Thursday, September 17, 2015

Like and Unlike - Sandy and the Notorious RBG

I like to call it "The Case I Almost Won in the Supreme Court."

"Almost won" is, of course, an awful lot like lost, except maybe it sounds better.  Sigh.

Here's what happened.  No votes to grant cert, which made sense.  The issue had been resolved by the Supremes decades earlier except that Ohio didn't get the memo.  And really, it wasn't (anymore) the least bit controversial.  Not even in Ohio where there was no controversy since it was as if it had never happened.

It wasn't a death penalty case.  Millions weren't at stake.  The republic wasn't in any particular peril from a rogue Ohio court.   My client had been convicted of a low level drug offense and sentenced to some 6 months in the hoosegow.  Why would anyone down in D.C. call for full briefing and oral argument?  Hell, I wouldn't have.

But Justice Breyer figured that since this was the 2001 and the issue had been resolved in 1958, well, maybe it was time to pass the word to the folks in the Buckeye State.  So he wrote what they call on First Street a "Statement . . . respecting the denial of the petition for writ of certiorari."  Three others signed on, the usual suspects for such a thing: Justices Souter, Stevens, and Ginsburg O'Connor.

Wait, did I say O'Connor?  Did I strike out RBG?  That's not the usual suspects at all.  And it's not what should have been a losing hand.  After all, I got the Justice who was never in the minority.  But I lost the presumed liberal.

And while the plural of anecdote is not data, the story says something about the Justices Linda Hirshman calls "sisters in law."  In fact, she makes that the title of her new book, a joint biography of the two: Sisters in Law: How Sandra Day O'Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World.  

O'Connor and Ginsburg are, of course, an oddly matched duo. But matched they are.  O'Connor, the child of an Arizona rancher, born in El Paso in 1930, raised on the ranch and sent off to boarding school.  Ginsburg, born and raised in Brooklyn in 1933, educated at the local public schools.  Both academic stars at college and at the top of their classes in law school.  Both denied opportunities they'd have gotten after law school had they been men.*

O'Connor ended up practicing law and volunteering like crazy back in Arizona.  Then she got elected to the legislature and then appointed to the Arizona Supreme Court.  Ginsburg taught law and developed and ran the ACLU's Woman's Rights Project and argued landmark cases advancing gender equality before the U.S. Supreme Court.

In 1981, Reagan appointed O'Connor to the Supreme Court.  The first woman ever in that men's club. Ginsburg, who had been appointed to the D.C. Circuit Court of Appeals in 1980 by Jimmy Carter, joined O'Connor on the Court in 1993.  As they both acknowledged repeatedly over the years, life on the Court for each was better when the other was also a Justice than during the years (fewer for Ginsburg) when she was the only woman there.

Those are the facts.  Hirshman sets them out clearly, balancing them, adding stories as she goes.  And Hirshman's a good storyteller.  (She demonstrated that in her previous book, Victory: The Triumphant Gay Revolution.)

The meat of the book, though, isn't in the biography or the personal tidbits (O'Connor cooked up meals for meetings with her clerks; Ginsburg didn't cook at all but her husband was a terrific chef). It's in the discussion of the cases and the law, that part of the subtitle about how they "Changed the World." 

Ginsburg, Hirshman says repeatedly though rarely as explicitly as I;m going to make it sound, has an agenda.  Her goal as a litigator and as a justice has been to eradicate gender inequality in the law.  Completely. She advocated for the goal (brilliantly and with remarkable success) in the work she did at and for the ACLU.  She had a strategic plan, modeled on how Thurgood Marshall went after racial discrimination leading to Brown v. Board of Education.  It's an incremental approach, winning the easy cases that establish precedents that make the harder cases inevitable.  (It's using the uppercase L Law that I've regularly say I don't much believe in.)

She maintains that agenda on the Court, but she's frequently been blocked at advancing it because she can rarely garner 5 votes for the sweeping language she wants to put into opinions.  As a result, she either has to tone down her opinions or to write stirring dissents.

