rights Project were able to move the Court a con­ siderable distance in the area of sex-based discrimination, only nar­ rowly missing the fifth vote for requiring that sex-based legislation meet the strict scrutiny standard.44 Much of her writing during the 1970s and early 1980s focuses on the major gender discrimination cases of this period:45 Reed, 46 Frontiero, 47 Kahn, 48 Weisenfeld, 49 Craig, 50 Goldfarb, 51 Webster, 52 and Vorchheimer. 53

1. Books KENNETH M. DAVIDSON, RUTH B. GINSBURG & HERMAN H. KAY, TEXT, CASES AND MATERIALS ON SEX-BASED DISCRIMINATION (1974). In this casebook intended for use in law school classrooms, Gins-

44 See, e.g., Ruth Bader Ginsburg & Wendy Webster Williams, Court Architect of Gen­ der Equality: Setting a Firm Foundation for the Equal Stature of Men and Women in REAsoN AND PASSION (E.Joshua Rosenkranz & Bernard Schwartz eds., 1997); Ruth Bader Gins­ burg, Constitutional Adjudication as a Means of Realizing the Equal Stature of Men and Women Under the Law, 14 TOCQUEVILLE REv. 125 (1993); see almToniJ. Ellington et al., Comment, justice Ruth Bader Ginsburg and Gender Discrimination, 20 U. HAW. L. REv. 699 (1998); Ruth B. Cowan, Woman's Rights Through Litigation: An Examination of the American Civil Liberties Union Women's Rights Project 1971-1976, 8 CoLUM. HuM. RTS. L REv. 373 (1976). 45 These cases are introduced and cited in this introduction to avoid repetition in the annotations that follow. 46 Reed v. Reed, 404 U.S. 71 (1971) (invalidating Idaho law that required that males be selected over females when a court is choosing among persons equally qualified to administer an estate). 47 Frontiero v. Richardson, 411 U.S. 677 (1973) (declaring unconstitutional a federal law permitting differential treatment of military personnel's entitlement to benefits solely on the basis of sex). 48 Kahn v. Shevin, 416 U.S. 351 (1974) (upholding Florida statute providing widows but not widowers with a small reduction in property taxes). This was the only case Ginsburg argued before the Supreme Court that she lost. 49 Weinberger v. Wiesenfeld, 420 U.S. 636 (1975) (holding unconstitutional Social Security laws that provided benefits to widows but not widowers). 50 Craig v. Boren, 429 U.S. 190 (1976) (declaring unconstitutional an Oklahoma Statute that required that males be age twenty-one to purchase beer but females only age eighteen, and determining that "intermediate scrutiny" should apply to sex classifications). 51 Califano v. Goldfarb, 430 U.S. 199 (1977) (declaring unconstitutional a Social Security law that limited a widower's right to receive benefits from taxes paid by a working spouse, but did not similarly limit a widow's right to receive such benefits). 52 Califano v. Webster, 430 U.S. 313 (1977) (upholding certain sex-based classifica­ tions in a Social Security scheme). 53 Vorchheimer v. School District of Philadelphia, 430 U.S. 703 (1977) (a four-four deci­ sion affirming a lower court ruling that allowed parallel single-sex high schools in Philadelphia). 2004] RUI'H BADER GINSBURG 405 burg authored three chapters, entitled "Constitutional Aspects," "Educational Opportunity," and "Comparative Side-Glances," which include materials from the United Nations and foreign nations.

2. Artic,es i Ruth Ba~er Ginsburg, All about the E.R.A., CosMOPOLITAN, Nov. 1979, at ;166. Writing for a popular women's magazine, Gins­ burg seeks tq educate her audience by dispelling some of the prominent myths that surrounded the Equal Rights Amendment during the 1970s. It includes the statement "We do not regard men as the 'enemy,' of course. Most of us are very fond of them ... " a somewhat amusing reminder of the sorts of stereotypes supporters of the E.R.A. faced in 1979. Id. at 168-70. Ruth Bader Ginsburg, Bakke Decision, Remarks Presented at Panel Discussion (Sept. 20, 1978), in 65 WOMEN LAw.J. 11 (1979). This is a short piece that analyzes the three opinions that comprise the Bakkd5 4 decision. Ginsburg argues that the decision is very nar­ rowly tailored and will probably have limited impact on gender­ based discrimination cases or even other race-based affirmative ac­ tion programs. Ruth Bader Ginsburg, The Burger Court's Grapplings with Sex Dis­ crimination, in THE BURGER COURT: THE CouNTER REVOLUTION THAT WAsN'T 1 132 (Vincent Blasi ed., 1983). Ginsburg argues that although the Burger Court's opinions "do not form an altogether even pattern''i in the area of gender discrimination, its perform­ ance has been striking from a Court sometimes typecast as con­ servative. Ginsburg begins her survey with Chief Justice Burger's opinion for a unanimous Court in Reed in 1971 and ends her dis­ cussion with a postscript critiquing the 1980 cases of Harris v. Mc­ Rae55 and Michael M. 56 Ruth Bader Ginsburg, Comment on Reed v. Reed, 1 WoMEN's RTs. L. REP. 7 (1971-1974). In this brief piece, Ginsburg compares

54 Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978) (known as the first "re­ verse discrimination" case and involving a white male medical student who challenged the use of a special admissions program at U.C. Davis that relied in part on race in considering admissions). 55 448 U.S. 297 (1980) (holding that states participating in the Medicaid program were not obligated to fund medically necessary abortions under Title XIX of the So­ cial Security Act). 56 Michael M. v. Super. Ct. of Sonoma County, 450 U.S. 464 (1980) (holding that California's statutory rape law, which was gender specific, did not violate the Equal Protection clause' of the Fourteenth Amendment). 406 NEW YORK CITY LAW REVIEW [Vol. 7:391

the limited measure taken by the U.S. Supreme Court in Reed in declaring a sex-based statute unconstitutional even under the low­ est tier of review to the California Supreme Court's decision in Sail'er Inn v. Kirby, 57 which held that sex was a suspect classification. In pointing out how small a step the Court took in Reed, she sug­ gests that reliance on the judiciary for "firm, unequivocal constitu­ tional commitment to equality of rights for men and women is at best a dubious course." Id. at 8. Ruth Bader Ginsburg, Comment: Frontiero v. Richardson, 1 WoMEN's RTs. L. REP. 2 (1971-1974). Ginsburg provides a very brief history of sex discrimination prior to 1971 and then discusses Reed and Frontiero. She draws attention to the unusual 4-1-3-1 split of the Court in Frontiero and the language the differing Justices used in establishing (or failing to establish) a coherent standard for review­ ing sex-discrimination cases. Ruth Bader Ginsburg, Constitutional Adjudication as a Means of Realizing the Equal Stature of Men and Women Under the Law, 14 Toe­ QUEVrLLE REv. 125 (1993). Ginsburg focuses on extending equality to women in the United States. She begins with a short overview of the Bill of Rights and other major points in the struggle for equal­ ity, including opinions by the Supreme Court. She then contrasts the manner in which the Court was able to push society toward acceptance of its equality jurisprudence without a backlash, unlike the highly contentious and divisive manner in which it handled the abortion issue. She argues that Courts imperil their position as fi­ nal arbiters of Constitutional meaning when they step too far out in front of society. Ruth Bader Ginsburg, Constitutional Adjudication in the United States as a Means of Advancing the Equal Stature of Men and Women Under the Law, 26 HOFSTRA L. REV. 263 ( 1997). Ginsburg first pro­ vides a background on the evolution of individual rights in the Constitution, both via amendment and through judicial interpreta­ tion. She then presents the line of cases, from Reed through VMJ, which represent the point at which women "began to count in con­ stitutional adjudications." Id. at 266. Ruth Bader Ginsburg & Wendy Webster Williams, Court Archi­ tect of Gender Equality: Setting a Firm Foundation for the Equal Stature of Men and Women, in REAsoN AND PASSION (E. Joshua Rosenkranz & Bernard Schwartz eds., 1997). This piece, which is interspersed with dialogue between the two authors, describesJustice Brennan's

57 5 Cal. 3ct I, 485 P.2d 529 (Cal. 1971). 2004] RUTH BADER GINSBURG 407 attempts to set the standard for constitutional review of sex-based classifications. It follows his opinions from Frontiero through Wiesen­ Jeld and Goldfarb, and other sex discrimination cases of the 1970s, many of which Ginsburg either argued or wrote supporting briefs. The article juxtaposes Ginsburg's memories of the briefs and argu­ ments with Brennan's judicial opinions. Ruth Bader Ginsburg, Employment of the Constitution to Advance the Equal Status of Men and Women, in THE CONSTITUTIONAL BASES OF POLITICAL AND SOCIAL CHANGE IN THE UNITED STATES 185 (Shlomo Slonim ed., 1990). This volume had its genesis in a con­ ference held at the Department of American Studies at the Hebrew University of.Jerusalem in 1987, commemorating the bicentennial of the U.S. Constitution. Ginsburg's twelve-page contribution ac­ knowledges that " [w] omen played no part in the Constitution, as originally conceived[,]" before moving to a discussion of the gen­ der equality cases decided by the Court in the 1970s. Id. at 185. Ruth Bader Ginsburg, The Equal Rights Amendment is the Way, 1 HARV. WoMEN's LJ. 19 (1978). This comment was based on re­ marks delivered at the .Judicial Conference of the Second Circuit in September, 1976. In it, Ginsburg argues that the E.R.A. would re­ lieve judicial uneasiness in interpreting the Constitution in ways that view women as equal to men. Ruth Bader Ginsburg, From No Rights, to Half Rights, to Confus­ ing Rights, HUMAN RIGHTS, May 1978, at 12. In this short piece, Ginsburg finds that at the end of the 1977 term, the Court "contin­ ues to respond uncertainly and unevenly to sex-equality claims." Id. at 13. In trying to discern why the Court showed promising gains in this area of the law in the 1970s, only to retreat from this position and change its doctrine in later cases, Ginsburg posits that it is the Court's inability to deal consistently with pregnancy that may pro­ vide the explanation. Ruth Bader Ginsburg, The Role of the Equal Rights Amend­ ment in Promoting Legislative and .Judicial Change, Panel Presen­ tation: Gender-based Discrimination and the Equal Rights Amendment, Second Circuit .Judicial Conference, 74 F.R.D. 315 (1976). Ginsburg argues in favor of the Equal Rights Amendment, suggesting that it will provide both the Court and the legislatures (state as well as federal) the impetus to eliminate gender-based ref­ erences in statutes and that it will require that any such distinctions meet the strict scrutiny standard of review. Ruth Bader Ginsburg, Gender in the Supreme Court: The 1973 and 1974 Terms, 1975 SuP. CT. REv. 1 (1975). Ginsburg traces the seven 408 NEW YORK CITY LAW REVIEW [Vol. 7:391 cases that impacted sex discrimination jurisprudence in these two terms. She criticizes the Court as unwilling to recognize the perva­ siveness of sex role stereotyping and thus unwilling to develop new doctrine in the area. She laments the Court's practice of address­ ing the issues on a case-by-case basis without acknowledging the underlying similarities of the cases. Ruth Bader Ginsburg, Gender in the Supreme Court: The 1976 Term, in CONSTITUTIONAL GOVERNMENT IN AMERICA: ESSAYS AND PROCEEDINGS FROM SOUTHWESTERN UNIVERSITY LAW REVIEW'S FIRST WEST COAST CONFERENCE ON CONSTITUTIONAL LAw 217 (Ronald K. L. Collins ed., 1980). Giving the 1976 Supreme Court term a decid­ edly mixed review, Ginsburg details many of the opinions issued during the term, among them Craig, Goldfarb, Webster, and Vorcheimer, as well as the Medicaid abortion decisions, which she labels a "stunning curtailment" of Roe v. Wade. 58 Ruth Bader Ginsburg, Gender and the Constitution, 44 U. C1N. L. REv. 1 ( 1975). This article is based on a series of lectures given at the University of Cincinnati College of Law in 1974. Ginsburg pro­ vides a history of judicial deference to discriminatory sex lines drawn by legislatures up through 1971. She then contrasts some of the cases from the early 1970s that indicate the beginning of sex discrimination doctrine. Finally, she contrasts the use of the equal protection principle (already enshrined in the Constitution) with the potential boost to equality that would follow the passage of the Equal Rights Amendment in fighting gender discrimination. Ruth Bader Ginsburg, Introduction to Women and the Law-A Symposium, 25 RUTGERS L. REv. 1 (1970). Written prior to the Court's decision in Reed, this piece foreshadows the legal develop­ ments of the 1970s. Ginsburg describes both the nascent litigation that was beginning to challenge laws that discriminated on the ba­ sis of sex, as well as the societal changes that were forcing these moves. Ruth Bader Ginsburg & Philip B. Kurland, Is the ERA Constitu­ tionally Necessary?, UPDATE ON LAw-RELATED EDuc., Spring 1978, at 16. In dueling articles, Ginsburg, then at Rutgers Law School, an­ swers the query of the title, "[y] es it will impel long overdue reform and insure that women are equal under the law." Philip B. Kur­ land, a professor at University of Chicago Law School, answers the question, "[n]o, it is an irrelevancy that diverts energy from secur-

