Subversive women

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To fully appreciate the landmark legal battles waged by women seeking equality under American law, you must make two leaps of logic that are near-impossible if your memories of the 1960s and ’70s are in any way hazy.

First, you must remind yourself how truly medieval life was at that time, and how rapidly it's changed. As this history by journalist and writing teacher Fred Strebeigh recounts, until the 1970s, every woman who came before the U.S. Supreme Court seeking gender equality lost her case. Women like Ruth Bader Ginsburg could graduate first in their class, yet be denied a clerkship because they were female. At Harvard Law School, Ginsburg the student could be merrily quizzed by the dean about why she was taking a seat that "could have been held by a man." Women could be denied interviews at prestigious law firms in favor of men with lesser academic credentials. Female attorneys at those firms could be sidelined in "women's" subspecialties and breezily be excluded from firm functions and travel and denied partnerships. As recently as 1975, women sexually assaulted by their employers had very limited legal recourse. Until relatively recently women still hid their pregnancies from their employers, accepted unequal pay, and suffered in silence when their bosses fondled them at the coffee machine. This is not a book about the bad old days of the 1870s. It's about the bad old days of the disco era.

Then you have to go one step further and recognize how utterly ordinary all this seemed to the women involved. Ginsburg had so normalized the legal gulf between herself and her male colleagues that she rarely bothered to mention it: she simply accepted discriminatory treatment in her military assignment because she was pregnant; accepted Harvard Law School's discriminatory financial aid policy; and organized her secret pregnancies around her Rutgers University teaching schedule. Civil rights lawyer Ruth Weyand acceded to submitting briefs under anonymous initials, so nobody would know a woman had authored them, and accepted that if she were spotted by a client of the firm, she was explained away as the woman who "just walks the briefs over to court." This is not so much a book about radical women as it is about ordinary American women slowly and collectively shaking off a bad dream.

Fred Strebeigh has amassed an enormous quantity of information here. In addition to copious legal documents and interviews, he received unfettered access to Justice Ginsburg's old legal files. So he wisely chose to divide his book into broad gender themes: the legal fight for less-deferential scrutiny of gender discrimination in the courts; the fight for pregnancy protection in the workplace; the fight against discrimination in the legal profession (as late as 1983 a prestigious Atlanta law firm saw nothing wrong in holding a bathing suit pageant for its female summer associates); and the fight for special protections against harassment and violence toward women. Each section is constructed around a lawsuit or a sequence of suits that culminate at the Supreme Court, with a keen focus on the legal strategies and arguments that either prevailed or failed there.

This would indeed be a cumbersome amount of material, were it not for the fact that familiar patterns rapidly emerge and then resurface throughout the narrative. Foremost among them is that this was a revolution largely fought and won by women. This is not the story of wise old men who saw the error in treating women like fine china. This is the story of wise old jurists who could write passionate legal opinions about race and gender discrimination, while still declining to hire female law clerks. It's about great liberal lions like William Brennan, who, in 1973, still demanded that Berkeley law school send him names of the best male clerkship candidates. Or Justice Harry Blackmun, author of Roe v. Wade, who had a penchant for meticulous note-taking about the attire of female attorneys arguing before him. (The first time Ginsburg argued at the Court he gave her a C+, with the gloss "very precise female.")

The surprise at the heart of Equal is the extent to which well-meaning males tended to see women as fighting against their own interests, and themselves as protectors. As Ginsburg would later put it, these men genuinely believed, "What is this sex discrimination? What are you talking about? I'm so good to my wife and my daughter." And how do you explain the family resemblance between chivalry and bigotry to some of the most chivalrous men on earth?

This is why Equal is really the story of subversive women. Ginsburg's subversive strategy for battling gender discrimination was to bring cases about the unfair treatment of men. Female law clerks, law students, academics, and practitioners formed subversive coalitions that shared information, research, and strategies to nudge the courts toward gender-blind justice. It took this small army of often invisible women to make men understand that, quoting the California Supreme Court: "The pedestal upon which women have been placed has, all too often, upon closer inspection, been revealed as a cage."

One of the interesting questions raised by Strebeigh's ambitious work is what happens to women once they emerge from these shadows and assume positions of real power. Are their lives forever altered? Do they fight for their sisters? One star of this book is Eleanor Holmes Norton ’63MA, ’64LLB, who started law school with "almost no feminist consciousness" but soon found herself on the front lines of gender discrimination, and pops up throughout the book like a feminist Where's Waldo. But we also encounter the first female Supreme Court justice, Sandra Day O'Connor, who voted with the majority in 2000 to strike down a law making violence against women a federal crime, on the principle that it interfered with states' rights. Equal -- which ends with a brief reflection on the failed nomination of Harriet Miers to the Supreme Court -- reminds us that although women have largely won equal treatment under the law, they are anything but the same.

If Equal proves anything at all about the fight for gender equality under the law, it's that when it comes to women, the Supreme Court is a slow and unwieldy agent of change; it often trails the legal academy, state and federal agencies, legislatures, and even state courts in recognizing problems. On no issue as much as gender does the high court appear -- even in 2009 -- to lag decades behind the rest of the nation. Strebeigh closes with the reminder that men and women have tended to look at these legal issues very differently. Yet male presidents and a largely male Senate still determine who sits on the Court.

Perhaps that explains how Justice Samuel Alito ’75JD could have been so spectacularly wrong about the reality of pay discrimination in 2007, or Justice Anthony Kennedy, that same year, so frighteningly patronizing about women who may come to regret their abortions. When male judges are allowed to substitute their assumptions for women's reality, some of that blind, misguided chivalry creeps back into the law. It also helps illuminate how tragic it is that with women accounting for almost 50 percent of the country's law students, Ruth Bader Ginsburg remains the lone and lonely woman on the Court.