The Oath (10 page)

THE LEGACY OF APPENDIX E

A
s the Court convened on the first Monday in October 2006, the beginning of the second full year of the Roberts Court, Ruth Bader Ginsburg had more on her mind than the new lineup of cases. Someone in her family had cancer. Again. The disease haunted her life.

Ruth Bader was born in 1933. Her father was a furrier and her mother cared for Ruth and Marilyn, her older sister, in their Brooklyn home. Few people were buying furs at the height of the Depression, so the family struggled. When Ruth was a toddler, Marilyn was stricken with meningitis and died. Ruth was raised as an adored only child, escorted by her mother to cello lessons and the local public library, which was located above a Chinese restaurant. When Ruth was thirteen, her mother was diagnosed with cervical cancer. Throughout Ruth’s high school years—when she was a cheerleader, editor of the school paper at James Madison High School, and the designated “rabbi” at her summer camp—Celia Bader endured the agonies of cancer treatment in the 1940s. She died the day before Ruth’s graduation. After the funeral, the Bader house filled with mourners, but only the men were allowed to participate in the minyan,
the quorum for the official prayers. The teenaged Ruth took note.

Ruth went to Cornell, where on a blind date she met Martin Ginsburg, who was a year older and also from Brooklyn, though he was raised in more prosperous circumstances, on Long Island. Ethnicity notwithstanding, they were almost comically mismatched. Ruth was shy, bookish, and reserved; Marty was ebullient, outgoing, and amusing.
Each one remained that way for a remarkable half-century-plus of marriage. Their personalities could scarcely have differed more, but as a partnership based on love and respect, their union served as a happy model for all who knew them.

They married just after she graduated, in 1954. Ruth followed Marty to Oklahoma, where he was completing his service in the army. This corner of the military had entered a postwar lull, and Marty found a good deal of time on his hands. He took the opportunity to read Escoffier and turned into an accomplished chef, which his wife, emphatically, was not. Their daughter Jane was born in 1955, and the family moved to Cambridge, where Marty was a year ahead of Ruth at Harvard Law School. She was one of nine women in a class of more than five hundred. (Ruth again noted the rules limiting female freedom, often without rhyme or reason. For example, at Cornell, women were required to live in the dorms; at Harvard, they were forbidden from living in the dorms.)

While they were law students, Marty was stricken with testicular cancer, then as now a devastating disease. Through two surgeries and extensive treatments, Ruth cared for Marty, took class notes for him (as well as herself), typed his papers, made law review, and tended to their young daughter. It is said that these years made Justice Ginsburg somewhat intolerant of her law clerks’ complaints of overwork. Marty survived, of course, and the couple had a son a few years later.

The Ginsburgs moved to New York, where Marty practiced tax law at a big firm and Ruth spent her final year of law school at Columbia. She then began a career in teaching law, first at Rutgers, in New Jersey. In her early years as a professor, she specialized in federal civil procedure, a subject she continued to find fascinating throughout her long career. (Rehnquist shared this unusual fondness, and it contributed to the warm relationship between the two.) In the fall of 1970, though, Ruth was thinking about doing some work for the budding women’s movement. One evening, as the couple was working in their adjoining home offices, Marty handed Ruth a few pages from a recent tax court decision. “Read this,” he said.

“I don’t read tax cases,” she told him.

“Read this one,” he said.

In the five minutes it took to read the brief opinion, Ruth Ginsburg realized that a new chapter in her career was about to begin.

——

Charles E. Moritz lived in Denver and worked as a book editor. In 1958, Moritz, who never married, brought his elderly mother to live with him, hiring a part-time caregiver a few years later. Under the tax law at that time, a single woman who paid for the care of a dependent could take a deduction; a single man who made the same expenditure could not. Representing himself before the tax court, Moritz wrote in a one-page brief, “If I were a dutiful daughter instead of a dutiful son, I would have received that deduction.
That makes no sense.” (Both Ginsburgs later described Moritz’s homemade brief as one of the finest they’d ever seen.)

After reading the case, Ruth said to Marty, “Let’s take it.” The husband and wife represented Moritz pro bono and won their appeal in the Tenth Circuit, in Denver. The Court found that Moritz was entitled to receive the same deduction as a woman would have received. (It came to about $600.) As it happened, though, by the time the case was decided, Congress had prospectively changed the law to eliminate that particular sex-based differential; the legal issue now appeared to be moot. But Erwin Griswold, the solicitor general under Presidents Johnson and Nixon (and the former dean of Harvard Law School), thought the Moritz decision was so significant, and so wrong, that he asked the Supreme Court to reverse the Tenth Circuit decision. Griswold told the Court that it was important to preserve the principle of treating men and women differently under the law. Take the case, the solicitor general urged, because the Tenth Circuit’s decision “casts a cloud of unconstitutionality upon the many federal statutes listed in Appendix E.”

What was Appendix E? Griswold had prevailed upon the Department of Defense to use one of its first computers to scour federal laws and regulations to find all rules “containing differentiations based upon sex-related criteria.” There were hundreds of them, and it would not have been possible for a mere law professor, in those days before simple computer databases, to track them down. The Supreme Court declined to hear the appeal, but Appendix E gave Ginsburg a road map for the next decade of her life—she wanted to undo as many of that long list of laws as possible. She later said Appendix E was a “treasure trove.” Moritz turned out to be the only case where Marty joined Ruth on a brief. He went back to tax law, and she became a founding director of
the Women’s Rights Project for the American Civil Liberties Union, as well as the first tenured woman professor at Columbia Law School.

