A break from Sotomayor: Chapter 4 of 'Equal'

4.Wiesenfeld brings reality.

As you may recall, Paula Wiesenfeld died in childbirth and Stephen was denied the same social security benefits he would have received if he had been a widow instead of a widower. The Wiesenfeld case was prepared by students in Ginsburg's Equal Rights Advocacy Seminar at Columbia Law School. Astonishingly, the District Court applied the Frontiero minority's strict scrutiny test.

Representing the government was Robert Bork, who a few months earlier had fired Watergate special prosecutor Archibald Cox.

For the argument, for the first and only time at the Supreme Court, Ginsburg had her client sit at the counsel table. “She would never know if the justices knew that the man sitting at her side was Stephen Wiesenfeld. But she did not that judges worry about made-up cases, and she wanted to send a signal that 'this was a genuine as any case' and that 'this sort of sex stereotyping hurt many people, everyday people, people like Stephen Wiesenfeld.'”

Wiesenfeld was not a man grasping after a woman's benefits – it was a child who was not receiving benefits for which his mother had paid.

In a unanimous decision, the court ruled for Wiesenfeld and Ginsburg. Justice Brennan had a woman clerk, although he had told the law school at Berkely he wanted a male. Berkely told him he wasn't getting a male. Brennan's clerk, Marsha Berzon, had written the part of the opinion that showed that the purpose of the law was to aid children who had lost a parent. This analysis led the court to unanimity. Ginsburg later said, “Rehnquist was caught by the baby.”

But the court stopped at heightened scrutiny and could not bring itself to apply strict scrutiny. Ginsburg has not yet brought the court to strict scrutiny. In 1996, in a case involving the Virginia Military Institute's exclusion of women, she got the court as far as “skeptical scrutiny.” The ruling was 7-1-- Justice Scalia dissented and Justice Thomas recused.

In United States v. Virginia, Ginsburg wrote: “The justification [for sex discrimination] must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overboard generalizations about the different talents, capacities, or preferences of males and females. . . . "Inherent 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. Sex classifications may be used to compensate women "for particular economic disabilities (they have) suffered," to "promot(e) equal employment opportunity," and to advance full development of the talent and capacities of our nation's people. But such classifications may not be used, as they once were, to create or perpetuate the legal, social and economic inferiority of women.”