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.”

Q&A with Justice Ginsburg

In a great tie-in to the posts on Equal, the New York Times today featured an interview with Justice Ginsburg about her thoughts on The Place of Women on the Court. Justice Ginsburg gives a very candid interview on her thoughts on the dearth of women on the Supreme Court, Sotomayor's nomination, her reflections on some past cases, and her thoughts on legal agendas in the future. Some highlights:

On being the only woman on the Court: My basic concern about being all alone was the public got the wrong perception of the court. It just doesn’t look right in the year 2009.

On Sotomayor's "Latina women" comment: I thought it was ridiculous for them to make a big deal out of that. Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could. I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.

On how the next generation could change things: [In Nguyen v. INS, the court in 2001 upheld, by 5 to 4, a law that set different requirements for a child to become a citizen, depending on whether his citizenship rights came from his unmarried mother or his unmarried father.] The majority thought there was something about the link between a mother and a child that doesn’t exist between the father and a child. But in fact the child in the case had been brought up by his father.

They were held back by a way of looking at the world in which a man who wasn’t married simply was not responsible. There must have been so many repetitions of Madame Butterfly in World War II. And for Justice Stevens [who voted with the majority], that was part of his experience. I think that’s going to be over in the next generation, these kinds of rulings.

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.”

"Equal" Begins with Ruth Bader Ginsburg

I've just finished "Equal -- Women Reshape American Law" by Fred Strebeigh. It is a terrific read about the changes in law through the Violence Against Women Act, scholarly yet full of humanity. I'll be publishing little book reports over the coming days.

The book is dedicated to all of us: "women shaping law."

Prologue: “This book, drawing on interviews with and documents from participants in those cases, tells the stories behind the cases that propelled American law toward equality. And it tells tales of resistance from on high.”

Part One: SCRUTINY (1970-1975)

1.The Story of Paula Wiesenfeld.
In 1972 Ruth Bader Ginsburg (shown here in her ACLU days) found the story of Paula and Stephen Wiesenfeld and immediately knew it offered the case she needed. “Ginsburg in the early 1970s was making the most profound attack on sexist law in the history of the American legal system.”

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. Ginsburg was an ACLU lawyer and a professor at Rutgers, where a group of women students had asked her to teach a course on women and the law.

Prior to Wiesenfeld, Ginsburg had also worked on the case of Charles Moritz, who was denied a tax deduction for household help to care for his 89-year-old mother because he was a man, and sought a role in the case of Sally Reed, who could not serve as administrator of her son's estate because she was a woman. Ginsburg suggested to her friend Mel Wulf,who was the legal director of the ACLU, that a woman co-counsel would be appropriate in Reed. Wulf agreed, perhaps because Ginsburg had supplied her brief in Moritz not only to Wulf but also to other New York lawyers. One of those lawyers, well connected to the ACLU, wrote Ginsburg that her Moritz brief was terrific, with a copy of his letter to Wulf. Wulf then invited Ginsburg to join on Reed. He had been known to say that he “plucked Ruth Bader Ginsburg from obscurity,” but also remarked, “Maybe she plucked herself from obscurity.”

We return to Wiesenfeld in Chapter 4.

USSC oks ongoing pregnancy discrimination in "Hulteen"

Today the U.S. Supreme Court released A.T. & T. v. Hulteen, which says that the company may calculate current pension payments using a length of service calculation that omitted pregnancy leaves taken prior to the 1979 Pregnancy Discrimination Act. In a 7-2 ruling the court overturned the Ninth Circuit. Justice Ruth Bader Ginsberg dissented, and was joined by Justice Stephen Breyer.

Ginsberg wrote: “ I would hold that AT&T committed a current violation of Title VII when, post-PDA,it did not totally discontinue reliance upon a pension calculation premised on the notion that pregnancy-based classifications display no gender bias. … Congress did not provide a remedy for pregnancy based discrimination already experienced before the PDA became effective. I am persuaded by the Act’s text and legislative history, however, that Congress intended no continuing reduction of women’s compensation, pension benefits included, attributable to their placement on pregnancy leave. ...

It is at least reasonable to read the PDA to say, from and after the effective date of the Act, no woman’s pension payments are to be diminished by the pretense that pregnancy-based discrimination displays no gender bias.

I would construe the Act to embrace plaintiffs’ complaint…”

The only good thing about this case is that only women who are receiving pensions now that include pre-1979 pregnancy leave can be subjected to ongoing gender-based discrimination. The bad news is that there must be a lot of women who were pregnant 30 or more years ago who are heading into retirement.

Perhaps the Lily Ledbetter act should be amended to cover this situation. Given how hard it was to pass that law, that may not be a likely outcome.