When Ginsburg first contemplated bringing women’s rights cases to the Supreme Court, her prospects did not look promising. The Court had a long history of sanctioning discrimination against women. In 1873, the Court ruled that states had the right to bar women from the practice of law. As one justice explained, “The paramount destiny and mission of women are to fulfill the noble and benign offices of wife and mother. This is the law of the Creator.” In 1961, the Court unanimously upheld a Florida law that made jury duty mandatory for men but voluntary for women. Despite some changes in recent years, Justice John Marshall Harlan II observed, “woman is still regarded as the center of home and family life.” The question for Ginsburg was how to change this mind-set—in a Court made up of men.

But the Moritz case had given her a useful insight about how to persuade judges to strike down laws that differentiated between the sexes. She brought cases on behalf of
male
plaintiffs, not just women. Ginsburg’s larger goal, of course, was to see that men and women were treated equally under the law, but she recognized that male judges might well have an easier time ruling for their fellow men than for women. Many of the laws that ostensibly favored women were based on outmoded stereotypes about how families and society were organized. She looked for cases that displayed such archaic biases.

In the first case Ginsburg argued before the Supreme Court, Sharron Frontiero, a lieutenant in the air force, applied for housing and medical benefits for her husband, whom she claimed as a dependent. Under the law, male officers could automatically claim their wives as dependents, but women had to prove that their husbands were dependent on them. In 1973, the Supreme Court in
Frontiero v. Richardson
ruled 8–1 in Ginsburg’s favor. As Brennan wrote in the lead opinion, “There can be no doubt that our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of ‘romantic paternalism’ which, in practical effect, put women not on a pedestal, but in a cage.”

Two years later, in
Weinberger v. Wiesenfeld
, Ginsburg successfully argued in the Supreme Court against a provision in the Social Security Act that denied to widowed fathers benefits afforded to widowed mothers. “Obviously, the notion that men are more likely than women to
be the primary supporters of their spouses and children is not entirely without empirical support,” Brennan wrote again for a unanimous result. “But such a gender-based generalization cannot suffice to justify the denigration of the efforts of women who do work and whose earnings contribute significantly to their families’ support.”

Ultimately, Ginsburg won five of the six cases she argued before the Supreme Court and became known as the Thurgood Marshall of the feminist movement. In light of Ginsburg’s eminence, it was no surprise that Jimmy Carter named her to the D.C. Circuit in 1980, and Clinton nominated her for the Supreme Court in 1993.

There were other, less happy parallels between the careers of Marshall and Ginsburg. Marshall became famous in the 1950s when he led the legal effort to end segregation; his greatest success came in 1954, when he won the epic case of
Brown v. Board of Education
, which ended the doctrine of “separate but equal” in public education. President Johnson named Marshall to the Court in 1967, just before Richard Nixon’s four appointments ended the era of liberal hegemony. Consequently, Marshall spent most of his twenty-four years as a justice trying to hang on to the gains of the Warren Court years. It was neither easy nor enjoyable. He was not always successful, and his persistent health problems compounded his unease on the bench. That he was replaced by Clarence Thomas—whose politics Marshall abhorred—capped the disappointments of his tenure.

Ginsburg joined the Court after Rehnquist became chief justice. Though Rehnquist never succeeded in achieving his greatest judicial goals—overturning
Roe v. Wade
and ending race-conscious affirmative action—he won a great many more cases than he lost, and Ginsburg, like Marshall, often found herself in dissent. She did have occasional triumphs, none sweeter than the VMI case. The Virginia Military Institute, which was funded by taxpayers, admitted only men as cadets. In a 7–1 decision in 1996, the Court struck down the single-sex policy at VMI as a violation of the equal protection clause. Ginsburg’s opinion gave her the rare pleasure of surveying the history of sex discrimination law at the Court and citing several cases that she herself had argued. “ ‘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,” she wrote. “But such classifications may not be used, as they once were, to create or perpetuate the legal, social, and economic inferiority of women.” (Rehnquist, knowing how much the issue meant to Ginsburg, assigned the opinion to her. Scalia dissented. Thomas recused himself from the case because his son was a cadet at VMI.)

Triumphs like the VMI case were few. Ginsburg, like Marshall, suffered serious health problems. Over the years, many had been fooled by Ginsburg’s fragile appearance. She barely topped five feet and weighed less than a hundred pounds, but she was as tough, in her way, as an NFL linebacker. (In this area and others, Marty was a diligent steward of his wife’s good name. He once surprised a reporter with the question, “How many push-ups can you do?” When the reporter stumbled for a response, Marty Ginsburg said, “My wife can do twenty-five—and you wrote that she was ‘frail.’ ”)

In 1999, Justice Ginsburg was diagnosed with colon cancer. Over the next several months, she went through radiation and chemotherapy but never missed a day on the bench. During this period she received enormous support from O’Connor, who had been treated for breast cancer in 1988. The shy Ginsburg and charismatic O’Connor appeared to have little in common, including their judicial philosophies, but the first and second women on the Court shared a warm friendship. In 2005, O’Connor’s departure from the Court hit Ginsburg hard, especially since Alito ended up as her replacement. As Ginsburg often said, it had never occurred to her that she would ever be the only woman on the Court.

When Ginsburg took her seat in October 2006, she was already melancholy. There was worse news. Marty had cancer again. And for the first time in the Roberts era, the most incendiary topic of all had returned to its docket—abortion.

The Court’s 1973 decision in
Roe v. Wade
was rooted in a ruling that came eight years earlier. The result in
Griswold v. Connecticut
was not especially controversial, but the reasoning behind it was and remains a flashpoint of constitutional debate. (
Griswold
the case should not be confused with Erwin Griswold, the onetime solicitor general and dean of Harvard Law School.)