A few days alter the president nominated her to the Supreme Court, Ruth Bader Ginsburg received a fax from a member of the Rotary Club in Bernardsville, New Jersey. On June 18, the writer reported, one of Judge Ginsburg's law school classmates had presided over a Rotarian induction ceremony; and during his formal remarks after dinner, the classmate recalled that he and his friends had known Ginsburg "by her law school nickname, 'Bitch.'" Apologizing profusely, the writer assured Ginsburg that he had asked Rotary Club authorities to ban "sexist and scatological statements" at all meetings in the future. Ginsburg read the fax silently. She then exclaimed, "Better bitch than mouse."
The phrase almost epitomizes the vision of feminism that Ginsburg championed as an advocate in the 1970s: a rejection of the traditional idea that women and men occupy separate spheres, in which women are naturally passive and men aggressive; an attack on laws treating men and women differently, especially those designed to protect "the weaker sex"; an insistence that special benefits for women be extended to men; a preference, in short, for equal rather than special treatment for women. Ginsburg's vision of equality, much of which she persuaded the Supreme Court to enact, informs her views about many of the most controversial questions in constitutional law. It is also crucial to understanding her criticisms of Roe v. Wade.
In the 1980s, however, Ginsburg's symmetrical vision of sex equality came under bitter attack by a new generation of feminist legal scholars who argued that the law should emphasize women's differences from men, rather than their similarities. The new feminists called Ginsburg "phallocentric" and "assimilationist" for challenging classifications that burdened men as well as women, and for mostly representing male plaintiffs. "As applied, the sameness standard has mostly gotten men the benefit of those few things women have historically had for all the good they did us," Catharine MacKinnon, now at the University of Michigan, wrote in 1984.
Rather than seeking legal equality, MacKinnon argued, feminists should target instead the broader evil of social structures that "devalue" women. Accordingly, the feminists of the 1980s sought to resurrect many of the special protections for women that Ginsburg had opposed, from sweeping bans on pornography to child rearing benefits for mothers but not fathers. The perverse debate among feminists about whether Ginsburg's advocacy hurt more than it helped women brings to mind Malcolm X's attacks on Thurgood Marshall for being insufficiently black. It also explains some of the ambivalence in the women's movement surrounding Ginsburg's nomination to the Court.
Ginsburg's public responses to her feminist critics have been typically circumspect. She has not concealed her hurt feelings, however, that some of her feminist successors have failed to appreciate her achievements. At a 1988 symposium at the University of Chicago on the feminist legal thought of the 1970s, she lamented the "discordant ... tendency to regard one's feminism as the only true feminism, to denigrate, rather than to appreciate the contributions of others." In response to critics like Mary Becker of the University of Chicago, she called the charge of assimilationism "not fair... the litigation of the 1970s helped unsettle previously accepted conceptions of men's and women's separate spheres."
Privately, she has felt less constrained. After hearing MacKinnon advocate broad restrictions on pornography at Columbia Law School in the late '70s, Ginsburg confided to a friend, "That woman has bad karma." And after reading Katha Pollitt's attack in The Nation last December on Carol Gilligan, Nancy Chodorow and other difference feminists who claim that women are more peaceful and nurturing than men, Ginsburg impulsively sent Pollitt a fan letter. (She enclosed a clipping about the movie Orlando, based on Virginia Woolf's novel about a man who becomes a woman.)
The great irony of the 1980s debate about special treatment versus equal treatment for women, as Ginsburg noted in a 1984 speech, is that the "separate modes thesis" of the new legal feminists looks very much like "the old typology in which the female is classified in terms of passion and its bonds, the male in terms of reason and its distinctions." And it was this typology of difference that justified the legal subordination of women until the 1970s. Most laws that drew an explicit distinction between men and women, Ginsburg notes repeatedly in her speeches and articles, did so ostensibly to protect women, or "benignly prefer" them. Laws prescribing the maximum number of hours women, but not men, could work; laws excluding women from "hazardous" occupations such as bartending; even laws requiring men but not women to serve on juries--all used the rhetoric of "separate but equal" to conceal their assumption that women could not fend for themselves.