58 410 U.S. 113 (1973). 2004] RUTH BADER GINSBURG 409 ing effective legislation." Each of the authors provides a short argu­ ment supporting her or his position. Id. at 16. Ruth Bader Ginsburg & Brenda F. Fasteau, Columbia Law School Equal Rights Advocacy Project, The Legal Status of Women Under Federal Law ( 197 4). At more than 200 pages and written as a report to the United States Commission on Civil Rights, this title­ by-title analysis of the federal statutes illustrates both "unnecessary or inappropriate gender-based references in need of terminologi­ cal revision, and substantive differentials inconsistent with the prin­ ciple of equal rights, responsibilities and opportunities ... ."Id. at 10. The report's recommendations include Congressional revision of statutes to include sex-neutral terminology, except in rare in­ stances, functional rather than gender distinctions, distinctions be­ tween child bearing (sex-specific) and child-rearing (sex-neutral), termination of sex-segregation in penal institutions, except as to sleeping and r bathroom facilities, and removal of statutory sex­ based exclusions in occupational opportunities, including the military. f Ruth Baqer Ginsburg, Let's Have E.R.A. as a Signa~ 63 A.B.A. J. 70 (1977). ~ter summarizing the Court's historical treatment of gender discriµiination cases as "anything goes," Ginsburg tracks the Court's recent (post-1971) decisions and argues that the Court treats the casJs as "isolated instances in a narrow frame." Id. at 72. She posits thatt passage of the Equal Rights Amendment would pro­ vide the judiciary with a legislatively adopted principle under which the courts could build a coherent set of gender discrimina­ tion opinions. Symposium, Men, Women and the Constitution: The Equal Rights Amendment, 10 CoLUM.j.L. & Soc. PROBS. 77 (1973). This is a tran­ script of cominents from a panel discussion held at Columbia Uni­ versity. Gins:Jmrg argues that, without the Equal Rights Amendment to act as a springboard, major legislative revision of the hundreds of sex-based references in state statutes will only con­ tinue piecemfal, as will litigation challenges to those statutes. She provides samples of archaic and harmful statutes as well as the judi­ ciary's rueful :responses when such statutes have been challenged, prior to Reed. She also addresses some of the myths that opponents of the Amendment have raised. Ruth Bader Ginsburg, The Need for the Equal Rights Amendment, 59 A.B.A.J. 1013 (1973). In this short article, Ginsburg posits that societal changes, such as women working outside the home, con­ tribute to the Court's (then recent) willingness to declare unconsti- 410 NEW YORK CITY LAW REVIEW [Vol. 7:391 tutional statutes legislating sex discrimination in Reed and Frontiero. She argues that the Equal Rights Amendment would give both the legislature and the judiciary the needed impetus to revise the stat­ ute books to eliminate sex-based discrimination. She also seeks to rebut a series of myths that opponents of the Amendment had proffered. Ruth Bader Ginsburg, Ratification of the Equal Rights Amend­ ment: A Question of Time, 57 TEx. L. REV. 919 (1979). Presented as the 1979 Will E. Orgain Lecture at Columbia University, this article focuses on the legal issues and policy ramifications of the 1978 Congressional extension of the time limitations for the ratification of the Equal Rights Amendment. Ruth Bader Ginsburg, Remarks at the Saturday Roundtable Discussion at the Conference on Civil Rights Developments (Nov. 17, 1984), in 37 RUTGERS L. REv. 1107 (1985). In this piece, Gins­ burg offers some advice and a warning to civil rights advocates. Her advice is to focus on state tribunals and lobbying legislatures, rather than attempting bold litigation in federal court, saying that it may take longer but the success will be more secure. She warns against attacking particular judges for their legal interpretations, arguing that such attacks will be used against advocates for progres­ sive legal change in the future. She also warns against seeking or accepting "special treatment" for pregnancy, arguing that such treatment can create doctrine that would erode the equality victo­ ries of the 1970s. Id. at ll 10. Ruth Bader Ginsburg, Reproductive Autonomy, in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1552 (Leonard w. Levy et al. eds., 1986). The entry is an analysis of United States Supreme Court cases affecting reproductive freedom, from Skinner v. Oklahoma,59 through the birth control cases of Griswold v. Connecticut,60 Eisen­ stadt v. Baird,61 and Carey v. Population Serv. Int'l62 and the land­ mark abortion case of Roe v. Wade. Most of the piece involves a discussion of Roe and its progeny. Ginsburg analyzes the opinions of individual justices in reproductive rights cases since Roe, predict­ ing only a continued adherence to Roe, and declining to predict

59 316 U.S. 535 (1942) (invalidating an Oklahoma statute requiring compulsory sterilization for habitual offenders). 60 381 U.S. 479 (1965) (declaring unconstitutional as applied to married persons, a statute criminalizing the sale of contraceptives). 61 405 U.S. 438 (1972) (holding unconstitutional on equal protection grounds, a statute that prohibited the distribution of contraceptives to unmarried persons). 62 431 U.S. 678 ( 1977) (invalidating a New York law prohibiting the sale of contra­ ceptives to minors). 2004] RUTH BADER GINSBURG 411 how the Court might rule on extensions of the principles in Roe. 63 This piece was reprinted in the second edition of the ENCYCLOPE­ DIA. Ruth Bader Ginsburg, Reproductive Autonomy, in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 2203 (Leonard w. Levy et al. eds., 2d ed. 2000). The piece also was excerpted in CIVIL RIGHTS AND EQUALilY. See next entry. CIVIL RIGHTS AND EQUALilY 310-321 (L. Levy et al. eds., 1989) (1986). See prior entry for annotation. Ruth Bader Ginsburg, Sex Discrimination, in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1666 (Leonard w. Levy et al. eds., 1986). The entry is an overview of how the United States Supreme Court has addressed sex discrimination from early cases allowing protective discrimination such as Muller v. Oregon, 64 through the explosion of sex discrimination cases in the 1970s and early 1980s. Describing the evolution of the Court's recognition of gender dis­ crimination, Ginsburg finds that " [ t] he Court, since 1970 has cre­ atively interpreted clauses of the Constitution (equal protection and, less securely, due process) to accommodate a modern vision of sexual equality in employment, in access to social benefits, in most civic duties, in reproductive autonomy." Id. at 1673. This piece also was reprinted in the second edition, ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 2389 (Leonard w. Levy et al. eds., 2d ed. 2000) anq was excerpted in CIVIL RIGHTS AND EQUALilY. See next entry. CIVIL RIGHTS AND EQUALilY 310-321 (L. Levy, et al. eds., 1989) (1986). See prior entry. Ruth Bader Ginsburg, Sex Equality and the Constitution, 52 TuL. L. REV. 451 (1978). This article is based on a speech given as the George Abel Dreyfous Lecture in 1978. Ginsburg traces the history of gender-based discrimination, beginning with the writing of the Constitution through the development of the middle tier of review in sex discrimination cases decided in the 1970s.

63 It appears safe to predict continued "adher[ence] to stare decisis in ap­ plying the principles of Roe v. Wade." But other issues remain beyond the zone of secure prediction. Current opinions do not indicate whether the Court eventually will relate its reproductive autonomy deci­ sions to evolving law on equal status of men and women. Nor can one forecast reliably how science and population will influence the next de­ cades' legislative and judicial decisions in this area: Ruth Bader Ginsburg, Reproductive Autonomy, in ENCYCLOPEDIA OF THE AMERICAN CON­ STITUTION, 1552, 1557 (Leonard W. Levy et al. eds., 1986). 64 208 U.S. 412 (1908) (affirming a state court's upholding of a statute restricting employment hours of women and taking judicial notice of the historical belief that women require protective legislation). 412 NEW YORK CITY LAW REVIEW [Vol. 7:391

Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 4 WoMEN's RTs. L. REP. 143 (1978). Looking specifically at several cases decided in the 1976-1977 term, Ginsburg finds the Court's middle-tier standard of review for sex-based classification cases in flux. She argues that the passage of the Equal Rights Amendment would give the Court a more secure foundation for its rulings than that provided by the Fifth and Fourteenth Amendments. Ruth Bader Ginsburg, Sex Equality and the Constitution: The State of the Art, 14 WoMEN's RTs. L. REP. 361 (1992). This piece serves to update the original article of the same title, written fourteen years earlier. See prior entry. Ginsburg continues to find the constitu­ tional law surrounding sex equality "in mid-passage," evolving but confronting a "sharply divided" Court. Id. at 366. To reach this con­ clusion, she focuses on several discrimination decisions of the Court during the 1976 term. The cases, beginning with Craig v. Boren, include Califano v. Goldfarb, Califano v. Bakke, and Vorchheimer v. School District of Philadelphia, illustrate that the Court "either does not see, or is unwilling to acknowledge, all of these cases as part and parcel of a single larger issue." Id. at 361-2. Ruth Bader Ginsburg, Sex and Unequal ProtectiiJn: Men and Wo­ men as Victims, llJ. FAM. L. 347 (1971). The article is based on the keynote address given by then-Professor Ginsburg at the Southern Regional Conference of the National Conference of Law Women in 1971. Ginsburg states that the "challenge for the 1970's is to dislodge artificial props that continue to support a sex role division made obsolete by technology and society's drastically curtailed child-production goals." Id. at 350. It is noteworthy that the article describes two cases, Reed v. Reed and Stanky v. Illinois,65 as having been accepted recently for review by the Supreme Court. These decisions became what Ginsburg later described as the first hint that the Court was moving in a new direction in sex discrimination cases.66 Ruth Bader Ginsburg, Sexual Equality Under the Fourteenth and Equal Rights Amendments, 1979 WASH. U. L.Q. 161 (1979). This piece originally was a lecture presented on February 14, 1979 as part of the series, The Quest for Equality. Ginsburg addresses the is-

65 405 U.S. 645 (1972) (holding that Illinois' denial of fitness hearing to an unwed father when the state provided such a hearing to other parents was a denial of equal protection). 66 Ruth Bader Ginsburg, Gender and the Constitution, 44 U. CrN. L. REv. 1, 11 (1975). 2004] RUTH BADER GINSBURG 413 sue of whether the Equal Rights Amendment is needed to advance women's equal treatment under the law, given the development of equal protection law under the Fourteenth Amendment. Analyzing many of the sex discrimination cases decided in the mid-l 970s, she finds that the development of the law in this area has been mud­ dled and uneven. She posits that passage of the ERA would provide the judiciary with a constitutional principle of equality that would be the basis ·upon which to build a clear and strong equality jurisprudence~ Ruth Bader Ginsburg & Barbara Flagg, Some Reflections on the Feminist Legal Thought of the 1970s, 1989 U. Cm. LEGAL F. 9 (1989). Ginsburg discusses Reed, Frontiero, and Wiesenfeld, in the context of the criticism the cases received from legal theorists. She argues that the importance of these early cases was their ability to educate the Supreme Court to recognize the underlying assumptions of sex­ based classifications. Without such education, she argues, the Court would not have been able to depart from its precedents, which severely limited women's participation in society. This piece illustrates Ginsburg's role as a pragmatist and consensus builder: she urges th~t while feminism in the 1980s is a "house of many gables," it is iplportant to focus on common ground and respect the contributions from all those involved in the fight. Id. at 18-21. Ruth Ba~er Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, William T. Joyner Lecture on Constitutional Law at the University of North Carolina School of Law (Apr. 6, 1984), in 63 N.C. L. REv. 375 (1985). Contrasting the public reaction to the sex discrimination cases of the 1970s with that of the reproductive autonomy cases (Roe and its progeny), Ginsburg suggests that the Court was overreaching in Roe because it called into question almost all state abortion statues. She also argues that the Court presented an incomplete justification for its decision because it did not link its opinion to women's autonomy and to the sex discrimination doctrine that existed at the time. Ginsburg posits that with a narrower opinion and a linkage to equal protection-based arguments, the public reaction against Roe could have been abated. Ruth Baqer Ginsburg, Some Thoughts on Benign Classification in the Context ofrSex, 10 CONN. L. REv. 813 (1978). An abbreviated, non-footnoted version of this article appeared originally in Novem­ ber-December, 1977 issue of Civil Liberties Review, at 8, under the title, Women, Equality & the Bakke Case. See next entry. In the article, Ginsburg discusses the Court's departure from the acceptance of 414 NEW YORK CTTY LAW REVIEW [Vol. 7:391

"women protective" rationalizations for legislation, but notes that the Court has left a "corridor for genuinely compensatory classifi­ cation" similar to those used in racial discrimination cases. Id. at 823. Ruth Bader Ginsburg, Women, Equality and the Bakke Case, C.L. REv., Nov.-Dec. 1977, at 8, expanded and reprinted as Ruth Bader Ginsburg, Some Thoughts on Benign Classification in the Context of Sex, 10 CoNN. L. REv. 813 (1978). See prior entry for annotation. Ruth Bader Ginsburg, Women as Full Members of the Club: An Evolving American Ideal, 6 HuM. RTs. 1 (1976). Ginsburg examines recent federal and state equal protection cases that indicate that, as of 1976, there was no clear judicial support for repudiating sex­ based statutes or actions. She suggests that placing women's equal­ ity explicitly in the Constitution via the Equal Rights Amendment would provide the stimulus for courts to aggressively remedy sex­ based discrimination. Ruth Bader Ginsburg, Women, Men and the Constitution: Key Su­ preme Court Rulings, in WOMEN JN THE COURTS 21 (Winifred L. Hep­ perle & Laura Crites eds., 1978). Ginsburg provides a fairly detailed account of the major sex discrimination cases of the 1970s and includes a specific section on the issue of pregnancy and its ability to divert the quest for gender equality. This piece is note­ worthy for its extensive examination of women's status in the Con­ stitution and in the courts prior to 1965. Ginsburg describes the effects of Lochner, 67 Muller/;8 Goesaert, 69 and Hoyt7° in shaping how women were perceived and treated by the law. Ruth Bader Ginsburg, Women's Right to Full Participation in Shaping Society's Course: An Evolving Constitutional Precept, in TowARD THE SECOND DECADE: THE IMPACT OF THE WOMEN'S MOVEMENT ON AMERICAN INSTITUTIONS 171 (Betty Justice & Renate Pore eds., 1981). The volume is composed of talks originally given at West Virginia University in 1978. Ginsburg's contribution focuses on the constitutional litigation regarding gender-based discrimination, in­ cluding Reed, Frontiero, and Craig, in light of her argument that pro­ tectionism is discrimination. She writes, "every gender-classifying law can be characterized as favor or as discrimination, depending on one's perspective." Id. at 180.

