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Ruth Bader Ginsburg and the Aclu Women’S Rights Project

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© Copyright 2002, Texas Journal of Women and the Law Cite as: 11 TEX. J. WOMEN & L. 157 Texas Journal of Women and the Law Volume 11 Articles RAISING THE BAR: RUTH BADER GINSBURG AND THE ACLU WOMEN’S RIGHTS PROJECT Amy Leigh Campbell∗ I. Introduction.....................................................................................158 II. “A Woman, a Mother, and a Jew” ..................................................160 III. Genesis of the ACLU Women’s Rights Project .............................163 IV. Forward Movement.........................................................................168 A. The Grandmother Brief ...........................................................168 B. Making the Case for Intermediate Scrutiny.............................179 C. One Vote Shy of Victory: Frontiero v. Richardson..................180 V. Line Holding and Retrenchment.....................................................196 A. “The Fly in the Ointment”: Kahn v. Shevin ............................196 B. The “Pregnant Problem” ........................................................209 ∗ Affiliate Support Manager for NARAL Pro-Choice America, B.S. from Sweet Briar College, M.A. from the University of Virginia. I extend my love and gratitude to those who supported me throughout this process. In addition to my family, without whom I would not have an insatiable appetite for learning, several friends and mentors deserve mention. Cordel Faulk, Becca Jackson, Steve Bragaw, Ned Moomaw, Mark Harvey, and Henry Abraham are blessings, and I am in their debt. I am also grateful for the group of women outside my mother and grandmothers who adopted me and continue to help me navigate my professional life. Barbara Perry and Sharon Davie, in particular, have greatly influenced my life. I applaud the staff members of the Manuscripts Division of the Library of Congress. They*- are an impressive group, especially Janice Ruth, who guided me through the early days of research. She was instrumental in helping me gain access to materials in the private collections of Justices Brennan and Douglas, which aided my research enormously. Finally, I extend my heartfelt appreciation to Justice Ginsburg herself, whose courage is an inspiration to my generation. The opportunity to pursue this line of research was an unparalleled privilege in my life. 157 CAMPBELL FINAL2 4/28/2003 12:36 PM 158 Texas Journal of Women and the Law [Vol. 11:157 VI. Back on Track.................................................................................216 A. Women as Jurors: Overturning Hoyt v. Florida .....................217 B. “A case near and dear to my heart”: Weinberger v. Wiesenfeld................................................................................220 C. Further Social Security Inequalities: The Califano Cases ......226 D. Craig v. Boren: Six Solid Votes for a Middle Tier ..................233 VII. Conclusion ......................................................................................239 VIII. Appendix I: Chronology..................................................................242 I. Introduction This article will define the contribution of Ruth Bader Ginsburg to American constitutional law through her efforts as professor, lawyer, and women’s rights advocate. The research focuses primarily on the years 1971 to 1980, during which time Ginsburg founded and was general counsel to the American Civil Liberties Union Women’s Rights Project. Although her activities covered a broad range during those years, the concentration is on the litigation strategies she developed and employed in her roles as amicus curiae (hereinafter amicus), co-counsel, and lead counsel before the United States Supreme Court. From 1971 to 1980, Ginsburg participated in thirty-four cases. The majority of these are explored herein, with landmark cases examined in greater detail. The construction of the briefs in early cases is explored in particular detail as these arguments illustrate the unique intellectual analysis Ginsburg incorporated into her successful litigation strategy. Her method of taking extra-legal factors into account in her legal arguments is a hallmark of her strategy. In addition, her keen instinct, combined with meticulous research and preparation, allowed her to target the Justices psychologically. The primary source of information for this article was archival research conducted using the private papers of now Justice Ginsburg. The collection was donated in September 1998 and is housed in the Manuscripts Division of the Library of Congress. The collection spans the years 1946 to 1992, with the bulk concentrated in the period 1972 to 1980. The majority of the collection consists of papers documenting