As general counsel of the ACLU's Women's Rights Project from 1972 to 1980, Ginsburg sought to persuade the Court that legislation apparently designed to benefit or protect women could often, perversely, have the opposite effect. For this reason, she chose to represent a series of male plaintiffs who had been denied benefits designated for women, forcing the Court to articulate a standard of scrutiny for gender discrimination that could be applied neutrally to either sex. In Frontiero v. Richardson (1973), for example, she argued that the husbands of servicewomen deserved the same health benefits as the wives of servicemen. By convincing the Court to extend the benefits to male spouses, she won a victory for servicewomen, who were in effect being paid less than their male counterparts.
Similarly, in Weinberger v. Wiesenfeld (1975), Ginsburg represented a young widower who had been denied the Social Security survivor's benefits for which he would have qualified if he were female, and which would have enabled him to remain at home with his infant son. The law appeared to discriminate against men alone, but Ginsburg argued successfully that the discrimination was, in fact, "double edged": it relied on "archaic stereotypes" of men as breadwinners and women as care givers, and it required women to pay the same Social Security taxes as men but gave fewer benefits to their families.
Throughout the '70s, Ginsburg's work was supported by a broad consensus among feminists, even in the cases she lost. (In 1974, for example, the Court rejected her challenge to a Florida law granting widows, but not widowers, an annum $500 property- tax exemption.) But toward the end of the decade the consensus began to break down over the question of pregnancy. Should pregnancy be viewed as a unique condition, not legally comparable to anything that men experience, as both the conservative justices and the new feminists came to argue? Or should pregnancy, as Ginsburg argued, be viewed as a temporary occupational disability, comparable to other disabilities like prostate cancer or a broken leg?
Ginsburg first articulated her view that "disadvantaged treatment" on the basis of pregnancy is tantamount to sex discrimination in a 1972 case, Struck v. Secretary of Defense. Representing a Catholic servicewoman who refused to have an abortion, Ginsburg challenged an Air Force regulation requiring all women officers to be discharged as soon as they became pregnant. The regulation, Ginsburg argued, amounted to unconstitutional sex discrimination because it treated pregnancy far more harshly than it treated other temporary disabilities affecting men and women.
The Struck case became moot before it reached the Supreme Court, but the justices soon rejected Ginsburg's views about pregnancy in two related cases. In 1974, and again in 1978, the Court held that California could compensate workers for all occupational disabilities except pregnancy, without violating the Constitution or Title VII, which prohibits discrimination "on the basis of sex." Rather than discriminating between men and women, Potter Stewart held, the California law made a reasonable distinction between "pregnant women and nonpregnant persons."
After the 1978 decision, Ginsburg and Susan Deller Ross, a staff attorney at the ACLU, wrote an op-ed in The New York Times calling on Congress to repudiate the Court's interpretation of Title vii. "If it is not sex discrimination to exclude pregnant women from standard, fringe benefit programs," they wrote, "is it sex discrimination to fire pregnant women, refuse to hire them, force them to take long, unpaid leaves or strip them of seniority rights when they return to work?" Congress promptly obliged by passing the Pregnancy Discrimination Act, which says explicitly that Title VII's ban on sex discrimination in the workplace includes discrimination on the basis of pregnancy.
Five years later, however, the consensus among feminists had disintegrated entirely. The catalyst for the split was a California law that gave pregnant women special maternity leaves. Ginsburg had already become a judge; but the ACLU, relying on the theories she had developed, argued that the California law was inconsistent with the Pregnancy Discrimination Act's command that pregnant women "shall be treated the same" as other temporarily disabled workers. Rather than invalidating the maternity leaves, the ACLU argued, the Court should extend the leaves to men.