67 Lochner v. New Yorft, 198 U.S. 45 (1905). 68 Muller v. Oregon, 208 U.S. 412 (1908). 69 Goesaert v. C/,eary, 335 U.S. 464 (1948). 10 Hoyt v. Florida, 368 U.S. 57 (1961). 2004] RUTH BADER GINSBURG 415

D. Judicial Philosophy and the judiciary In 1980, President Jimmy Carter appointed Ginsburg to the Court of Appeals of the District of Columbia.71 With this appoint­ ment, she entered another phase in her legal career that continues today-that of a judge on an appellate bench. She also began to define and dt:;scribe those attributes that she felt most strongly re­ flected the role of an appellate judge, those of moderation,72 col­ legiality,73 independence,74 and intelligence. Ginsburg also devoted scholarly attention to the unique aspects of the work of appellate judging, 75 as well as on the negative impact that an in­ creased caseload76 and politics77 could have on the judiciary. Ruth Bader Ginsburg, A Moderate View on Roe, CONST., Spring/ Summer 1992, at 17. In a short guest column, Ginsburg compares how the Court handled the sex discrimination cases in the 1970s with the Roe v. Wade decision. She argues that in the sex discrimina­ tion cases, the Court opened a dialogue with the legislature in urg­ ing them to rethink their laws, but that the Court in Roe overrode the legislative branch by calling into question the constitutionality of all abortion statutes. By stopping the legislative process in this way, she believes that the Court itself was responsible for the back­ lash to the de~ision and the prolonged divisiveness of the abortion controversy. I Ruth Bader Ginsburg, Keynote Address at Bicentennial Cele­ bration of the District of Columbia Circuit (Mar. 8-9, 2001) (pts. 1 I

71 See Olney, supra note 28, at 115. 72 "Measured lnotions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstabie." Ginsburg, supra note 20, at 1198. Ginsburg often uses the exam­ ple of Roe as one in which the Court moved too far too fast, causing an unnecessary backlash. Id. at 1199-1201, nn.81-100. 73 Ginsburg has frequently criticized the growing use of separate opinions in the appellate courts, arguing that their overuse would dilute and undermine the authority of federal court decisions. See Ruth Bader Ginsburg, Styles of Collegial Judging: One Judge's Perspective, 39 FED. B. NEWS &J. 199, 200 (1992). See generally Ruth Bader Gins­ burg, Speaking in aJudicial Voice, 67 N.Y.U. L. REv. 1185 (1992); Ruth Bader Ginsburg, Remarks on Writini; Separately, 65 WASH. L. REv. 133 (1990). 74 Ginsburg, Remarks on Judicial Independence, supra note 27, at 603 (calling the independent judiciary one of the "crown jewels" of the U.S. system of government). 75 See generally Ruth Bader Ginsburg, The Obligation to Reason Why, 37 U. FLA. L. REv. 205 (1985). 76 See generally Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior and Workload of Federal Judges, 55 U. COLO. L. REv. 1 (1983). 77 See generally Ruth Bader Ginsburg, Confirming Supreme Court Justices: Thoughts on the Second Opinion Rendered by the Senate, David C. Baum Lecture at the University of Illinois College of Law Uan. 27, 1988), in 1988 U. ILL L. REv. 101 (1988). 416 NEW YORK CITY LAW REVIEW [Vol. 7:391

& 2), in 204 F.R.D. 499, 504, 548 (2002). This speech closely fol­ lows the themes developed in Ginsburg's and Bloch's article Cele­ brating the 200th Anniversary of the Federal Courts of the District of Columbia, 90 GEo. LJ. 549 (2002). In the first part of the address, Ginsburg provides a short history of the D.C. Circuit, and then fo­ cuses on the court's role, bolstered by its location, as the overseer of both the executive and legislative branches of government. She points to its involvement in controversial cases, including Water­ gate,7s the Pentagon Papers,79 and the Korean War "steel seizure" case.so In the second part of the address, Ginsburg focuses on the court's role in race and gender discrimination litigation. Employ­ ing narratives from cases ranging from restrictive covenant and school desegregation cases to early suffrage and abortion cases, she concludes that the D.C. courts have "participated prominently in the evolution of the concept 'We the People' to encompass all who dwell in this land, including people once excluded, ignored or un­ dervalued." Id. at 555. Susan Low Bloch & Ruth Bader Ginsburg, Celebrating the 200th Anniversary of the Federal Courts of the District of Columbia, 90 GEO. L. J. 549 (2002). This is the article upon which Justice Ginsburg's speech at the Bicentennial Celebration of the District of Columbia Circuit (May 8, 2001) was based. See prior entry. It examines the history of D.C. courts and the race and gender cases that had come before the courts, and analyzes the viewpoint of the D.C. Circuit court, as protector of the rule of law and responder to the pleas of the vulnerable. Ruth Bader Ginsburg, Communicating and Commenting on the Court's Work, Address, 83 GEo. LJ. 2119 (1995). This address is revised and reprinted in another article.s1 Ruth Bader Ginsburg, Confirming Supreme Court Justices: Thoughts on the Second Opinion Rendered by the Senate, David C. Baum Lecture at the University of Illinois College of Law (Jan. 27, 1988), in 1988 U. ILL. L. REv. 101 (1988). This piece elaborates on a portion of Ginsburg's 1981 article, Inviting judicial Activism: A 'Liberal' or 'Conservative' Technique?, John A. Sibley Lecture in Law delivered at the University of Georgia School of Law (Jan. 26, 1981) in 15 GA. L. REV. 539 (1981). Ginsburg starts with a short

7S United States v. Nixon, 418 U.S. 683 (1974). 79 New York Times Co. v. United States, 403 U.S. 713 (1971). so Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). SI Ruth Bader Ginsburg, Informing the Public about the U.S. Supreme Court's Work, 29 LOY. U. CHI. LJ. 275 (1998). 2004] RUTH BADER GINSBURG 417 history of the Senate's role of advising and consenting to presiden­ tial judicial appointments. She discusses several of the candidates who have been rejected by the Senate and then focuses on Robert Bork's nomination, which she argues was an overt politicization of the judicial selection process. Ginsburg also discusses state judicial processes, and examines another instance of what she deems to be overt politiciz,ation, the recall of Rose Bird from the California Su­ preme Court. However, even as she worries that these cases and others like thbm have the potential to negatively affect judicial se­ lection, she states that she is heartened by the lack of rancor and politicization in Justice Kennedy's confirmation. Ruth Bader Ginsburg, Infonning the Public about the U.S. Supreme Court's Work, 29 Lov. U. Cm. LJ. 275 (1998). This is a revised, up­ dated version of the lecture, Communicating and Commenting on the Court's Work, 83 GEO. LJ. 2119 (1995). Ginsburg details how the Court attempts to inform the public of its decisions and she de­ scribes the process of obtaining feedback from the public, from the legal academy, and from fellow jurists and how this informs opin­ ion-writing. Ruth Bader Ginsburg & Peter W. Huber, The Intercircuit Com­ mittee, 100 HARV. L. REv. 1417 (1987). In this commentary, Gins­ burg and Huber argue that the creation of an lntercircuit Panel to resolve interqrcuit conflicts on federal statutory interpretation is not the answ~r to the Supreme Court's workload problems, sug­ gesting that such a panel could actually undermine the Court and its relationship to the other branches of government. The authors attribute the problem to poor legislative drafting and suggest that Congress take more care when drafting statutes or that Congress institute a sys~em of legislative review and revision once a court has identified an issue with a statute. Ruth Bader Ginsburg, Interpretations of the Equal Protection Clause, 9 HARv.J.L. & Pus. PoL'v41 (1986). Pointing out that it was the "conservative" Burger Court and not the "activist" or "liberal" Warren Court that issued the series of rulings in the 1970s that declared many sex discrimination statutes unconstitutional, Gins­ burg argues that labeling judges as conservative or liberal is often a strategy of thpse who have not prevailed in the litigation. She con­ tends that the federal judiciary is and should be composed of inde­ pendent thin'kers skeptical of party lines and ready to examine their own pr~mises so as to remain impartial. Ruth Bader Ginsburg, Inviting judicial Activism: A "'Liberal'" or "'Conservative'"' Technique?, 15 GA. L. REV. 539 (1981). In this piece, 418 NEW YORK CITY LAW REVIEW [Vol. 7:391

Ginsburg argues that it is not judges who have become more politi­ cal or more activist, rather it is the explosion of political litigation and a legislature that fails to speak with precision and fails to over­ see administrative agencies. She illustrates each of these positions with references to case law, legislation, and litigation anecdotes. She concludes by remarking on the attempts to actively politicize the judiciary by requiring political interrogations of federally ap­ pointed judges. Ruth Bader Ginsburg, A Plea For Legislative Review, 60 S. CAL. L. REv. 995 ( 1987). This piece is the publication of the Justice Lester William Roth Lecture; it later was developed into the article, The Intercircuit Committee, 100 HARV. L. REv. 1417 (1987), cited previ­ ously in this section. Ruth Bader Ginsburg, The Obligation to Reason Why, 37 U. FLA. L. REv. 205 (1985). Generally referencing the D.C. Circuit's inter­ nal court policy, Ginsburg describes the trail of an appellate deci­ sion, through oral argument, the assignments of authoring opinions, and publication. She addresses the practice of issuing ab­ breviated and unpublished decisions, supporting their use, but urging safeguards such as circulation to the full bench and publica­ tion outside of the Federal Reporter. Ruth Bader Ginsburg, On Amending the Constitution: A Plea for Patience, Spring 1990 Ben J. Altheimer Lecture, University of Arkansas at Little Rock School of Law (Feb. 7, 1990), in 12 U. ARK. LITTLE RocK L. REv. 677 (1990). Ginsburg outlines the processes for amending the Constitution as well as provides a historic over­ view of the many attempts to do so. While she mentions that she supports the eventual passage of the Equal Rights Amendment, she stresses that the relative lack of amendments in the Constitution is a source of strength and clarity for the document. Symposium, On Becoming a judge: Socialization to the judicial Role, 69 Juo1CATURE 139 (1985). Ginsburg was one of six judges on a panel addressing and evaluating the processes that new judges use to adapt to being judges. Ginsburg offers some interesting anec­ dotes about how the requirement that judges limit their interac­ tions with those outside the courthouse has affected her. Ruth Bader Ginsburg, On Muteness, Confidence, and Collegiality: A Response to Professor Nagel, 61 U. CoLo. L. REv. 715 (1990). Re­ sponding to the article, Robert Nagel, Political Pressure and judging in Constitutional Cases, 61 U. CoLo. L. REv. 685 (1990), Ginsburg questions some of Professor Nagel's postulations that muteness suggests satisfaction with a political process. She further argues that 2004] RUTH BADER GINSBURG 419 the U.S. system of allowing divided opinions that invite public dis­ cussion is a reflection of the confidence the United States has in its judicial system. Ruth Bader Ginsburg, Reflections on the Independence, Good Behavior, and Workload of Federal Judges: The John R. Coen Lecture Series, in 55 U. CoLo. L. REV. 1 (1983). Arguing that the "good behavior" clause of Article III serves as a guarantee of judicial independence, Ginsburg posits that the growing workload of federal judges threatens that independence. She offers several possible solutions to this problem, including the elimination of di­ versity jurisdiction, discretionary appeals in administrative agency appeals, the requirement of five rather than four votes in the United States Supreme Court for certiorari, and the elimination of appeals by right. Ruth Bader Ginsburg, Remarks on Judicial Independence, Re­ marks at the Hawai'i State Bar Reception (Feb. 3, 1998), in 20 U. HAW. L. REV. 603 (1998). In this speech, hailing the necessity and importance ofjudicial independence, Ginsburg comments that the slow pace of judicial appointments threatens a strong judiciary. Ruth Bader Ginsburg, Remarks on Writing Separately, 65 WASH. L. REv. 133 ( 1990). This article provides a brief overview of three types of appellate judgments: the British system of individual opin­ ions from eacr member of the bench; the single anonymous opin­ ion with no dissent, which is most often used in civil law countries; and the U.S. system of a single opinion, with dissents and concur­ rences. Ginsburg suggests that the U.S. Supreme Court has moved unsettlingly close to the British system, with a growing number of separate opinions. She argues that this can ultimately weaken the clarity and certainty of judicial decisions. Ruth Bader Ginsburg, Some Thoughts on judicial Authority to Re­ pair Unconstitutional Legislation, 28 CLEv. ST. L. REv. 301 (1979). Ginsburg addresses the choice courts face with legislation that is unconstitutional because it is underinclusive: either nullification or I extension. Using Supreme Court cases, she details the various fac- tors the Court has taken into consideration when making the deci­ sion to nullify or extend. She argues that while the decision to extend may be judicial legislating, it is better to preserve a law em­ ploying common sense and sound judgment than to nullify it and completely destroy the legislative purpose. Ruth Bader Ginsburg, Speaking in a judicial Voice, 67 N.Y.U. L. REV. 1185 (1992), reprinted in THE UNPREDICTABLE CONSTITUTION 71 (Norman Dorsen ed., 2002). Ginsburg addresses the impor- 420 NEW YORK CITY LAW REVIEW [Vol. 7:391

tance of collegiality and moderation in appellate courts. On col­ legiality, she stresses the importance of limiting separate writings (either concurrences or dissents), arguing that too many of either undermines the respect for individual judicial determinations. Urging judicial moderation and using Roe v. Wade as an example of judicial overreaching that fueled instead of settled a controversy, she suggests that the Court should rarely issue broad opinions. She suggests that the judiciary is better served by narrowly drawn opin­ ions that force legislatures to reexamine their positions. Ginsburg states her belief that only in the rare case-such as when it be­ comes obvious that the legislature is failing to act-should courts take the lead. Ruth Bader Ginsburg, Sty1-es of Collegial judging: One judge's Per­ spective, 39 FED. B. NEws & J. 199 ( 1992). Ginsburg stresses the im­ portance of collegial judging and of using dissents sparingly, explaining that the virtues of the rule of law such as consistency, predictability, clarity, and stability, are threatened by courts that issue numerous dissenting or concurring opinions. She also de­ scribes the D.C. Circuit's internal policies, which help keep its judges institutionally focused rather than individualistic.

E. The Legal Profession Most, but not all, of these pieces were written after Ginsburg was appointed to the federal bench in 1980. Given that she has practiced law, taught law, and now sits on the nation's highest court interpreting its laws, she is in a uniquely qualified position to comment on many aspects of the legal profession.

