26 October, 2015Issue 29.2LiteratureNon-fiction

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Sisters in Law

Ryan Azad

Sisters in Law: How Sandra Day O’Connor and Ruth Bader Ginsburg Went to the Supreme Court and Changed the World
Linda Hirshman
Harper, 2015
416 pages
ISBN: 978-0062238467




Much progress has been made in the women’s rights movement in recent decades; so much so that it is often difficult to remember how far we have come. Linda Hirshman highlights the harsh realities of women lawyers’ lives and careers while telling the story of Sandra Day O’Connor and Ruth Bader Ginsburg—two women who did more than perhaps anyone else in their time to increase and improve the rights of women. As the first two women appointed to the United States Supreme Court, O’Connor and Ginsburg were incredibly effective and influential lawyers. Not only did they litigate for and model the possibility for women to succeed, but they did so as pioneers—Ginsburg as one of nine women in her law school class, and O’Connor as one of four. For anyone interested in the United States Supreme Court, women’s history, or both, Hirshman’s tale of O’Connor and Ginsburg is a fascinating one.

A superficial study of their lives reveals the two women to be opposites. Ginsburg, born and bred in Brooklyn and daughter of a Russian-Jewish immigrant, was a former professor and litigator before rising to the high court as one of its most liberal members. O’Connor, in contrast, was raised on a Western ranch and was a life-long Republican who served on the Arizona Senate. Hirshman’s account, however, challenges this traditional narrative and presents a compelling look at the ways in which their aspirations and contributions were more similar than different.

Hirshman’s book opens with accounts of the two women’s early lives, filled with the experiences that taught them what it would take to succeed in the world in which they lived. The first is at the Day family’s Lazy B Ranch, where a fifteen-year-old Sandra gets a flat tire while driving across the ranch to deliver lunch to her father. When she does finally manage to change it—by jumping on the lug wrench until it loosens the lug nuts—her father expresses no sympathy, telling her she should have started the drive earlier.

Ruth did not escape her youth without trials either. Foreshadowing a life of health troubles for both her and her husband, she received news at the age of fourteen that her mother was diagnosed with cervical cancer. Four years later, on the day before her daughter graduated sixth in her high school class, Ruth’s mother passed away. Ruth would go on to thank her mother while accepting her nomination to the Supreme Court, saying that she “was the bravest and strongest person I have known…who was taken from me much too soon.” To move beyond traditional roles for women would be no easy task, and the early lives of Ginsburg and O’Connor would prepare them for the difficulties that lay ahead.

As they went on to attend top law schools—Ginsburg at Harvard and O’Connor at Stanford—both women learned firsthand about the challenges they would face for the rest of their lives, simply for being women. Despite having top credentials in law school and serving as editor of the law review, O’Connor quickly found that a job would not be handed to her. After over forty exchanges with employers who told her that they did not hire women, O’Connor finally received a yes—an offer as a legal secretary at the international law firm Gibson, Dunn & Crutcher, which she quickly turned down. In the end, O’Connor had no other option than to begin her career by working for free.

Ginsburg started down the same road. Though recommended by some of Harvard’s top faculty for a prestigious Supreme Court clerkship, Ginsburg was rejected by Justice Felix Frankfurter because “I’m not hiring a woman.” Though she eventually found her way into academia at Rutgers Law School, Ginsburg was forced to hide her pregnancy by wearing oversized clothes in order to remain eligible for tenure. Through these anecdotes, Hirshman demonstrates how profound and widely accepted was sex discrimination. The biting sexism that the women faced made it near impossible for them to build successful careers. Ginsburg and O’Connor, however, used these experiences of discrimination to inspire their use of the law as a tool for establishing equality.

The book is at its most compelling when it juxtaposes both women’s careers before joining the Court against the women’s rights movement more broadly. Hirshman begins with Ginsburg, and compares the future Supreme Court justice to Mozart and Jane Austen, writing that just as “Mozart had, by many accounts, five operatic masterpieces” and “Jane Austen’s reputation rests on five novels…In five landmark cases over less than a decade, [Ginsburg] largely transformed the constitutional status of women in America.” In one of these cases, Weinberger v. Wiesenfeld, Ginsburg challenged the United States government’s policy of only giving Social Security assistance to females, not males, and in doing so delivered what one Supreme Court clerk at the time called “the best oral arguments we heard the entire term.” Thanks to Ginsburg’s efforts, the Court’s majority opinion declared that Social Security would no longer discriminate between widows and widowers based on their sex.

