A Walk through History, with Justice Ginsburg as Guide
The Supreme Court justice speaks at a Radcliffe Institute conference on gender and the law.
Case by case, Ruth Bader Ginsburg, L ’59, has chipped away at laws that have disadvantaged women and reinforced notions of men as breadwinners and women as dependents: first by arguing cases before the Supreme Court as an attorney for the American Civil Liberties Union (ACLU), later in her service as a justice on that very court.
Slowly, things began to change. Today, "it's amazing how the laws of that genre are all gone," Justice Ginsburg said last week. Speaking during "Gender and the Law: Unintended Consequences, Unsettled Questions," a conference organized by the Radcliffe Institute for Advanced Study, the associate justice led listeners through some of the historic cases that overturned those laws.
Ginsburg's fellow panelists wondered whether young women today realize just how much has changed. They "have had the privilege of coming of age professionally in a world that Ruth Bader Ginsburg helped to make," said moderator Linda Greenhouse ’68, who spent three decades covering the Supreme Court for the New York Times (read a review of her book on Justice Harry Blackmun here).
None of the women on the panel holds a law degree from Harvard: Ginsburg attended Harvard Law School, but finished her degree at Columbia in 1959. Sandra Lynch—who last year became the first female chief judge of the U.S. Court of Appeals for the First Circuit—recalled attending Boston University Law School (from which she graduated in 1971) when it was considered radical for admitting enough women to constitute 10 percent of each incoming law class. At the time, Harvard and Yale, where panelist and U.S. district judge Nancy Gertner earned her degree the same year, admitted far fewer women—Ginsburg was one of nine women in a class of more than 500.
Lynch described the open hostility that some of her law professors directed toward female students; Gertner recalled interviewing for a prestigious clerkship and being asked whether she ever planned to marry and have children. "I told him, 'Of course not,' " she recalled. (She now has two.)
As Drew Faust, former dean of the Radcliffe Institute and the first female president of Harvard, listened in the first row, Ginsburg described how back in 1868, the Fourteenth Amendment's drafters planted the seed of the women's-rights movement—probably unwittingly, since their focus was not on gender but on giving full citizenship to "all persons born or naturalized in the United States" regardless of race.
Ginsburg came of age as an attorney at the same time women's rights were first coming to the Supreme Court's attention. Until 1971, she said, the court had no doctrine on gender discrimination. That year, Ginsburg wrote a brief in Reed v. Reed, which challenged an Idaho probate law that said "males must be preferred to females" in appointing estate administrators. (At the time, many states had similar language on their books, she recalled.) It was the first Supreme Court case she worked on in which the court issued a decision, and was an auspicious start: the court ruled in her client's favor.
Ginsburg founded the ACLU Women's Rights Project in 1972 and, in the eight years before her appointment as a federal judge, argued or wrote briefs in more than a dozen major women's-rights cases.
Especially in the beginning, she said, it was important to choose sympathetic cases: those whose plaintiffs were demographically similar to the Supreme Court, and in some cases similar in gender to members of the court. She therefore took on some cases involving discrimination against men, on the premise that any discrimination on the basis of gender should be eliminated from statutes—not just discrimination against women. In one such case, 1975's Weinberger vs. Wiesenfeld, the court struck down a federal law that had entitled widows, but not widowers, to child-in-care benefits after a spouse's death.
And it was important to recognize that full equality of citizenship carried responsibilities as well as rights, Ginsburg said, citing Duren v. Missouri, a Supreme Court case she argued, and won, in 1979. In what would be the last case she argued before the court (she was appointed a federal judge in 1980, and served until her 1993 Supreme Court appointment), she maintained that a Missouri law making jury duty optional for women should be struck down because it treated women's service on juries as less valuable than men's.
The days of explicit discrimination are so far gone, Lynch said, that the stories seem implausible to today's young women. Back then, Gertner chimed in, "everything seemed so clear." Today's discrimination is more subtle, she said.
For these reasons, Lynch said she worries that young women today will fail to see threats to their equality and lose ground inadvertently. In 2007, she noted, the Supreme Court ruled 5-4 that a 180-day statute of limitations applied to gender-discrimination claims against employers—a decision Congress overruled this past January with legislation stating that the clock begins ticking on the statute of limitations at the moment a person realizes he or she has been discriminated against. The plaintiff in the case, Lilly Ledbetter, did not learn for 19 years that she had consistently been paid less than any of her fellow managers, all of whom were male.
Greenhouse wondered aloud whether similar concerns might have led Justice Ginsburg to read her dissents aloud from the bench, an unusual practice she used twice during the 2007 session. (Ginsburg was relatively circumspect in her reply, but her friend Cynthia Fuchs Epstein, a sociologist at the City University of New York, said in a 2007 Times article Greenhouse wrote on Ginsburg's oral dissents: "Now she is seeing that basic issues she’s fought so hard for are in jeopardy, and she is less bound by what have been the conventions of the court.”)