O'Connor has no agenda.  Like Ginsburg, she's a feminist, but unlike Ginsburg she's a secret one  She agrees with all Ginsburg's goals (except on abortion where she voted to keep it legal but make it extraordinarily difficult for women who aren't rich to obtain) but doesn't actually favor advancing them very far.  Rather, she simply votes not to make things worse.  Because she has neither agenda nor philosophy she chooses to decide cases in ways that provide no precedent for anything and no guidance for the lower courts.** 

She was almost always in the majority but routinely limited the reach of that majority.

But ultimately, the two working together advanced women's equality in absolute terms.  And it couldn't have happened without both of them working together.

Hirshman plays that out with discussion of case after case.  She gets into the behind the scenes maneuvering on how opinions get written and the internal dynamics of the Court and the Justices. (Lewis Powell comes off particularly poorly.)

The problem with the thesis is that it's too bold, doesn't quite follow from the evidence she presents, and frankly ignores too much.

For most of her time on the Court, Ginsburg has been the closest one there to being what we think of as a liberal.  Yes, she's voted strongly in favor of gender equality - which has had, by the way, some serious success at the Court.  But she's pushed other traditional liberal causes, too.  She has been, and remains consistently among the Justices favoring due process in criminal cases, government regulation of business, and the welfare state.

In each of those areas, O'Connor has been, shall we say less enthusiastic.  Not the most avid voice of traditionally conservative values and positions, her case-by-case jurisprudence, her disinclination to set rules and precedential guidance made her the Court's swing vote when opinions otherwise divided along traditional lines with four votes on each side of an issue.  Win O'Connor, and you carried the day even if it didn't do much for the next case up.  (My case, of course, was an exception, dammit.) Win Ginsburg and, well, you won Ginsburg.

So did they "change the world"?  Hardly.  They changed the complexion of the Court itself, of course.  And that has had consequences.  It's given the lie to the claim that women can't.  It's allowed them to serve as role models for a couple of generations now.  And it's affected some votes and, therefore, some rules of our society.  They moved a set of issues - important ones, but just one set.   And in very large part, Ginsburg moved it before either of them got on the Court and O'Connor resisted undoing what she'd achieved. 

Hirshman's occasionally just wrong about something.  She defines "borking," a term growing out of the confirmation hearings of Robert Bork (who of course did not get on the Court) as "killing a nominee by letting him expand upon his weirdly marginal beliefs." Not so.  Borking is the systematic, unfair, and dishonest vilification of someone - especially a candidate for public office. (Whether Bork was actually borked is a arguable; the question depends on whether the attacks on him were fair, a matter of some dispute.)  

Hirshman's prose is sometimes too glib and at times jarringly colloquial.  Some of her characterizations veer toward caricature (especially of Lewis Powell, who's almost borked himself here).  There are things one would like more of - including the less than cordial relationship William Brennan had with O'Connor after he, in dissent, derided an early opinion of hers as an "exercise in judicial activism."  Hirshman references the story, then lets it go.

These are quibbles.  Sisters in Law is on the whole engaging and informative.  Hirshman has an eye for the telling anecdote.  An if O'Connor and Ginsburg haven't changed the world, they've certainly made their mark.

*The stories are well known.  
O'Connor, getting no traction on the job market after law school because firm after firm explained that they didn't hire women, finally used connections to speak with one of the big shots at Gibson, Dunn & Crutcher.  She was told that the firm never hired a woman lawyer and never would.  "Our clients wouldn't stand for it."  But he did offer her a shot at a job as a legal secretary.
Ginsburg, too, was not offered a job at a firm after law school.  But some of her professors thought she could do better.  They recommended her to their close connection, Justice Felix Frankfurter, urging him to hire her as a law clerk.  Nope.  "I'm not hiring a woman."

**O'Connor's vote in the case I almost won is a perfect example.  This is settled law, she joined Breyer in saying, just, do what we told you 43 years ago.  Ginsburg's vote remains to me a mystery.
My thanks to Harper Collins for sending me an advance copy of the book to review.

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