ACLU staff members who worked on the brief recall being "viciously attacked" by feminist organizations in California, who accused them of being anti-woman. The California groups, led by Christine Littleton of the Coalition for Reproductive Equality, argued that special benefits for pregnant women are necessary, despite their violation of formal equality'. Because most workplaces are designed with men in mind, they argued, women need to be treated differently to be treated equally.
In a 1984 speech, Ginsburg tacitly endorsed the ACLU's position, noting the "boomerang effect" of special pregnancy benefits for women, who are less likely to be hired in the first place. She also pointed to a legislative alternative, the Family Medical Leave Act, which creates child rearing benefits that can be claimed by men or women. But in the 1985 Calfed case, the Supreme Court upheld the California law; and the special treatment camp claimed vindication. Its leaders then seized on the victory to propose far more radical benefits for pregnant women, such as Littleton's 1987 suggestion that the government should be required "to pay mothers the same low wages and generous benefits as most soldiers."
The bitter debate among feminists about pregnancy benefits has dramatic implications for the legal stares of the right to choose abortion itself. For as Ginsburg noted in a 1986 article, "The characterization of pregnancy discrimination as sex discrimination, requires the comparative analysis of the equal protection model. Its emphasis is on what is not unique about the reproductive process of women." By contrast, the difference feminists focus on what is unique about childbirth. They advocate special treatment for pregnant women based on their premise that men and women are not "similarly situated" because of their reproductive differences. But this was the same premise Stewart had invoked in his 1974 holding that discrimination against pregnant women is permissible.
Ginsburg noted the "interrelationship" of the reproductive autonomy and pregnancy benefit cases in a series of articles in the 1970s. But she waited until a 1984 speech at the University of North Carolina to argue explicitly that the Roe Court should have relied on sex discrimination, rather than privacy, in protecting the right to choose abortion. Her reason for waiting appears to have been partly strategic, dictated by the politics of the Equal Rights Amendment. The ERA's ratification was seriously threatened by Phyllis Schlafly's charge that the amendment might create abortion on demand--as indeed it might have, if abortion restrictions were seen as a form of sex discrimination. As a result, Ginsburg stressed in her many pro-ERA speeches and articles that the sponsors of the amendment intended to create an exception fro" physical characteristics unique to one sex. And under Ginsburg's direction, the ACLU drafted a coy response to the question of whether the ERA would protect abortion rights: "In Roe v. Wade, the Supreme Court decided that abortion rights are protected by the right to privacy."
By 1984, however, the ERA was clearly defeated. Both Ginsburg and Sylvia Law, a law professor at NYU, at last felt free to argue explicitly that abortion restrictions are a form of sex discrimination. Ginsburg's criticisms of Roe occupy only part of her article. Quoting Paul Freund of Harvard, she argues that the Court should have simply struck down the extreme Texas law at issue in Roe because "a law that absolutely made criminal all kinds and forms of abortion ... is not a reasonable accommodation of interests." Her observation, now hotly disputed, that there was in the early 1970s a legislative trend "toward liberalization of abortion statutes" is a direct quotation from Roe itself.
The more radical part of Ginsburg's argument is the alternative she envisions: a "synthesis" that would apply the logic of sex equality to cases involving reproductive autonomy and pregnancy, as well as formal classifications between men and women. In her North Carolina speech, she attributes the synthesis to Kenneth Karst's 1976 foreword in the Harvard Law Review, "Equal Citizenship Under the Fourteenth Amendment." In her Madison lecture at NYU last March, Ginsburg omitted the references to Karst and emphasized instead her" own distinctive contribution to the abortion debate, the 1972 Struck brief, in which she argued that "exaltation of woman's unique role in bearing children has, in effect, restrained women from developing their individual talents ... and has impelled them to accept a dependent, subordinate status in society."