1. Appellate Advocacy In these pieces, Ginsburg offers advice on all aspects of appel­ late advocacy, including deciding to appeal, drafting the brief, and making oral arguments. In keeping with descriptions of her as a 'judge's judge" and "a tiger on the bench" "who won't tolerate obfuscation or sloppy thinking,"82 Ginsburg's views on appellate advocacy are short, concise and pointed, and highly useful for any appellate lawyer. Ruth Bader Ginsburg, Foreword to DAVID C. FREDERICK, THE ART OF ORAL AnvoCACY ix (2003). Claiming that oral advocacy is an art, but one that can be learned, Ginsburg presents her creden-

82 Susan H. Williams & David C. Williams, Sense and Sensibility: justice Ruth Bader Ginsburg's Mentoring Style as a Blend of Rigor and Compassion, 20 U. HAW. L. REv. 589, 590 (1998). 2004] RUFH BADER GINSBURG 421 tials (arguing six times before the Supreme Court, and observing arguments as a judge for twenty-two years) and offers a ringing en­ dorsement of Frederick's book. She also offers her own view of what an argument should be-"a discussion between knowledgea­ ble attorneys and jurists who have done their homework." Id. at x. Ruth Bader Ginsburg, Panel II: Appellate Advocacy Today: What Wins ahd What Loses, Judicial Proceedings-D.C. Circuit, Qune 7, 1991), in 140 F.R.D. 481 (1991). Here, Ginsburg joins then-Chief Judge Stephen Breyer of the First Circuit Court of Ap­ peals and Solicitor General Kenneth Starr, among others, in a panel discussion of effective appellate advocacy. She suggests that lawyers should be ready to concede when an issue is not genuinely in doubt, she urges brevity and concision, and exhorts advocates to avoid disparaging opposing counsel. She also gives advice to law­ yers on the same side of issues, suggesting joint briefs and restrict­ ing oral arguments so that positions are not merely repeated but refined. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, IowA An­ voc., Spring/Summer 1987, at 18. In a short piece, Ginsburg ini­ tially suggests that most cases should not be appealed and points to statistics indicating that most cases are affirmed. But to those pre­ paring to appeal, she argues for concise, precisely drafted briefs which do not'belabor their points. She also urges advocates to cite to academic commentary to support their arguments. Ruth Bader Ginsburg, Remarks on Appellate Advocacy, 50 S.C. L. REV. 567 (1999). In this short but informative piece, originally de­ livered as a speech, Ginsburg provides a guide to brief writing and oral argument that distills the details of good appellate advocacy and the difficulty in bringing a successful appeal. She points out that the brief is far more persuasive than the oral argument. She also states that the best briefs are highly selective, only cite cases with parentheticals, and cite commentary or other scholarly analy­ sis. With regard to oral argument, she urges lawyers to listen care­ fully to the questioning from the bench, using such questions as cues for focusing one's argument.

2. Legal Ethics While legal ethics has not been one of Ginsburg's predomi­ nant interests, she has devoted scholarly attention to ethical issues in several recent pieces. As might be predicted from her other work, she is concerned with issues of access to justice, including public interest lawyering and pro bono efforts by the bar. 422 NEW YORK CITY LAW REVIEW [Vol. 7:391

Ruth Bader Ginsburg, In Pursuit of the Public Good: Access to jus­ tice in the United States, 7 WASH. U. J.L. & PoL'Y 1 (2001). Originally given as the Jurist in Residence Address, in this piece Ginsburg fo­ cuses on public interest lawyering, discussing legal aid organiza­ tions and pro bono services of the private bar. She finds the recent drop in pro bono activities of the private bar cause for concern but also sees hopeful signs in the growth of neighborhood legal clinics supported by law schools and law firms. Ruth Bader Ginsburg, In Pursuit of the Public Good: Lawyers Who Care, 52 ME. L. REV. 301 (2000). In this publication of the Frank M. Coffin Lecture on Law and Public Service at Maine Law School, Ginsburg refers to many current public service lawyers and judges, including Frank Coffin, as well as Roger Baldwin, Charles Hamil­ ton Houston, Burnita Shelton Matthews, Ralph Nader, and Regi­ nald Huber Smith, to illustrate the importance of those who dedicate their practice to the public good. Ruth Bader Ginsburg, Supreme Court Discourse on the Good Behavior of Lawyers: Leeway Within Limits, Remarks at Drake Uni­ versity Law School's Dwight D. Opperman Lecture (Oct. 25, 1995), in 44 DRAKE L. REv. 183 (1996). Ginsburg presents a survey of Su­ preme Court cases concerning legal ethics. She covers the areas of privilege, work product, barriers to admission, solicitation, and dis­ cussing on-going proceedings. Ruth Bader Ginsburg, Supreme Court Pronouncements on the Conduct of Lawyers, Remarks at the 25th Anniversary of Hof­ stra University's Law School (Mar. 1996), in 1 J. INST. STUD. LEGAL ETHICS 1 ( 1996). This is a revised version of Supreme Court Discourse on the Good Behavior of Lawyers: Leeway Within Limits. See prior entry.

3. Legal Education Having taught law for seventeen years, Ginsburg remains inter­ ested in legal education. Her work often references the importance of the legal academy to the judiciary as legal commentators, lawyers arguing before the court, or as authors of amicus briefs. Ruth Bader Ginsburg, The Changi,ng Complexion of Harvard Law School, 27 HARV. WoMEN's LJ. 303 (2004). In a speech celebrating the more than 5,000 female graduates from Harvard Law School, Ginsburg notes that although Harvard did not allow her to effectu­ ate a spousal transfer and thus prevented her from being a Harvard law graduate, she enjoyed her time at Harvard, especially her clas­ ses with Benjamin Kaplan and Al Sacks as well as her work with the law review. 2004] RUTH BADER GINSBURG 423

Ruth Bader Ginsburg, Remarks, On the Interdependence of Law Schools and Law Courts, 83 VA. L. REV. 829 (1997). This piece is based on remarks Ginsburg made when receiving the Thomas Jef­ ferson Memorial Foundation Award in Law. She highlights the two ways law schpols affect the judiciary: law professors becoming judges and the judiciary's use of scholarly legal writings. Recogniz­ ing that commentary critical of the judiciary is important, she urges legal writers, law teachers and others to defend the judiciary by educating the press and the public about legal processes. Ruth Ginsburg, Remarks, Judicial Conference-D.C. Circuit (June 1, 1981), in93F.R.D.157, 180 (1982). Takingpartinapanel on Legal Education in the 80s: Focus on Tradition versus Re.form, Gins­ burg describ~s the outlook for law schools and students in the 1980s as less than heartening. She makes several suggestions for law school curriculum changes, including a required concentra­ tion in the second and third years, the use of clinics, and the use of experiential problems in conventional courses. She also addresses the issue of ~aw students' inability to write in clear and concise language. Ruth Ba~er Ginsburg, Remarks at the Rededication Cere­ mony, University of Illinois College of Law (Sept. 8, 1994) in 1995 U. ILL. L. REv. 11 ( 1995). Ginsburg recounts the history of legal education in America and also points to the heavy reliance of both the bench and the bar on legal scholarship. Ruth Bader Ginsburg, Remarks in Celebration of Stetson's Law Library and Information Center (no date provided), in 28 STETSON L. REV. 231 (1998). Ginsburg discusses the history and im­ portance of 1law libraries in supporting legal education and advocacy. 1

4. Women "At" (and Behind) the Bench and Bar Women in the law is a favorite topic of Justice Ginsburg, per­ haps because 'it seems to flow from her work on sex discrimination issues. She has long written on early women lawyers or law clerks and has recently expanded her focus by researching the wives of past Supreme Court Justices. She was instrumental in publishing Malvina Shanklin Harlan's work, Some Memories of a Long Life, 1854- 1911,83 a project she addressed in her remarks at CUNY School of

83 "Recently, ~ith urging from Justice Ginsburg, Random House agreed to publish Some Memories of fl Long Life, 1854-1911." Ann Hemmens, Memoirs of a Supreme Court Spouse, LAw LmRARY NEWS (May 27, 2002), at http://lib.law.washington.edu/news/ 2002/May272002.html (on file with the New York City Law Review). 424 NEW YORK CITY LAW REVIEW [Vol. 7:391

Law, which appear in this Symposium issue.84 Ruth Bader Ginsburg, Womens Work: The Place of Women in Law Schools, 32]. LEGAL EDuc. 272 (1982), reprinted in Ruth Bader Gins­ burg, The Progression of Women in the Law, 28 VAL. U. L. REv. 1161 (1994). Excerpted from a speech delivered to a conference on le­ gal education at New York University, Ginsburg describes the pro­ gress of women in the legal academy. Ruth Bader Ginsburg, Excerpts from Remarl

84 Ginsburg, Remarks, supra note 26. 2004] RUTH BADER GINSBURG 425

Report of the Special Committee on Gender, prepared for the D.C. Circuit Task Force on Gender, Race and Ethnic Bias, Ginsburg out­ lines the progress that has been made in eliminating gender bias in the court system. However, she cautions that the "critical mass" of women attorneys and upper level courthouse employees necessary to eradicate the effects of bias and discrimination in the D.C. Cir­ cuit courts has not yet been reached. Id. at 1653. Ruth Bader Ginsburg & Martin Ginsburg, A Grand Ideal for the Future, Excerpts From a 1992 Commencement Address at Northwestern School of Law, in 53 OR. ST. B. BuLL. 19 (1993). Ginsburg and her husband jointly addressed the graduating class of Northwestern School of Law. In this excerpt, she acknowledges the success of having forty-three percent of the graduates be wo­ men, but warps that "[r]aising young children ... continues to pose more formidable psychological and logistical obstacles for wo­ men than for men." Id. at 21. She points to her own husband's willingness to take part in the upbringing of their children as an example of how child raising can be handled to allow both parties to flourish. Ruth Bader Ginsburg, Introduction, 1 COLUM. J. GENDER & L. 1 (1991). Ginsburg provides a short overview of "the way it was" in t terms of worn,en 's participation in the legal system and hopes that the new journal will explore how women's participation in the law might affect t~e way the business of law is conducted. Ruth Baqer Ginsburg, Introduction to Women and the Law: Facing the Millennium, 32 IND. L. REv. 1161 (1999). In an introduction to a special issue of the Indiana Law Review, Justice Ginsburg uses narra­ tives of cases she litigated to provide an overview of the increasing equality of women in the legal system. Ruth Bader Ginsburg, Henry J. Miller Lecture: Little Known Pages of Supreme Court History Address Before Georgia State Uni­ versity College of Law (Feb. 13, 2003), available at http:/ I law.gsu.edu/ news/ archives_2003/NEWS_GinsTrans. pdf. Giving the Henry J. Miller lecture at Georgia State University College of Law, Ginsburg discusses Burnita Shelton Matthews, the first woman to serve on a Federal District Court and Malvina Harlan, the wife of Justice John Marshall Harlan. Highlighting her interest in histori­ cal research, Ginsburg describes her contribution to publishing Malvina Harlan's manuscript and securing publicity for the work. Ruth Bader Ginsburg, The Progression of Women and the Law, 28 VAL. U. L. REv. 1161 (1994). This article consists of reprints of two prior addresses by Ginsburg (Treatment of Women by the Law: 426 NEW YORK CITY LAW REVIEW [Vol. 7:391

Awakening Consciousness in the Law Schools, Remarks at the An­ nual Meeting of the Association of American Law Schools (Dec. 27, 1970), in 5 VAL. U. L. REV. 480 (1971) and Women's Work: The Place of Women in Law Schools, Remarks at New York University (Nov. 3, 1981), in 32]. LEGAL Eouc. 272 (1982)) as well as her statement upon being sworn in as a Supreme Court Justice. The article also includes a partial, non-annotated bibliography of Gins­ burg's writings. Ruth Bader Ginsburg, Realizing the Equality Principle, in SocIAL JusncE AND PREFERENTIAL TREATMENT 135 (William T. Blackstone & Robert D. Heslep eds., 1977). Ginsburg discusses the need for some types of affirmative-action programs to help address the his­ torical gender discrimination in society, but notes that such pro­ grams would rarely be numerically based. She urges support of comprehensive child care, stressing that until inequities in child rearing are solved, society and women will be shortchanged. Ruth Bader Ginsburg, Remarks at the City University of New York School of Law (Mar. 11, 2004), in 7 N.Y. Cr'IY L. REv. 221 (2004). In this talk at the City University of New York School of Law, celebrat­ ing the law school's twentieth anniversary, Justice Ginsburg dis­ cusses the career of Burnita Shelton Matthews, the first woman to serve on the federal bench, and Malvina Harlan, the wife ofJustice John Harlan, most famous for his dissent in Plessy v. Ferguson. This piece also includes a transcript of the question and answer session, in which Ginsburg addresses the "balance between liberty and se­ curity," the art of oral argument, her personal challenges in be­ coming a lawyer and maintaining her health, her "favorite case," the death penalty, language rights, and the tiers of equal protection. Ruth Bader Ginsburg, Remarks on Women's Progress in the Legal Profession in the United States, Address before the Oklahoma Bar Association Women in the Law Conference (Aug. 28, 1997), in 33 TULSA LJ. 13 (1997). Using her own life as an example, Ginsburg describes the strides women have made in the legal profession. Ruth Bader Ginsburg, Remarks on Women Becoming Part of the Constitution, 6 LAw & INEQ. 17 (1988). In this piece, Ginsburg at­ tempts to explain why the Court in the early 1970s became amena­ ble to recognizing sex role discrimination. She argues that the Court's openness reflected a realization of the justices, based in part on societal changes, that legislation designed to protect wo­ men often had the opposite effect. She states that she believes that 2004] RUTH BADER GINSBURG 427 the Court's slow but relatively steady progress in the area was one of its strengths, as it was based on the process of change in society, and thus did not lead to a backlash. Ruth Bader Ginsburg, Some Thoughts on the 1980s Debate Over Special Versus Equal Treatment for Women, 4 LAw & INEQ. 143 (1986). Addressing the National Association of Women Judges, Ginsburg articulates the dangers of seeking special treatment for women in such areas as pregnancy and child rearing. She warns that "special treatment" merely reinforces stereotyping and will un­ dermine the push for gender equality. Ruth Bader Ginsburg, American University Commencement Address (May 10, 1981), in 30 AM. U. L. REv. 891 (1981). In this address, Ginsburg traces the path of women in the judiciary with liberal use of anecdotes from the past as well as from own personal history. Ruth Bader Ginsburg, The Supreme Court: A Place for Wo­ men, Remarks at the Southwest University School of Law (Feb. 6, 2002), in 32 Sw. U. L. REV. 189 (2003). In this piece, Ginsburg recounts stories and anecdotes about the wives of Supreme Court Justices and some of the first women clerks to the Court. She also provides some historical insight into the early female federal court judges. Ruth Bader Ginsburg, Treatment of Women by the Law: Awaken­ ing Consciousness in the Law Schools, 5 VAL. U. L. REV. 480 (1971), reprinted in Thf Progression of Women in the Law, 28 VAL. U. L. REV. 1161, 1163 (1~94). Ginsburg argues that it is not enough for law schools to offer elective courses or a seminar on "Women and the Law," but instead there must be a systematic repudiation of gender stereotyping in legal courses (and course books) and, more impor­ tantly, materials on sex discrimination and women's disparate treatment must be incorporated into standard law school courses. Ruth Bader Ginsburg, The Washington College of Law Founders Day Tribute, 5 AM. U. J. GENDER & L. 1 (1996). In this speech to honor the two women who founded the Washington College of Law, Ginsburg presents some of the stories of the first women who clerked for the Supreme Court. She also offers some anecdotes on small, non-legal changes that she and Justice O'Connor helped to foster in the Supreme Court. Ruth Bader Ginsburg, Women at the Bar-A Generation of Change, 2 U. PUGET SouND L. REv. 1 (1978). Using anecdotes, many from recent litigation, statistics on women law students and attorneys, and' an overview of some of the changes in the law, Gins- 428 NEW YORK CITY LAW REVIEW [Vol. 7:391

burg provides a storied overview of how far women have come since she entered law school in 1956. Ruth Bader Ginsburg & Laura W. Brill, Women in the Federal Judiciary: Three Way Pavers and the Exhilarating Change Presi­ dent Carter Wrought, Address at the Annual Conference of the National Association of Women Judges (Oct. 7, 1995), in 64 FORD­ HAM L. REv. 281 (1995-1996). Ginsburg describes the lives of three women judges whom she believes paved the way for others: Flo­ rence Ellinwood Allen, Burnita Shelton Matthews, and Shirley Mount Hufstedler. She also contends that President Carter's ap­ pointment of forty women to the federal judiciary was the turning point after which women were no longer mere tokens in the fed­ eral judiciary.

