Chapter Two of "Equal: Women Reshape American Law:

2.Old Law Meets a New Case: Reed

The Idaho Supreme Court had said that “nature itself [had] established the distinction between men and women.” Ginsburg used the case as the first step to getting gender viewed as a suspect class.

Ginsburg worked with a group of law students who wrote a brief filled with social history and left it with her with notes that said, “check source.” She fixed their footnotes and added law to their “student screed.” Ginsburg was a hidden radical who had been turned down for many jobs, including clerkships at the Supreme Court, because she was a woman.

In Reed she argued for strict scrutiny, or, in the alternative, for intermediate scrutiny, or, failing those, for a classification that is reasonable, not arbitrary, and related to the object of the legislation. The language of the third test was drawn from a 1920 case named Royster Guano. Ruling for Sally Reed, Chief Justice Warren Burger applied the “rational relationship” test. Ginsburg was delighted with the decision which she saw as a “turning point” case, Although the rational basis test sounded easy, it called for an intermediate level of scrutiny, while the so-called intermediate test was actually quite difficult.

Ginsburg took charge of the Women's Rights Project of the ACLU (which received early funding from the Playboy Foundation, causing mailings to go out under a Playboy Bunny imprint.) Ginsburg assembled an “Equal Rights Advocacy Seminar” at Columbia, where she was now teaching. “Never again would student drop their drafts in Ginsburg's lap, telling her to fix the footnotes.”