Ginsburg’s work as an advocate for women’s rights, particularly through her speeches, writings, and other documentation of her efforts as general counsel to the Women’s Rights Project. The papers comprise three categories: the American Civil Liberties Union file, the Speeches and Writings file, and the Miscellany file. The ACLU file, covering 1967 to 1980, composes nearly half the collection. The files include correspondence and memoranda, primarily between CAMPBELL FINAL2 4/28/2003 12:36 PM 2002] Raising the Bar 159 Ginsburg and clients, lawyers, clerks, and ACLU colleagues, as well as an array of legal papers such as opinions, orders, briefs, and motions. The Speeches and Writings file, spanning 1967 to 1980, consists chiefly of Ginsburg’s speeches and articles. The speeches fall into two main categories. Those in the first set were delivered at conferences and meetings of women’s rights groups and provide an interesting look at how Ginsburg viewed the progress of her litigation strategy. The speeches in the second set document Ginsburg’s effort as a proponent for the passage of the Equal Rights Amendment (ERA) and include various statements before numerous state legislatures during the ratification period. The Miscellany file, covering 1946 to 1992, includes a truly miscellaneous collection of notes on ERA advocacy strategy, drafts of academic papers, and personal correspondence. Secondary sources for this article included books and articles about judicial decision making and strategic interaction on the Supreme Court. This information was valuable in determining what was publicly known about the Justices’ preferences when cases arrived at the Supreme Court. This created an avenue for speculation about the factors Ginsburg considered in formulating her litigation strategy. For example, in The Choices Justices Make,1 Lee Epstein and Jack Knight detail Justice Brennan’s strategic actions in writing the opinion for the Court in Frontiero v. Richardson.2 Memoranda and correspondence between Ginsburg and fellow counsel on cases suggest that she tailored her oral arguments to specific Justices. In several cases, she was in direct contact with Supreme Court clerks and exchanged information with such individuals about the inner workings of the Court. This is not to suggest that Ginsburg was privy to confidential information or engaged in improper activity—rather that she benefited from a collegial relationship with Court clerks in crafting her strategy. Finally, in an effort to understand such an accomplished, yet very private, woman, two former clerks, Elizabeth Magill and Michael Klarman, were interviewed for this article. They provided valuable anecdotal information about the human side of a unique individual. The research was also aided by an extensive paper trail, including published pieces in journals and law reviews, left by Ginsburg that details the evolution of her theories concerning the relationship between litigation against sex-based discrimination and the Fourteenth Amendment.3 She wrote several pieces during her years with the ACLU and continued to publish after her appointment to the federal bench. Her work published in the late 1970s largely reflects her commitment to and continued advocacy for a stricter level of review in judging gender discrimination cases. 1. LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE (1998). 2. Frontiero v. Richardson, 411 U.S. 677 (1973). 3. U.S. CONST. amend. XIV. CAMPBELL FINAL2 4/28/2003 12:36 PM 160 Texas Journal of Women and the Law [Vol. 11:157 A defining characteristic of Ginsburg in this period was her in-depth understanding of the limitations of the judicial branch. Not to be confused with complacency, this understanding of the Supreme Court’s role did not dissuade her from suggesting in speeches and articles that applying the Fourteenth Amendment4 only to racial discrimination might deter dynamic judicial interpretation in adjudicating cases of sex discrimination. There is a marked difference in her approach after the failure of the states to ratify the ERA. Before the period for ratification had expired, Ginsburg argued for the ERA as the necessary tool for the Court to overcome the purported lack of a historical basis for sexual equality in the law, which was keeping the Court from painting broader strokes against sex discrimination. After she left the ACLU, Ginsburg’s published work reflected on the social and legal changes she helped bring about in the 1970s. The article itself is organized into five sections. The first two provide background information about both Ginsburg and the Women’s Rights Project. The bulk of the article, including sections three through five, is organized to reflect Ginsburg’s categorization of the three stages of her strategy—1971 began “forward movement;” 1974 signaled “line
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