5. Jewish Justices and Jewish Identity Ginsburg has long acknowledged that her Jewish identity has influenced her life. During her Supreme Court confirmation hear­ ing, she stated, Senator Kennedy, I am alert to discrimination. I grew up during World War II in a Jewish family. I have memories as a child, even before the war, of being in a car with my parents and passing a place in [Pennsylvania], a resort with a sign out in front that read: "No dogs or Jews allowed." Signs of that kind existed in this country during my childhood. One couldn't help but be sensitive to discrimination, living as a Jew in America at the time of World War II.85 She has also been active in Jewish organizations for much of her professional life.86 Collected here are works that discuss an as­ pect of Jewish identity, either her own or those of others in the legal profession. Ruth Bader Ginsburg, From Benjamin to Brandeis to Breyer: Is There a Jewish Seat?, Lecture at the Brandeis Honor Society Spring Banquet (Feb. 11, 2003), in 41 BRANDEIS LJ. 229 (2002). In this speech, Ginsburg refers to Judah P. Benjamin, the first Jew nominated to the Supreme Court (who refused the appointment) and Louis D. Brandeis, the first Jew appointed to the Court, noting that for both their religion was an issue in their public lives. She contrasts their situation with her own appointment and the ap-

85 Nomination of Ruth Bader Ginsburg, to be Associate Justice of the Supreme Court of the United States: Hearings Before the Comm. on the judiciary, 103d Cong. 197 (1994) (testi­ mony of Ruth Bader Ginsburg). 86 Malvina Halberstam, Ruth Bader Ginsburg: The First Jewish Woman on the United States Supreme Court, 19 CARDOZO L. REv. 1441, 1442 (1998). 2004] RUTH BADER GINSBURG 429 pointment of Justice Breyer. She argues that neither of them are seen as filling .a 'jewish seat" on the Court and that their religion was not at issue during the confirmation process. Id. at 235. Ruth Bader Ginsburg, Introduction to THE JEWISH JusTICES OF THE SUPREME ~OURT REVISITED: BRANDEIS TO FoRTAS Qennifer M. Lowe ed., 1994). In this introduction, Ginsburg finds that "[l]aw as protector of the oppressed, the poor, the minority, the loner, is evident in the work of the men celebrated in this book." Id. at 4. Ruth Bader Ginsburg, National Commemoration of the Days of Re­ membrance, Address at the United States Holocaust Memorial Mu­ seum (Apr. ~2, 2004), available at http:/ /www.supremecourtus. govI publicinfo I speeches/ sp_04-22-04.html. Here, Ginsburg thanks the museum "for its vigilant assurance that we will never forget the victims of the Nazi madness." Ruth Baqer Ginsburg, Reflections on Way Paving Jewish Justices and Jewish W~men, 14 TouRo L. REv. 283 ( 1998). In this article, Ginsburg offers descriptions of the first five Jewish Supreme Court Justices as well as anecdotes about several Jewish women who rank highly on her list of "great ladies." Ruth Bader Ginsburg, Remarks for Jewish Council for Public Af fairs in Appreciation for the Albert D. Chernin Award (Feb. 18, 2002), available at httrr:/ /www.supremecourtus.gov/publicinfo/speeches/ sp_02-18-02.html. This short speech, which is published on the Su­ preme Court's website, is predominately a description of the life of Judah Benjamin, the first Jew nominated (although he declined the post) to the Supreme Court.

F. Tributes, Remarks and Miscellany Included:.here are short pieces often initially given as speeches or other writings that do not fit into any of the larger categories above. Ginsburg, like many of the Justices, is often called on to speak at bar functions, graduations, award ceremonies, and other occasions. It spould be noted that the pieces may often seem repet­ itive or "canned," which is understandable given the large number of addresses Justice Ginsburg delivers to many different audiences each year. ACLU, LITTLE GIRLS SHOULD NOT PLAY LITTLE LEAGUE ... (un­ dated, circa mid-l 970s). This is a promotional pamphlet that lists many "should nots" for women (a woman should not ski, run track, play golf, etc.;) and ends with Ginsburg, then General Counsel of the ACLU, explaining that the ACLU has played a significant role in almost "every major sex discrimination case" in the Supreme 430 NEW YORK CITY LAW REVIEW [Vol. 7:391

Court and asking for support. It is included in this bibliography merely to clarify what the document is, as it has been listed in some non-annotated bibliographies of her work. Ruth Bader Ginsburg, American Bar Association Delegation Visits the People's Republic of China, 64 A.B.A. J. 1516 (1978). This piece is based upon Ginsburg's travel to three cities in China in 1978 as part of an A.B.A. delegation for the purpose of learning about China's legal system. She describes meetings with law professors, lawyers, and judges and the civil and criminal trials she was able to VIew. Ruth Bader Ginsburg, Book Review, 92 HARV. L. REv. 340 (1978) (reviewing LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw (1978)). In this review, Ginsburg describes Tribe's book as a "work of spectacular originality, sometimes elusive and uniformly provocative." She finds that he makes the ideas and tensions that have directed constitutional development more transparent and that he offers alternatives to traditional analysis. Id. at 340. Ruth Bader Ginsburg, A Feminist Lawyer Visits the New China, WoMEN's AGENDA, Jan. 1979, at 5. In this short article, Ginsburg compares and contrasts women's lot in "old" and "new" China. Ruth Bader Ginsburg, A Study Tour of Taiwan's Legal System, 66 A.B.A. ]. 165 (1980). Ginsburg spent approximately two weeks in Taiwan in 1979 visiting law schools, watching trials and appellate reviews, and talking to lawyers, law professors, and others. This short article is a summary of her findings. Ruth Bader Ginsburg, Touring the Law in King Arthur's Court, Book Review, 61 TEX. L. REv. 341 (1982) (reviewing ARTHUR R. MrLLER, MrLLER's CouRT (1982) ). In this review, Ginsburg com­ mends Professor Miller's efforts to educate the public about what the law is, how it works, what it can achieve, and finally, what it cannot accomplish. Ruth Bader Ginsburg, The Work of Professor Allan Delker Vestal, 70 lowA L. REv. 13 (1984). Ginsburg presents a short overview of the work of Professor Vestal, which highlights his writings on pre­ clusion and prior adjudication. The piece includes appendices of his work on preclusion, a listing of his federal and state cites, and a list of his writings on other topics. Lewis F. Powell, Jr. et al., In Memoriam: judge Carl McGowan, 56 GEO. WASH. L. REv. 681, 691 (1988). In a short but glowing essay, Ginsburg describes Judge McGowen, with whom she sat on the D.C. Circuit, as a judge who had won the enduring respect of the 2004] RUTH BADER GINSBURG 431 entire D.C. bench because of his intellectual acuity, common sense, and ability to reconcile opposing views. John R. Brown et al., In Memoriam: judge]. Skelly Wright, 57 GEo. WASH. L. REV. 1029 (1989). Ginsburg cites Judge Wright's heroism and dedication to implementing the law and the Constitu­ tion by detail~ng some of the outsider individuals whose positions he strove to advance in the face of society's displeasure. Ruth Bader Ginsburg, In Praise of Allan Axelrod, 41 RUTGERS L. REv. 1047 (1989). Ginsburg taught with Allan Axelrod at Rutgers and praises him as a "teacher nonpareil" in this very short piece. Id. at 1047. Edward J. Bloustein, Ruth Bader Ginsburg et al., C. Willard Heckel-In Remembrance, 41 RUTGERS L. REv. 475, 477 (1989). Counting herself fortunate to have had him as a friend, Ginsburg remembers Heckel's support of her pursuit of tenure and his flexi­ bility with her schedule when she was the parent of a newborn baby. Ruth Bader Ginsburg, In Memoriam: Albert M. Sacks, 105 HARV. L. REv. 16 (1991). This short piece focuses on the teaching skills and generous, nature of Professor Sacks. Ruth Bader Ginsburg, McGowan, Carl (1911-1987), in ENCYCLO­ PEDIA OF THE AMERICAN CONSTITUTION 326 (Leonard w. Levy et al. eds., Supp. 1992). This is a very short but highly positive essay on judge Carl McGowan, who served on the D.C. Circuit Court of Ap­ peals from 1~63 to 1987. This piece was reprinted in the second edition of the ENCYCLOPEDIA. Ruth Bader Ginsburg, McGowan, Carl (1911-1987), in ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 1707 (Leonard W. Levy et al. eds., 2d ed. 2000). Ruth Bader Ginsburg, Remarks for George Mason University School of Law Graduation (May 22, 1993), in 2 GEO. MAsoN INDEP. L. REv. 1 (1993). This is an address very similar to the remarks for California Women Lawyers noted below. l Ruth Baper Ginsburg, Remarks for American Law Institute Annual Dinner (May 19, 1994), in 38 ST. LOUIS UNIV. LJ. 881 (1994), reprinted in 7lst Annual Meeting: The American Law Insti­ tute Proceedings 324 (American Law Institute, 1994). After prais­ ing the usefulness of the Restatements (published by the American Law Institute), Ginsburg offers a brief overview of the Supreme Court's inner workings, from how reviews are granted to how opin­ ions are discussed, circulated, and written. Ruth Bader Ginsburg, Remarks at the Dedication of the Byron White United States Courthouse (Aug. 10, 1994) in 66 U. COLO. L. 432 NEW YORK CITY LAW REVIEW [Vol. 7:391

REv. 1 (1995). Here, Ginsburg sketches Justice White's early years prior to his appointment to the Court. Ruth Bader Ginsburg, Remarks for California Women Lawyers (Sept. 22, 1994), in 22 PEPP. L. REv. 1 (1994). In this short speech, Ginsburg presents an overview, complete with personal anecdotes, of how far women have advanced in the legal system. Ruth Bader Ginsburg, A Tribute to Justice Harry A. Blackmun, 43 AM. U. L. REv. 692 (1994) (reprinted in A Tribute to justice Harry A. Blackmun, 108 HARV. L. REv. 1, 4 (1994)). This short piece high­ lights how Justice Blackmun's sense of justice included gender equality. Ruth Bader Ginsburg, In Cekbration of the Life of Vincent L. Brod­ erick, 16 PACE L. REv. 191 (1995). In this homage, Ginsburg states that Judge Broderick was a "grand and brave colleague," and she specifically notes his work as head of the U.S. Judicial Conference Committee on Criminal Law in educating appellate judges about the Sentencing Reform Act of 1984. She also discusses his ability to "coax the best from counsel, by creating an atmosphere that fos­ tered cooperation and interaction-the will to solve problems rather than to compound them." Id. at 192. Ruth Bader Ginsburg, Remarks for the Second Circuit Judicial Conference Qune 15, 1996), in 170 F.R.D. 26 (1996). AsJustice for the Second Circuit, Ginsburg delivers a short speech outlining the year's Supreme Court docket for the assembled judges. Ruth Bader Ginsburg, Remarks (Apr. 29, 1997), in 1997 ANN. SuRv. AM. L. x1. This was a speech given for the dedication of the 1997 Annual Survey of American Law to Justice Ginsburg. After receiving glowing tributes from other speakers, Ginsburg playfully presents some of the unfavorable opinions that academics, political reviewers, and the general public have expressed about her work. Ruth Bader Ginsburg, Tribute to Robert A. Leflar, 50 ARK. L. REv. 407 (1997). Highlighting Professor Leflar's contributions to the subject area of conflict of laws as well as his commitment to legal education, Ginsburg offers tribute by presenting a short biography of his achievements. Ruth Bader Ginsburg, In Memoriam: William] Brennan,Jr., 111 HARV. L. REv. 3 (1997). Citing a series of civil rights and civil liber­ ties cases that Justice Brennan authored, Ginsburg describes him as a "hero of the Constitution," quoting Robert McKay. Id. at 5. Ruth Bader Ginsburg, Welcoming Remarks to the Judicial Fel­ lows Qan. 22, 1998), in 5 Sw.J.L. & TRADE AM. 3 (1998). In these remarks, Ginsburg shares a story about the actions Malvina Harlan 2004] RUTH BADER GINSBURG 433