Ginsburg admitted that her zeal for gender equality explained, at least in part, her quick recovery from surgery for pancreatic cancer earlier this year. She returned to work less than three weeks after the surgery, and the same week attended a major public address by President Barack Obama. When asked by USA Today why she insisted on attending, she answered, "I wanted people to see that the Supreme Court isn't all male." (She is, of course, the second female justice; Sandra Day O'Connor was appointed in 1981 and retired in 2006.)
However, Ginsburg voiced less concern about backsliding than her fellow panelists. She closed by saying that given how much has changed in a single generation, "I remain optimistic about the potential of the United States."
In a panel on single-sex education, Kimberly Robinson, J.D. ’96, a professor at Emory University's law school, detailed the recent resurgence of gender-segregated programs in private and public schools.
This is cause for concern, said Emily J. Martin, deputy director of the ACLU Women's Rights Project, which is challenging 2006 revisions to the Title IX regulations that govern single-sex schools. These revisions expanded the conditions under which such schools can be created.
Even if there are some excellent single-sex programs in the world, it's difficult or impossible to construct a legal regime that permits those excellent programs without opening the door to a rash of programs in public schools based on what I think are insidious and false notions of gender difference that threaten to seriously compromise equal educational opportunity for boys and girls. There is a reason for tight legal restrictions on sex segregation.
Without extremely close monitoring, it is all too easy for notions of gender bias to creep in, the panelists said, referencing the 1996 Supreme Court case that struck down the Virginia Military Institute's men-only admissions policy.
The court used the rationale that the school, which receives public funding, had not provided an equivalent program for women, but the school's real problem was something harder to quantify—an intensely misogynistic culture—said Duke University law professor Katharine Bartlett, A.M. ’69. But when Bartlett voiced disappointment that the court hadn't gone further in its decision and prescribed what should and should not be allowed in single-sex educational programs, Lynch responded with a sharp warning against expecting judges to legislate from the bench. "There is a need for regulatory clarity," she said. "Courts decide cases. Courts do not provide regulatory clarity overall."
In expecting courts to provide this clarity, she said,
you have shifted the focus of responsibility in our political system off the political branches and onto the judiciary. That is inherently a very bad thing to do. We are there to uphold the Constitution and to uphold the laws. You should not, out of convenience, thrust onto the courts things that are properly the responsibility of some other branch.
The Virginia Military Institute case, Lynch said, "didn't answer a number of questions it would be valuable to answer" because "the parties didn't raise them. No evidence was introduced. Courts are captive to this small body of information and the self-interest of the parties who are the litigants."
Smith professor of law Martha Minow argued that it may be time to rethink how the United States, as a society, evaluates the success of educational programs. If a single-sex program raises scores in reading and math, she said, it's still important to ask how it helps students with "twenty-first-century skills like teamwork and getting along with others."
Martin used harsh words in describing the work of single-sex-education advocates Glenn Sacks and Michael Gurian. Based on "overbroad generalizations and what I think it's fair to call junk science," she said, these advocates make the case that "boys' brains and girls' brains are so different that they can't possibly both succeed in the same classroom." And their arguments are influential, she said: "This is becoming, more and more, conventional wisdom among educators." Minow commented: "It's troubling to think that the old ideas about natural differences between sexes come in to fill in the gaps because we don't know to solve a hard problem."
In a panel on "The Market, the Family, and Economic Power," Sharon Rabin-Margalioth, a professor of law at Israel's Radzyner School of Law (and visiting professor at New York University), reminded listeners that a wage gap still exists between men and women in the United States.
She said women are paid, on average, 20 percent less than men, and summarized for her audience arguments that courts have accepted, in recent cases, for paying women less than men for the same work. Those arguments, she said, include:
- taking into account prior wages as a guideline for pay: the argument that to attract desirable employees, the employer must match their earlier pay, so if men earned more at their previous jobs, this justifies paying them more;
- setting salaries based on negotiation—so if male employees more frequently negotiate upward from an employer's original offer, they end up being paid more; and
- matching external offers to keep valued employees—so if men are more likely to use such offers as a bargaining chip, they command higher pay.
"Courts are buying into these arguments," she said, "because they feel that these arguments sever the connection between sex and wages."
Rabin-Margalioth suggested that the U.S. legal system shift the burden of proof: instead of leaving it up to the employee to prove that her employer's pay scheme is discriminatory, she said, it should be incumbent on the employer to prove that a gap between male and female employees' pay is not discriminatory—in other words, when a pay gap exists, courts should assume it's due to discrimination, unless truly unusual circumstances suggest otherwise. A difference in productivity, she said, should be the only acceptable reason for a pay gap between male and female employees with the same responsibilities.
In other components of the two-day conference, panelists considered:
- women's changing role in the workplace and the family, and the law's role in those changes
- the institution of marriage and prospects for new legal frameworks
- the role of women in Muslim societies
- family-leave laws in the United States
- labor laws and their effect on women in China
- changes in how U.S. states have defined marital property and allocated it between parties in a divorce, and how those changes have affected women
- the ongoing wage gap between men and women in the United States, and
- the treatment of abortion and rape in the United States and other legal systems.
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