It is ironic that pro-choice activists such as Kate Michelman of NARAL have expressed concern about Ginsburg's views on abortion. Despite her criticisms of the sweep of Roe, Ginsburg has never publicly questioned the constitutional foundations of the right to privacy itself In her Struck brief, she noted that "individual privacy with respect to procreation and intimate personal relations is a right firmly embedded in this nation's tradition and in the precedents of this Court." MacKinnon, by contrast, rejects the idea that sex is a private matter, since it implies that government has no legitimate concern with what happens to women behind the bedroom door, where sex, according to MacKinnon, is often like rape.
Although Ginsburg criticizes Roe for its immoderation, furthermore, her alternative grounding for abortion rights is poteu6ally tin- more sweeping. Her North Carolina speech argues explicitly that government has an affirmative duty to fund abortions for poor women. By subsidizing all medically necessary procedures except for abortion, she suggests, the Hyde amendment prevents the government from performing its "duty to government impartially." If" the constitutional test is framed as abstractly as Ginsburg frames it, in fact, then it might well require, in Karst's words, "the invalidation of all rules of substantive law which overtly impose dependency on women, together with a lively judicial sensitivity to the role of law in the symbolism of dependency." Despite their very different premises, it is not easy to distinguish this vision from MacKinnon's alternative test, which would strike all laws that "integrally contribute to the maintenance of an underclass or a deprived position because of gender status."
Ginsbnrg's criticisms of Roe are indeed intelligently nuanced. (See "The List," TNR, May 10.) But in addition to its potentially unbounded quality, the sex discrimination argument raises several other questions. Ginsburg's central premise is that anti-abortion laws, like employment discrimination against pregnant women, are based on "stereotypical assumptions" about women as care givers. But it is at least arguable that abortion restrictions today, unlike those in the late nineteenth century, are motivated exclusively by views about the sanctity of life, and may not reflect stereotypes about women after all. Ginsburg also faces a formidable obstacle in the 1979 Feeney case, in which the Court held unanimously that when neutral laws have a "disparate impact" on women, they are unconstitutional only if the legislators clearly intended to discriminate against women.
Ginsburg has not attempted, finally, to root her vision in constitutional history. "The Darners of the Four teenth Amendment did not contemplate sex equality," she wrote as an advocate in a 1976 article. "Boldly dynamic interpretation, departing radically from the original understanding, is required to tie to the ... equal protection clause a command that government treat men and women as individuals, equal in rights, responsibilities and opportunities." Some more recent liberal scholars, in fact, have tried to argue that the framers of the Civil War amendments did intend to single out sex discrimination for special scrutiny. But Ginsburg has not yet indicated whether she thinks their work is convincing, or germane.
Although Ginsbnrg's ambitious attempt to synthesize the abortion cases and the sex discrimination cases deserves respect for intellectual consistency, in short, it may be too abstract, in its current formulation, to he entirely persuasive. At her hearings, perhaps she could he asked to discuss in greater detail her views of the relevance of history, and the precise role of stereotypes, in deciding whether abortion regulations violate the equal protection clause.
Despite their radical implications, nevertheless, it seems unlikely that Ginsburg would apply her views about sex equality in radical ways. Her real objection to Roe is its immoderation, after all. And her opinions on the Court of Appeals suggest that her preference for what she calls "measured motions" in constitutional adjudication is more than rhetoric. On a court whose hands are usually tied by the Supreme Court, Ginsburg tends to stick unusually close to the governing law. In many of her opinions, there are few glimpses of Ginsburg's own views; instead, she scrupulously describes the relevant precedents and applies them without fuss or fanfare. As a justice rather than a judge, presumably, Ginsburg will feel less inhibited about expressing her own constitutional views. But even those who know her best cannot confidently predict whether the change in role will liberate her to act more as a judicial prophet and less as a priest.