Qustice Harlan's wife) took to help her husband finish writing his dissent in Dred Scott, which he was having difficulty completing. She describes this story as one she found while working on a project to collect stories of Justices' wives who stood solidly (but not always silently) behind their husbands. Ruth Bader Ginsburg, In Celebration of Char/,es Alan Wright, 76 TEx. L. REv. 1581 ( 1998). Ginsburg begins this article with a glow­ ing recitation, of Professor Wright's life and work and then pro­ vides a short synopsis of the articles in the symposium issue "Federal Practice and Procedure" on the work of Professor Wright. Ruth Bader Ginsburg, Remarks for Second Circuit Judicial Conference (May 29, 1998), in 180 F.R.D. 687 (1998). As Justice for the Second Circuit, Ginsburg delivers a short speech outlining the year's Supreme Court docket for the assembled judges. Ruth Bader Ginsburg, Remarks at the New York Law School Law Review Dinner (Feb. 12, 1999), in 44 N.Y.L. ScH. L. REv. 7 (2000). Here, Ginsburg offers advice and encouragement to the Law Review staff. Ruth Bader Ginsburg, Tributes to the William S. Richardson School 1 of Law on Its 25th Anniversary, 21 U. HAW. L. REv. 12, 13 (1999). As one of many Qffering tributes to the School of Law, Ginsburg, who was the school's Jurist-in-Residence, offers her congratulations and wishes for the next 25 years in this very short piece. Harold Edgar et al., In Memory of Herbert Wechsler, 100 CoLUM. L. REv. 1347, 1359 (2000). In this tribute, Ginsburg describes Wechsler's seminar on Federal Courts and the Federal System, his work on the ~odel Penal Code, his work at Nuremberg, and his brief in New York Times v. Sullivan87 as indicative of his contribu­ tions to the law and the legal system. Ruth Bader Ginsburg, In Celebration of Kenneth L. Karst, 47 UCLA L. REV~ 1179 (2000). Calling Karst's knowledge of constitu­ tional law "edcyclopedic," Ginsburg recounts his accomplishments and outlines some of the articles in the law journal's tribute issue to him. Ruth Bader Ginsburg, Charlie's Letters, 79 TEx. L. REv. 3 (2000). This is the revised version of a tribute to Charles Alan Wright delivered at the American Law Institute Reception in London, July 17, 2000. Ginsburg details correspondence with Pro­ fessor Wright to illustrate that beyond his "extraordinary scholar-

87 376 U.S. 254 (1964). 434 NEW YORK CITY LAW REVIEW [Vol. 7:391

ship and magnetic advocacy," he was the "quintessential friend." Id. at 4. Ruth Bader Ginsburg, Remarks for Women's Health Research Dinner (May 7, 2001), available at http://www.supremecourtus.gov /publicinfo/speeches/sp_05-07-0l.html. In these remarks, Gins­ burg discusses her bout with colorectal cancer. Ruth Bader Ginsburg, Foreword to SUPREME COURT DECISIONS AND WOMEN'S RIGHTS: MILESTONES TO EQUALllY (Clare Cushman ed., 2001). While agreeing that equality for minorities and women was not established by this nation's founders, Ginsburg neverthe­ less argues that the Declaration of Independence and the Bill of Rights indicate a commitment to equality and individual liberty. This commitment to individual liberty along with the Equal Protec­ tion Clause and women's suffrage combine to extend constitu­ tional rights and protections to women. This book, she says, recounts the "gradual realization" of equal justice for women. Id. at XI. Ruth Bader Ginsburg, Four Louisiana Giants in the Law, Judge Robert A. Ainsworth, Jr. Memorial Lecture at Loyola Univer­ sity New Orleans School of Law (Feb. 4, 2002), in 48 LoY. L. REv. 253 (2002), available at http://www.supremecourtus.gov/pub­ licinfo/speeches/sp_02-04-02.html. Justice Ginsburg provides a brief biography of one lawyer, Judah Benjamin, and three judges, John Minor Wisdom, J. Skelly Wright, and Alvin Rubin, all Louisi­ ana natives whom, she argues, would have appeared on Judge Ains­ worth's list of the "best among lawyers and judges." Id. at 254. Ruth Bader Ginsburg, Dinner Remarks at Southwestern Uni­ versity School of Law (Feb. 6, 2002), in 9 Sw. J.L. & TRADE AM. 1 (2002-2003). This is a short speech that highlights how the Justices spend their days, illustrating the lighter side of the Court. Ruth Bader Ginsburg, Remarks for the Celebration of 75 Years of Women's Enrollment at Columbia Law School (Oct. 19, 2002), in 102 CoLuM. L. REv. 1441 (2002). Ginsburg describes the sex discrimi­ nation litigation she undertook while at Columbia in conjunction with the ACLU and provides a short overview of the cases with per­ sonal anecdotes about the plaintiffs. Ruth Bader Ginsburg, Statement on the Death ofJustice Byron R. White, 55 STAN. L. REv. 3 (2002). In this statement, Ginsburg de­ scribes Justice White "as both Clark Kent and Superman" (quoting Justice Stewart). Id. at 4. Ruth Bader Ginsburg et al., Memories of Gerald Gunther, 55 STAN. L. REv. 659 (2002). Ginsburg tells the story of how Gunther 2004] RUTH BADER GINSBURG 435 assisted her in obtaining a clerkship at a time when federal judges did not hire women. She credits Gunther's law review article on Reed with helping to influence the path of sex discrimination litiga­ tion and praises him for his early belief in the Court's ability to extend statutes to cover those unconstitutionally excluded instead of nullifying the offending legislation entirely in equal protection cases. Ruth Bader Ginsburg, Remembering]ustice VVhite, 74 U. CoLO. L. REv. 1283 (2003). In this tribute to Justice White, Ginsburg de­ scribes his belief in judicial restraint, his commitment to stare deci­ sis, his intelligence, and above all, his compassion.

III. BooKS, BooK CHAPTERS AND LAw REvrnw ARTICLES ON OR ABOUT RUTH BADER GINSBURG A. Books and Book Chapters on or About Ginsburg While there are a number of book chapters about Ruth Bader Ginsburg and her work, there are no books for the adult reader, although a partial biography is forthcoming.ss There are, however, a number of children's books or books written for young adults that deal wit}} her life. This Bibliography includes these works in order to assi~t scholars in identifying the intended audience for these works, which often appear in bibliographies. Additionally, the children'J books are studded with Ginsburg family pictures and anecdotes that provide more personal information about Ruth Bader Ginsburg's childhood and personal life than do academic works targeted to an adult audience.

1. Books Written for the Child or Young Adult Audience ELEANOR AYER, RUTH BADER GINSBURG: FIRE AND STEEL ON THE SUPREME CouRT ( 1994). This fairly detailed biography is written for a young adult audience. It contains a brief time line as well as a short bibliography. The book also includes photographs as well as many family anecdotes that provide a familial and personable as­ pect to Ginsburg often lacking in academic pieces. LINDA BAYER, RUTH BADER GINSBURG (Women of Achieve­ ment, 1993). This book introduces Ginsburg to a young adult audi­ ence. The rather short biography has many of the same photographs found in Eleanor Ayer's work cited previously. CARMEN BREDSON, RUTH BADER GINSBURG, SUPREME COURT JUSTICE (People to Know, 1995). This is the longest book for young

SS jANE DEHART, RuTH BADER GINSBURG BEFORE THE BENCH (forthcoming 2006). 436 NEW YORK CITY LAW REVIEW [Vol. 7:391 adults. It is directed toward a middle school, or even high school, audience. It includes a short history of the Court as well as biblio­ graphic information on Ginsburg and a discussion of some of the more prominent sex discrimination cases. CHRISTOPHER HENRY, RUTH BADER GINSBURG (1994). Similar to other books aimed at a young audience, this book emphasizes Ginsburg's early life, including information about her grandpar­ ents and parents. There is also some background on her husband, Martin, including how they met and his life and interests. ROBERT ITALIA, RUTH BADER GINSBURG (Supreme Court Jus­ tices, 1994). While this work is directed at the very early school age child, it contains some information about the judicial confirmation process. BRENN JONES, LEARNING ABOUT EQUAL RIGHTS FROM THE LIFE OF RUTH BADER GINSBURG (2002). Targeting a very young audience (the book includes a glossary for terms such as "lawyer" and "grad­ uated"), it is interesting to note that this book also includes web­ sites for children to visit to find out additional information on both Ginsburg and equal rights. ]ACK L. ROBERTS, RUTH BADER GINSBURG: SUPREME COURT Jus­ TICE ( 1994). This brief biography is written for younger children and discusses the life and career of Ginsburg generally.

2. Books or Book Chapters on Ginsburg for the Academic or Scholar Judith Baer, Advocate on the Court: Ruth Bader Ginsburg and the Limits ofFormal Equality, in REHNQUIST JUSTICE: UNDERSTANDING THE CouRT DYNAMIC 216 (Earl M. Maltz ed., 2003). Looking at Gins­ burg both as a litigator as well as a judge, Baer finds that she is far more the pragmatic workhorse than the visionary innovator. Baer worries that Ginsburg's reliance on formal equality may ultimately limit women's achievement of equality. The author also provides an extensive analysis of Ginsburg's positions on other constitu­ tional issues, including the Fourth Amendment, the Establishment Clause, civil liberties, and federalism in an attempt to position Ginsburg on the liberal-conservative continuum. Joyce A. Baugh, Ruth Bader Ginsburg: "A Judge's judge and a Law­ yer's Lawyer," in SUPREME COURT JusTICES IN THE PosT-BoRK ERA: CONFIRMATION POLITICS AND JUDICIAL PERFORMANCE 61-80 (Teach­ ing Texts in Law and Politics Vol. 21, 2002). Baugh considers Gins­ burg's nomination and confirmation process, complete with an explanation of the media coverage and interest group participa- 2004] RUTH BADER GINSBURG 437 tion. She then examines Ginsburg's voting record on issues ad­ dressed in the nomination and confirmation process. While Baugh labels Ginsburg a liberal, she concedes that it is not the liberalism of Brennan and Marshall and concludes that Ginsburg is less prone to use the Court to promote social reform than other liberal justices. DAWN BRADLEY BERRY, THE 50 MosT INFLUENTIAL WoMEN rN AMERICAN LAw 215, 215-222 (1996). This book includes a short bio­ graphic profile of Ginsburg. This profile is detailed but not footnoted. JANE DEHART, RUTH BADER GINSBURG, BEFORE THE BENCH (forthcoming 2006). DeHart is currently finishing a book that fo­ cuses on Ginsburg's early life and career until 1980. DeHart exten­ sively intervieived Ginsburg and her family, as well as others who knew her, especially those who worked with her at the ACLU. De­ Hart uses Ginsburg's personal papers, which are now archived, and the papers of retired Justices before whom Ginsburg argued her many Supreme Court cases. LYNN GILBERT & GAYLEN MooRE, PARTICULAR PASSIONS: TALKS WITH WOMEN WHo HAVE SHAPED OuR TIMES 153-59 (1981). Based on taped and' edited interviews with Ginsburg, the piece is written in the first person. Ginsburg describes her reasons for going into the law, what1 galvanized her to begin working on equal rights is­ sues, and relates a few personal anecdotes about life in law school as one of the very few women law students. Stephanie B. Goldberg, The Second Woman Justice: Ruth Bader Ginsburg, in THE SUPREME CouRT AND !Ts JusTICES 304 (Jesse H. Choper ed., 2001). This short sketch first appeared in the ABA Journal and is written as a magazine article about Ginsburg soon after she was: confirmed as a Supreme Court Justice. There are many direct quotes that provide a glimpse into Ginsburg's personal and political 1views on topics such as abortion, diversity on the court, and how far women have progressed. Christopher Henry, Ruth Bader Ginsburg, in THE JUSTICES OF THE UNITED STATES SUPREME COURT: THEIR LIVES AND Mi\)OR OPIN­ IONS 1859 (Leon Friedman & Fred L. Israel eds., 1997). While the piece begins ~ith the usual general overview of Ginsburg's life, it carefully examines her litigation strategies and skills as reflected in her sex discrimination victories during the 1970s. Henry scrutinizes several of Ginsburg's opinions from her time on the D.C. Circuit. He is one of the few authors to claim that she is a judicial activist, although he tempers that position with an acknowledgment of her ' 438 NEW YORK CITY LAW REVIEW [Vol. 7:391

many alliances with conservative judges and her belief in the im­ portance of judicial independence. LINDA K. KERBER, No CONSTITUTIONAL RIGHT TO BE LADIES: WOMEN AND THE OBLIGATIONS OF CITIZENSHIP 199-210 (1998). Ginsburg is mentioned often in this general work devoted to the status of women in constitutional law. The pages indicated are those in which Kerber discusses Ginsburg's litigation strategies dur­ ing her tenure at the Women's Rights Project. DIANA KLEBANOW & FRANKLIN L. JONAS, PEOPLE'S LAWYERS: CRUSADERS FORJUSTICE IN AMERICAN HISTORY 349 (2003). This is a very detailed chapter on Ginsburg that provides information on her early life and education not available in other sources. The chapter is extensively footnoted and includes a time line of Gins­ burg's life and a short annotated bibliography. The authors delve into her work with the ACLU Women's Rights Project and provide a description and analysis of the major sex discrimination cases handled by Ginsburg during the 1970s. The piece also includes a description of her work as a justice, including her opinions in VMI and Bush v. Gore. 89 RoY M. MERSKY ET AL., RUTH BADER GINSBURG (The Supreme Court of the United States: Hearings and Reports of Successful and Unsuccessful Nominations of Supreme Court Justices by the Senate Judiciary Committee 1916-1993, Vols. 18-18A, 1995). These volumes focus on the nomination of Ruth Bader Ginsburg. They include reprints of Presidential statements on the nomination, re­ prints from the Congressional Record statements on the nomina­ tion by legislators, and the Senate Judiciary Committee Hearing transcripts. Also included are selected reprints of Ginsburg's writ­ ings and a selection of her opinions from the D.C. Circuit Court of Appeals. There is also a bibliography of newspaper and magazine articles on the nomination. Barbara A. Perry, Ruth Bader Ginsburg, in "THE SUPREMES": ES­ SAYS ON THE CURRENT JUSTICES OF THE SUPREME COURT OF THE UNITED STATES 115-125 (Teaching Texts in Law and Politics Vol. 6 1999). Perry provides a short biography that focuses on Ginsburg's years as a litigator and several of her Supreme Court opinions. She finds that while Ginsburg's opinions may garner headlines at other times, her reasoning is much less sweeping than those of other jus­ tices. Perry concludes that Ginsburg is wedded to incrementalism in the rule of law.