Meanwhile, O’Connor contributed to social change in her own way. Though Hirshman shows noticeably less effusive praise for O’Connor, she writes of her accomplishments in the Arizona state senate, such as helping repeal the state law that limited women to an eight-hour workday. As the Republican majority leader in the Arizona state senate, O’Connor revised the state’s community property laws to allow women rights of management over marital property and to remove male-only language in the laws.

The two women’s power to enact social change reaches a crescendo when O’Connor, followed by Ginsburg twelve years later, ascend to the highest court of the land. But even with women on the Supreme Court, the nation was anything but cured of sex discrimination. Hirshman describes an all-but-forgotten case in which a female graduate from Columbia Law School, turned down by the powerhouse firm King & Spalding, sued for discrimination. The details of the case are nearly unimaginable today: the firm would award one of its female employees a prize for “a body we’d like to see more of”, and held a bathing suit contest—a more modest version of the originally planned wet T-shirt contest—for its summer interns. These anecdotes provide a vivid picture of what O’Connor and Ginsburg were up against in their lifelong struggle for women’s rights, and serve as a reminder of the modern challenges that remain today. According to one recent report by the American Bar Association, women lawyers are outnumbered two-to-one by their male counterparts, and once in the workplace, earn only 80% of men’s salaries.

Despite these challenges, and despite what many view as their opposing ideological positions, O’Connor and Ginsburg worked together on the Court to bring about change. While not always seeing eye-to-eye in how to institute such change, the two worked in unity for the betterment of their cause. Hirshman describes one case in which the Court was deciding how severe sexual harassment had to become before it violated the Civil Rights Act. While O’Connor’s majority opinion took a cautious approach, requiring the workplace to be abusive before a victim could sue, Ginsburg joined immediately in an effort to garner support for the decision. Ginsburg’s strategy, Hirshman writes, was to “find harmony, even in the face of an explicit rejection.”

And though the women were by no means best friends, their unity of purpose caused them to maintain a strong sense of caring for one another. The most powerful example of this is during a case concerning the Virginia Military Institute (VMI), an all-male institution since before the Civil War, which was sued for not allowing female students. After hearing oral arguments for the case, the senior justice in the majority originally assigned O’Connor to write the opinion. But in a moment of great generosity, O’Connor demurred, saying, “this should be Ruth’s.” The opinion would go on to be known as Ginsburg’s “crown jewel”, finding that almost no discriminatory scheme based on gender can be constitution unless it is for an “exceedingly persuasive justification.”

Hirshman’s book unfortunately loses its steam after O’Connor’s departure from the Court, transforming Ginsburg’s role into the “great dissenter.” Further, the last pages of the joint biography turn from a narrative to an attack on the Roberts’ Court’s rulings. Hirshman calls the Court’s 2012 decision in Fisher v. University of Texas at Austin “unprincipled…a vote for obfuscation, professional misbehavior, and constitutional error.” Hirshman could have improved these chapters by expanding the focus on the two women’s legacy. A four-page final chapter concludes by writing quite correctly that O’Connor “made it easier for Elena Kagan, the first female dean at Harvard Law School, the first woman to serve as solicitor general, and the fourth [woman on the Supreme Court].” By expanding upon this theme, Hirshman could have intensified her focus on how the two female justices to join the Court after O’Connor and Ginsburg contributed to the work that their predecessors began.

Hirshman’s book is still a timely and thought-provoking read. The stories Hirshman tells, though not novel, are masterfully strung together to create a compelling narrative of Ginsburg and O’Connor’s lives. And they are told in a manner extremely accessible for non-lawyers, describing background principles of the law in an easy-to-understand way. While it remains to be seen how many future female Supreme Court justices will be added to the Court, Hirshman has appropriately told the story of the first pair.

Ryan Azad is studying law at the University of California, Los Angeles.