A final question is whether Ginsburg will be consistent when applying her jurisprudence of equality in areas beyond gender. In the 1984 Dronenberg case, for example, she voted not to rehear Robert Bork's rambunctious opinion that the right to privacy doesn't protect homosexual conduct. "In my view," she wrote, "lower court judges are not obliged to cede to the law reviews exclusive responsibility for indicating a need for, and proposing the direction of, 'further enlightenment from Higher Authority.'" But she then refused to say whether she agreed with Bork or with the liberal dissenters, who thought the Army's very different treatment of heterosexuals and homosexuals called for "serious equal protection analysis." Instead, she insisted that the case was controlled by the Supreme Court's summary affirmance of an obscure district court opinion. Her short statement is unsatisfying not because it reveals whether Ginsburg would extend her vision of sex discrimination to include homosexuals, but because it doesn't. In evaluating race-based affirmative action programs, by contrast, she has been less concerned about ferreting out stereotypes. Voting to strike down a set-aside program for minority contractors last June, she wrote separately to register her belief that "remedy for past wrong is not the exclusive basis upon which racial classification may be justified." This is more expansive than her view of affirmative action programs for women, which should only be upheld, she suggested in a 1989 article, "if in fact adopted by the legislature for remedial reasons, rather than out of prejudice about 'the way woman are.'"
Ginsburg defends the different standards by emphasizing that the sources and effects of race and sex discrimination are often different. "With respect to women, the Bakke case is superfluous," she told Newsweek in 1979, noting that women do better than men on the LSAT. But she has also argued that the separate university admissions policy in Bakke should have been upheld as an effort to open the way" to "genuinely equal opportunity" for blacks by "restructuring the medical profession." Ginsburg has not yet been asked to engage the argument that explicit quotas along the Bakke model may perpetuate stereotypes, rather than alleviate them.
If Ginsburg is confirmed, she will have dramatic opportunities to develop her vision of the jurisprudence of equality over the jurisprudence of difference. She may, in time, be asked to pass judgment on many of the "benign preferences" for women that her intellectual opponents have endorsed: comparable worth policies that seek to reimburse women for traditional occupations, such as motherhood; statutory rape laws with different ages for women than for men (Ginsburg questioned their constitutionality while at the ACLU); child custody laws preferring mothers to fathers; the Violence Against Women Act, which enhances penalties for crimes "motivated" by gender. She will also be able to re-examine some of her past positions that are arguably inconsistent with a symmetrical vision of sex equality, such as the 1971 article in which she endorsed David Riesman's suggestion that single-sex colleges for women, but not men, might be constitutional because "if America were now a matriarchy ... we would regard women's colleges as a menace and men's colleges as a possibly justified defense."
In her first weeks on the Court, in fact, Ginsburg will confront a sexual harassment case in which the internecine battles of the women's movement seem to converge. In deciding whether women who are offended by a hostile work environment must prove that they have suffered from "psychological injury" to make out a claim under Title VII, Ginsburg will be asked to plug an expanding hole in the First Amendment that MacKinnon persuaded the Court to overlook in 1986. Women's rights organizations have taken different positions in the case about whether sexual harassment should be judged from the perspective of the "reasonable woman," the "reasonable person" or the actual victim. In choosing among the various alternatives, Ginsburg will have the chance to reaffirm the view she expressed in New Delhi in 1988: "Generalizations about the way women or men are ... cannot guide me reliably in making decisions about particular individuals."
For all its resonance, in the end, Ginsburg's maxim, "better bitch than mouse," does not quite do justice to her vision of sex equality. She has never argued that women should be forced to act like beasts, or that men should be discouraged from acting like mice. On the contrary, her ambition as an advocate was to purge the law of sweeping stereotypes that prevent individuals, women and men, from following their inclinations rather than submitting to conventional gender roles. Perhaps her work on the Court will encourage feminists who have lost faith in her vision to think again.
Jeffrey Rosen is the legal affairs editor at The New Republic.
Jeffrey Rosen is legal affairs editor at The New Republic and president and CEO of the National Constitution Center.