89 518 U.S. 515 (1996); 531 U.S. 98 (2000). 2004] RUTH BADER GINSBURG 439

Edith Lampson Roberts, Ruth Bader Ginsburg, in THE SuPREME COURT JUSTICES: ILLUSTRATED BIOGRAPHIES 1789-1995, 531 (Clare Cushman ed., 2d ed. 1995). This five-page biography provides a synopsis of Ginsburg's early life and time in law school. It then fo­ cuses on her sex discrimination litigation and judicial career, in­ cluding a disc,ussion of her appointment to the Supreme Court. ELINOR PORTER SWIGER, WOMEN LAWYERS AT WORK 50-66 (1978). Publi~ed prior to Ginsburg's appointment to the federal bench, this piece focuses on her work at the Women's Right's Pro­ ject as well as her law school career. There is more detail about Ginsburg's children and family life than in other works. In particu­ lar, Ginsburg's daughter, Jane Ginsburg, is extensively quoted and discussed. ELIZABETH VRATO, THE COUNSELORS: CONVERSATIONS WITH 18 COURAGEOUS WOMEN WHO HAVE CHANGED THE WORLD 175-185 (2002). This book includes a brief overview of Ginsburg's life that focuses on her legal career. It is supplemented by numerous quotes from the author's conversations with Ginsburg that provide some interesting personal anecdotes. Natalie Wexler & Diedre von Dornum, Ruth Bader Ginsburg: From Litigator to justice, in SUPREME COURT DECISIONS AND WoMEN's RIGHTS: MILESTONES TO EQUALI1Y 252 (Clare Cushman ed., 2001). This is a short biographical sketch that provides a basic overview of Ginsburg's life, including references to cases she handled at the Women's Rights Project as well as some of her Supreme Court opinions. The piece does not include footnotes and provides lim­ ited bibliographic materials.

B. Law Review Articl.es on or About Ginsburg This sect,on lists law review articles that focus on Ginsburg spe­ cifically, inclu~ing her various roles in sex discrimination cases, her judicial philosophy, her approach to particular constitutional or doctrinal issues, and her impact on the Court and the legal profes­ sion. Excluded are pieces in which, although she might be men­ tioned frequently, the article's analysis does not venture beyond her function as the author of a particular opinion. In addition, this section is limited to law review scholarship and does not include articles from the popular press. 90 Eric I. Abraham, Comment, justice Ginsburg and the Injury in

90 For a significant selection of articles from the popular media, see Rov M. MERSKY ET AL., RUTH BADER GINSBURG (The Supreme Court of the United States: Hearings and Reports of Successful and Unsuccessful Nominations of Supreme Court Justices 440 NEW YORK CITY LAW REVIEW [Vol. 7:391

Fact Element of Standing, 25 SETON HALL L. REv. 267 (1994). Prior to Ginsburg's appointment, the Court issued two rulings that made it difficult for plaintiffs seeking to redress environmental harms to satisfy standing requirements. The author discusses those two cases, and then examines several of Ginsburg's Circuit decisions on environmental standing. Finally, the author argues that these deci­ sions reflect a willingness on Ginsburg's part to embrace less strin­ gent standing guidelines, allowing such cases to be decided on the merits. Samuel R. Bagenstos, justice Ginsburg and the judicial Role in Ex­ panding "We the People": The Disability Rights Cases, 104 CoLUM. L. REv. 49 (2004). Examining recent Supreme Court cases, the author focuses on Ginsburg's opinions, including concurrences, and her majority opinion in Olmsted v. L.C.,91 regarding disability rights. He argues that Ginsburg, more than any other justice, understands that the disabled have to be protected from society's attitudes and practices, and not that they have to be given special assistance. Claiming that Olmstead is the disability rights movement's Brown v. Board of Education, Bagenstos contends that Ginsburg continues to expand the notion of "We the People." Rebecca Barnhart & Deborah Zalesne, Twin Pillars ofjudicial Philosophy: The Impact of the Ginsburg Collegiality and Gender Discrimi­ nation Principles on Her Separate Opinions Involving Gender Discrimina­ tion, 7 N.Y. Cnv L. REv. 275 (2004). The authors juxtapose two of Ginsburg's commitments: her judicial philosophy on collegiality and her deep loyalty to advancing women's legal rights. After an examination of gender discrimination cases decided by the Court in the last decade, the article concludes that Ginsburg has deftly managed to navigate the fine line between her twin passions, even as she has been assertive in writing separate opinions, because with only one exception, her opinions have been temperate and empha­ sized agreements. Joyce Ann Baugh et al., Justice Ruth Bader Ginsburg: A Prelimi­ nary Assessment, 26 U. ToL. L. REv. 1 (1994). The article examines whether in her first term, Ginsburg had lived up to the predictions that she would help re-energize the liberal base of the Court. The authors analyze the business, criminal justice, and civil rights opin­ ions issued by the Court during this period. Using both statistical as well as analytic evidence, they find that Ginsburg is a judicial mod-

by the Senate Judiciary Committee 1916-1993, Vols. 18-lSA, 1995), at 1557-1613 (1995). 9 1 527 U.S. 581 (1999). 2004] RUTH BADER GINSBURG 441 erate, voting most often with the center of the Court, that her opin­ ions are narrowly drawn, and that she is unlikely to move the Court in bold new directions. David Cowan Bayne, SJ., Insider Trading: The Misappropriation Theory Ignoredi Ginsburg's O'Hagan, 53 U. MIAMI L. REv. 1 (1998). This piece is the first of a two-part examination of United Stales v. O'Hagan,92 a

n2 521 U.S. 642 (1997). 442 NEW YORK CITY LAW REVIEW [Vol. 7:391 falters when addressing reproductive rights issues where difference is evident. Michael James Confusione, Note, Justice Ruth Bader Ginsburg and Justice Thurgood Marshall: A Misleading Comparison, 26 RUTGERS LJ. 887 (1995). Po in ting to Marshall's willingness to accept reme­ dial racial legislation and Ginsburg's fear that even preferential leg­ islation based on gender risks reinforces outmoded stereotypes and undermines equality arguments, the author argues that any claim that Ginsburg is the Thurgood Marshall of gender equality law is misleading. Ruth B. Cowan, Women's Rights Through Litigation: An Examina­ tion of the American Civil Liberties Union Women's Rights Project, 1971- 1976, 8 CoLUM. HuM. RTs. L. REv. 373 (1976). While not explicitly focused on Ginsburg, the article details the ACLU's Women's Rights Project during the time Ginsburg was its co-director and was litigating the early sex discrimination cases. The article examines the litigation strategies and publicity campaigns of which Ginsburg was a part, and the Project's coordination with other groups. Jerome McCristal Culp, Jr., An Open Letter From One Black Scholar to justice Ruth Bader Ginsburg: Or, How Not to Become Justice Sandra Day O'Connor, 1 DuKE]. GENDER L. & PoL'Y 21 (1994). In this piece, composed as an "open letter," Culp articulates his fear that Ginsburg's belief in gradualism, expressed in part by her crit­ iques of Roe v. Wade, will mean she will succumb to a belief in the racial status quo. W. Kent Davis, Answering justice Ginsburg's Charge That the Con­ stitution Is "Skimpy" in Comparison to Our International Neighbors: A Comparison of Fundamental Rights in American and Foreign Law, 39 S. TEX. L. REv. 951 (1998). The author argues that while social and economic rights may be enshrined in other constitutions, they are often merely aspirational with little real enforcement. The piece describes several ways that foreign constitutions differ from the U.S. Constitution in how they approach and embrace individual rights, and it faults Ginsburg for not realizing the limits of attempt­ ing comparative law. R. Darcy & Jenny Sanbrano, Oklahoma in the Development of Equal Rights: The ERA, 3.2 % Beer, Juvenile justice and Craig v. Boren, 22 OKLA. CrTY U. L. REv. 1009, 1037-49 (1997). The article follows Craig from its inception and includes litigation strategy discussions between Ginsburg and local counsel. While only a portion of the article concerns Ginsburg (footnotes 99-136 and accompanying text), the authors had access to letters between Ginsburg and the 2004] RUTH BADER GINSBURG 443 other attorneys handling the case and they use them to elaborate the strategy involved in litigating Craig. The piece also provides a historical context to the case as it discusses how Oklahoma was the first state to defeat the E.R.A. during the time when Craigwas being litigated. Toni J. Ehington et al., Comment, justice Ruth Bader Ginsburg and Gender Discrimination, 20 U. HAW. L. REv. 699 (1998). This ex­ tensive article traces Ginsburg's impact on sex discrimination law as an attorney, law professor,judge, and Supreme CourtJustice. It also examines VM/93 and the potential impact that Ginsburg's re­ writing of the gender discrimination standard of review may have on a variety of future discrimination cases, including sexual orien­ tation discrimination cases. Toni]. Ellington, Comment, Ruth Bader Ginsburg and john Mar­ shall Harlan: A justice and Her Hero, 20 U. HAW. L. REv. 797 (1998). Ginsburg called Justice Harlan one of her heroes during her con­ firmation hearing. Id. at 797. This article finds that though Harlan and Ginsburg have differing political views, their judicial style is extremely similar with respect to an abiding belief in stare decisis and judicial r~straint. The author also points to bothJustices' care­ ful use of concurring and dissenting opinions to lay the ground­ work for future decisions. Edward A. Fallone, Neither Liberal Nor Laissez Faire: A. Prediction of justice Ginsburg's Approach to Business Law Issues, 1993 CoLUM. Bus. L. REv. 279. Analyzing Ginsburg's past opinions on business and regulatory issues, the author posits that she will tend to avoid expansive application of regulations restricting business, that she will generally respect business activity geared toward efficiency, and will tend to defer to agency decision-making. Shira Galinsky, Comment, Returning the Language of Fairness to Equal Protection: Justice Ruth Bader Ginsburg's Affirmative Action juris­ prudence in Grutter and Gratz and Beyond, 7 N.Y. CITY L. REv. 357 (2004). In this student piece, the author analyzes Justice Gins­ burg's separate opinions in Grutter v. Bollinger94 and Gratz v. Bollin­ ger,95 the Michigan affirmative action cases decided by the Court in 2003, and concludes that Ginsburg's "anti-formalism position" lays a foundation for a less rigid notion of human rights. Elizabeth E. Gillman &Joseph M. Micheletti, justice Ruth Bader

93 U.S. v. Virginia, 518 U.S. 515 (1996). 94 Grntter v. Bollinger, 539 U.S. 306 (2003). 95 Gratz v. Bollinger, 539 U.S. 244 (2003). 444 NEW YORK CITY LAW REVIEW [Vol. 7:391

Ginsburg, 3 SETON HALL CONST. LJ. 657 (1993). This essay is a brief biography of Ginsburg's life and career. Daniel R. Gordon, Revisiting Erie, Guaranty Trust, and Gasper­ ini: The Ro/,e of Jewish Social History in Fashioning Modern American Federalism, 26 SEATTLE U. L. REv. 213 (2002). Using the 1996 case Gasperini v. Ctr. for Humanities, Inc. 96 as an illustration, the author argues that Ginsburg, in applying state law when there was federal law on point, was, like Justices Frankfurter and Brandeis before her, "reflect[ing] a long Jewish commitment to localism." Id. at 240. Linda Greenhouse, Learning to Listen to Ruth Bader Ginsburg, 7 N.Y. CITY L. REv. 213 (2004). Noted New York Times Supreme Court reporter, Greenhouse focuses on the effect Ginsburg's litigation had on Justice Harry Blackmun, whose voluminous papers became available to the public in 2004. Gerald Gunther, Ruth Bader Ginsburg: A Personal, Very Fond Trib­ ute, 20 U. HAW. L. REv. 583 (1998). The Stanford Law School pro­ fessor, who was instrumental in helping Ginsburg obtain her first clerkship, offers a short, affectionate tribute based on several de­ cades of friendship. Malvina Halberstam, Ruth Bader Ginsburg: The First Jewish Wo­ man on the United States Supreme Court, 19 CARDOZO L. REv. 1441 (1998), originally in 1 JEWISH WoMEN IN AMERICA: AN HisTORICAL ENCYCLOPEDIA 515 (Paula E. Hyman & Deborah Dash Moore eds., 1997). This article provides details concerning Ginsburg's child­ hood, college years, and family life that rarely appear in other law review articles. Sidney Harring &Jeffrey L. Kirchmeier, Scrupulous in Applying the Law: Justice Ruth Bader Ginsburg and Capital Punishment, 7 N .Y. CrIY L. REv. 241 (2004). The authors reflect upon the limited pub­ lished work relating to Ginsburg's death penalty jurisprudence, in­ cluding the role that capital punishment played in her confirmation process, her votes and opinions upholding or not up­ holding death sentences, and the three capital punishment cases in which she authored the majority opinion for the Court. The article concludes that while Ginsburg has not articulated an unequivocal position, she remains concerned that capital punishment judg­ ments be highly reliable and the process unquestionably fair. Benjamin Kaplan, Ruth Bader Ginsburg and Anders Bruzelius's Civil Procedure in Sweden, 79 HARv. L. REv. 460 (1965) (book re-

96 518 U.S. 415 (1996). 2004] RUTH BADER GINSBURG 445

view). Written by the then-Royal Professor of Law at Harvard, the review finds Civil Procedure in Sweden to be a work that can take "its place in that ~mall library of English-language writings about for­ eign procedure that can claim intellectual distinction." Id. at 461. Kenneth L. Karst, The Revival of Forward-Looking Affirmative Ac­ tion, 104 CoLGM. L. REV. 60 (2004). This article reviews the Su­ preme Court's recent affirmative-action decisions, and focuses on Ginsburg's position throughout the line of cases. Kenneth L. Karst, "The Way Women Are": Some Notes in the Mar­ gi,n for Ruth Bader Ginsburg, 20 U. HAW. L. REv. 619 (1998). The author describes the effect of the VMI decision97 on the institute itself, describing the steps the school has taken in preparation for admitting women and the likely positive effect integration will have on the academy. Herma Hill Kay, Ruth Bader Ginsburg, Professor of Law, 104 CoLUM. L. REv. 1 (2004). This article provides a detailed biography of Ginsburg's years in the academy, from her early years as a stu­ dent, her interest in federal jurisdiction and civil procedure, her entry into comparative law with its focus on Sweden, through her sex discrimination litigation undertaken while she was a professor at Columbia. Mei-Fei I{uo & Kai Wang, Comment, When Is an Innovation in Order?: Justice Bader Ruth Ginsburg and Stare Decisis, 20 U. HAw. L. REv. 835 ( 19~8). Analyzing several major opinions that have been issued since Ginsburg joined the Court, this article focuses on the doctrine of stare decisis and the influence it has on Ginsburg's ju­ dicial decision-making process. Arguing that Ginsburg is indeed a judicial moderate, the authors claim that she is a thoughtful jurist who balances .her high regard for precedent with a practical reali­ zation that such a practice is not absolute. 1 James A. 1Kushner, Introducing Ruth Bader Ginsburg and Predict­ ing the Performance of a Ginsburg Court, 32 Sw. U. L. REv. 181 (2003). After a glowing biographical sketch ofJustice Ginsburg, the author ....,., examines her' dissents to speculate on the state of the law under a "Ginsburg Court." Lenora M. Lapidus, 30 Years of Women's Rights Litigation: An Evolving Constitutional Standard of Review, Remarks Before the 30th Anniversary of the Women's Rights Law Reporter (no date available), in :23 WOMEN'S RTs. L. REP. 237 (2002). This is a short speech given on a panel entitled ·"Legal Struggles for Women's

97 U.S. v. Virginia, 518 U.S. 515 (1996). 446 NEW YORK CITY LAW REVIEW [Vol. 7:391

Rights: Past, Present, and Future" by Lapidus, the director of the ACLU Women's Rights Project in 2002. In her remarks, Lapidus credits Ginsburg with starting the Project in 1971 and guiding it through its first ten years. She also provides an overview of Gins­ burg's earlier cases and an analysis of how Ginsburg described these cases in her own writings during the 1970s. Deborah L. Markowitz, In Pursuit ofEquality: One Woman's Work to Change the Law, 14 WOMEN'S RTs. L. REP. 335 (1992). Drawing on extensive interviews with then:Judge Ginsburg, as well as notes and letters from Ginsburg's private files, this article traces Ginsburg's participation in equal protection challenges to sex discrimination between 1971 and 1977. Focusing on individual cases, the author describes how the cases were chosen, why specific legal strategies were implemented, and how the cases attempted to build on one another. M. Isabel Medina, Real Difference and Stereotypes-Two Visions of Gender, Citizenship, and International Law, 7 N.Y. CnY L. REv. 315 (2004). In this article, the author analyzes the continuing problem of gender discrimination in the context of citizenship in American law. The article focuses on two of the most recent decisions explor­ ing the constitutionality of explicit sex discrimination in immigra­ tion law, one of which was authored by Justice Ginsburg. The author also discusses Ginsburg's use of international law in the de­ velopment of domestic constitutional law as an appropriate model to examine gender discrimination and citizenship. Deborah Jones Merritt, Hearing the Voices of Individual Women and Men: Justice Ruth Bader Ginsburg, 20 U. HAW. L. REv. 635 ( 1998). The author uses five opinions issued by Ginsburg (majority, dissent and concurrences) to illustrate Ginsburg's refusal to accept stere­ otyping, her commitment to equality, and her belief in the impor­ tance of focusing on the individual claimant. Deborah Jones Merritt & David M. Lieberman, Ruth Bader Ginsburg's jurisprudence of Opportunity and Equality, 104 CoLUM. L. REv. 39 (2004). This article focuses on Ginsburg's Supreme Court opinions, primarily in the area of gender equality. The authors find that concerns about equality, opportunity, and individual lib­ erty are predominant, even when those factors create an outcome where "women do not always win." Id. at 43. Henry Paul Monaghan, Doing Originalism, 104 CoLUM. L. REv. 32 (2004). In this short piece, Monaghan uses a recent ERISA case, 2004] RUTH BADER GINSBURG 447

~ Great-West,98 tb discuss the differences between the approaches of Justices Ginsburg and Scalia to originalism. He argues that Gins­ burg's process of historically constrained evolution, looks for the "central purposes of the relevant constitutional provision and tries to apply it in a vastly different world." Id. at 35. Melanie K. Morris, Ruth Bader Ginsburg and Gender Equality: A Reassessment of Her Contribution, 9 CARDOZO WoMEN's LJ. I (2002). This piece credits Ginsburg with making incremental steps toward the advance~ent of gender equality in VMI99 by finding that "sub­ stantive comparability" in schools was not adequate. The author claims this is yet another example of Ginsburg's effective use of an incremental approach to achieving equality and suggests that this has been Ginsburg's philosophy throughout her career. Karen O'.Conner & Barbara Palmer, The Clinton Clones: Gins­ burg, Breyer an,d the Clinton Legacy, 84JuDICATURE 262 (2001). Exam­ ining the Clinton legacy on the Supreme Court, the authors outline exten~ive similarities between Ginsburg and Breyer. Both are described as noncontroversial individuals with extensive judi­ cial experience whose prior judicial records reflect judicial moder­ ation. The article effectively highlights the political background of the Ginsburg nomination and provides a contemporary legal his­ tory. The piece also describes five opinions Ginsburg has authored that the authors argue are "well on their way to being described as 'landmark.'" Id. at 267-68. Carey Olney, Better Bitch than Mouse: Ruth Bader Ginsburg, Femi­ nism, and VMI, 9 BUFF. WoMEN's LJ. 97 (2000-2001). In a wide­ ranging article, Olney defines Ginsburg as an egalitarian feminist whose litigatibn and judicial philosophy indicate a preference for slow change in the law. Olney focuses on VMI and its "intermediate scrutiny plus" test and presents a survey of federal cases involving gender discrimination to show how lower courts are interpreting and applying 'VMI. She concludes that the decision has sown more confusion than clarity but predicts that VM!s legacy will provide future leverage for gender discrimination claims. Barbara A. Perry & Henry J. Abraham, A 'Representative' Supreme Court? The Thomas, Ginsburg and Breyer Appointments, 81 JUDICATURE 158 (1998). The authors examine the Thomas, Ginsburg, and Breyer appointments to try and determine what, if any, impact their minority status (race, gender, religion) had on their appoint­ ments. In focusing on Ginsburg, they argue that while she was not

98 Great-West ~ife & Annuity Ins. Co. v. Knudson, 534 U.S. 204 (2002). 99 U.S. v. Virginia, 518 U.S. 515 (1996). 448 NEW YORK CI1Y LAW REVIEW [Vol. 7:391 appointed solely based on gender, as Clinton's first choices (Mario Cuomo and Richard Riley who took themselves out of considera­ tion) were male, but was appointed in part because of her gender discrimination litigation and feminism. Carol Pressman, The House That Ruth Built: Justice Ruth Bader Ginsburg, Genderandjustice, 14 N.Y.L. ScH.J. HuM. RTs. 311 (1997). The article traces Ginsburg's legal career through the lens of her fight for gender equality. Laura Krugman Ray, justice Ginsburg and the Middle Way, 68 BROOK. L. REv. 629 (2003). Examining Ginsburg's majority opin­ ions, dissents, and concurrences during her tenure on the Su­ preme Court, the author seeks to determine how her stated judicial philosophy of moderation, collegiality, and respect for pre­ cedent infuse her writings. The author concludes that Ginsburg's writings precisely reflect her judicial philosophy and that she can be accurately labeled a judicial moderate. Edith Lampson Roberts, Tribute to Justice Ruth Bader Ginsburg, 20 U. HAW. L. REv. 595 (1998). Written by a former clerk ofJustice Ginsburg, this short piece praises the Justice's attention to detail, respect for the views of her colleagues, and clarity of expression. William G. Ross, The Supreme Court Appointment Process: A Search for Synthesis, 57 ALs. L. REv. 993 (1994). This piece is not directly about Justice Ginsburg, but it frequently uses Justice Ginsburg's confirmation process as an example. It thus proves to be very in­ formative about Ginsburg's appointment to the Supreme Court. David L. Shapiro, Justice Ginsburg's First Decade: Some Thoughts About Her Contributions in the Fields of Procedure and jurisdiction, 104 CoLUM. L. REv. 21 (2004). Examining a number of Ginsburg's opinions, some of which address procedure and jurisdiction, the author finds that they evince a high level of subject-specific knowl­ edge, a pragmatic approach that tailors the decision to the facts, and shows an admirable amount of judicial restraint. J. Stratton Shartel, Ginsburg's Opinions Reveal Willingness to Grant Access to Litigants, 7 No. 8 INSIDE LrTIG. 1 (1993). Examining several of Ginsburg's Circuit Court opinions on justiciability and standing, the author concludes that Ginsburg is willing to elevate substance over form in granting access to litigants. Christopher M. Shields, Note, Carlisle v. Consolidated Rail Corp. and Justice Ginsburg's Dissent: Striking an Equitable Compromise Between the Interests of Labor and Management Regarding FELA Liability for Work-Related Stress, 39 VILL. L. REv. 197 (1994). This piece char- 2004] RUFH BADER GINSBURG 449 acterizes Ginspurg's dissent in Consolidated Rail Corp. v. Gottshall! 00 as compelling, and discusses her reliance on the Third Circuit companion case, Carlisle v. Consolidated Rail Corp. 101 Scott M. Smiler, Note, justice Ruth Bader Ginsburg and the Vir­ ginia Military Institute: A Culmination of Strategic Success, 4 CARnozo WoMEN's LJ. 541 (1998). This note argues that Ginsburg's legal career prior to becoming a judge revolved around seeking the highest level Of scrutiny for gender-based classifications. The piece then tracks Ginsburg's decisions once on the bench, specifically focusing on VMI, 102 and concludes that she is still attempting to move the Court toward embracing the strict scrutiny standard for sex classifications. Christopher E. Smith et al., The First-Term Performance ofjustice Ruth Bader Ginsburg, 78 JUDICATURE 74 (1994). Analyzing voting patterns, judicial alignments, five-to-four decisions, opinion author­ ship, authorship of "important" decisions, and her positions on the several women's rights cases before the Court in her first year, the authors find that Ginsburg, "did not require any period of adjust­ ment" on the court, "is not intent on ad;vancing a broad women's rights agenda," and can be firmly fixed in the middle of the Court. Id. at 80. Sheila M. Smith, Comment, justice Ruth Bader Ginsburg and Sex­ ual Harassment Law: Will the Second Female Supreme Court justice Be­ come the Court's Women's Rights Champion?, 63 U. C1N. L. REv. 1893 ( 1995). This Comment posits that Justice Ginsburg's judicial phi­ losophy, which prioritizes stare decisis, judicial economy, and col­ legiality will prevent her from advocating major doctrinal changes in the area of sexual harassment law. However, it also argues that Ginsburg's belief in gender equality will positively affect the devel­ opment of law in this area. Michael E. Solimine & Susan E. Wheatley, Rethinking Feminist judging, 70 IND. LJ. 891 (1995). This article seeks to evaluate the claim that female judges approach cases and make decisions in a distinctly diffe,rent way from male judges. Part II of the article spe­ cifically examines the opinions of O'Connor and Ginsburg during the 1993 Term, finding that the amount of divergence in their po­ sitions during the term calls into question any claim of a uniquely female style of judging.

100 512 U.S. 532 (1994). 101 990 F.2d 901(3d Cir. 1993), rev'd sub nom. Consol. Rail Corp. v. Gottshall, 512 U.S. 532 (1994). I 102 U.S. v. Virginia, 518 U.S. 515 (1996). 450 NEW YORK CITY LAW REVIEW [Vol. 7:391

Fred Strebeigh, Standard Bearer, LEGAL A.FF., Oct. 2003, at 37. While giving a brief overview of Ginsburg's life, this piece focuses on the litigation of Frontiero. 103 It concentrates on Ginsburg's advo­ cacy of the application of strict scrutiny for sex classifications and considers the divergent arguments in the briefs, Ginsburg's per­ formance at oral argument, and the Court's drafting of the opin­ ions and the standard selected. Nadine Strossen, Remarks, Introduction of justice Ruth Bader Ginsburg, 44 N.Y.L. ScH. L. REV. 1 (2000). Introducing the justice during a New York Law School law review dinner, Strossen shares personal anecdotes to describe Ginsburg as a warm, caring, ap­ proachable woman who goes out of her way to encourage young lawyers. Mary-Christine Sungaila, Nguyen v. INS and Sex Stereotyping in Citizenship Laws: Building on the Equal Protection Legacy of Ruth Bader Ginsburg, IO S. CAL. REv. L. & WoMEN's STUD. 293 (2001). The au­ thor provides a short overview of sex discrimination in the context of the equal protection doctrine, highlighting Ginsburg's participa­ tion in the doctrinal development. The article then examines Nguyen: the arguments, briefs, Ginsburg's participation at oral ar­ gument, the decision, and the dissent. Joan R. Tarpley, An Open Thank-you Note to Justice Ruth Bader Ginsburg for Her Spirit of Belonging, 24 WoMEN's RTs. L. REP. 1 (2002). This is a short piece describing how Ginsburg's sense of gender equality and trust in the judicial process have guided her legal career. Amy Walsh, Comment, Ruth Bader Ginsburg: Extending the Con­ stitution, 32 J. MARsHALL L. REv. 197 (1998). This student work traces Ginsburg's impact on gender discrimination cases from those she litigated in the 1970s to her opinion in VMI. The author concludes that Ginsburg's work has fostered extraordinary change in the area of sex discrimination. Susan H. Williams & David C. Williams, Sense and Sensibility: Justice Ruth Bader Ginsburg's Mentoring Style as a Blend of Rigor and Compassion, 20 U. HAW. L. REV. 589 (1998). The authors, former clerks to then:Judge Ginsburg, describe her as an active and caring mentor who balances analytic rigor and emotional warmth. They also describe an intellectual discipline which contributed to the high esteem in which Ginsburg was held by both judges and lawyers.

103 Frontiero v. Richardson, 411 U.S. 71 (1971). 2004] RUTH BADER GINSBURG 451

Elijah Yip & Eric K. Yamamoto, Justice Ruth Bader Ginsburg's Ju­ risprudence of Process and Procedure, 20 U. HAW. L. REv. 647 (1998). Finding that the themes of litigant access, court efficiency, and ju­ dicial integrity infuse Ginsburg's jurisprudence and scholarship, the authors examine these themes in procedurally complex class action cases. First Row: Prof. Andrea McCardle, Prof. Ruthann Robson, Carolyn Coffey,Justice Ruth Bader Ginsburg, Julie Graves Second Row: Shira Galinsky, Ellen Magid, Helen Ahn, Alecia Smith, Donna Chiu, Sarah Eisenberg Third Row: Rita Verga, Rebecca Praus, Nada Maalouf, Kaila Eisenkraft, Sosimo Fabian, Donna Tapellini, Evelyn Maldonado, Robin Burgess, Alison Ageyeva, Elisa Fischer, Hollis Pfitsch, Silvia Liu, Rebecca Stegman, Lul l\ledrano Fourth Row: John Campbell, Fumiko Ikeshiro, Jaimee Lynn Nelsen, Stacy Ann Suckoo, Sandra Smith, Elizabeth Ramsey, Brian Cifuentes, Michael Davidov, Maria l\laranion Kraus, Erin Stanton, Gregory Shanna-Holt