The use of a suspect classification test by courts in disputes about sex discrimination was precisely what Ginsburg was aiming to establish. As director of the ACLU’s Women’s Rights Project she used the 1970s to do just that. She also succeeded in a second goal of her campaign, to persuade the members of the Supreme Court that stereotyping women hurt women and men. Moritz, brought to a lower court, had been the first case where she had made this argument. The case of Weinberger v. Wiesenfeld, argued at the Supreme Court, was the next.
Wiesenfeld involved a young, widowed dad who was denied Social Security Childcare benefits because he was not … a mother. Ginsburg argued the case in 1975 and, again, won an unanimous decision in Wiesenfeld’s favor. Ginsburg continued arguing gender equality cases before the high court through 1979. On April 8, 1980 President Jimmy Carter, fulfilling a campaign pledge to create a more diverse federal judiciary, nominated her to the U.S. Court of Appeals for the District of Columbia Circuit.
Strum leaves off with this good news, having left us with a book that is essential for understanding the jurisprudential revolution that occurred in the 1970s, and Ruth Bader Ginsburg’s role in making it happen. (On Account of Sex includes a very useful chronology and bibliographic essay.)
Strum’s account of RBG’s pre-court years will leave readers wanting to know more about activist women lawyers. Dahlia Lithwick provides an introduction to the work of several women attorneys in Lady Justice: Women, the Law and the Battle to Save America. Lithwick, a graduate of Stanford Law School, a contributing editor at Newsweek as well as senior editor at Slate, is passionate in her views. In the opening chapters of Lady Justice she takes up the stories of women who stood up to the policies of the Trump administration and its threats to democracy. She begins with how Sally Yates, Trump’s acting attorney general, challenged the new administration after the president issued his executive order banning Muslim travelers.
Becca Heller, the co-founder of the International Refugee Assistance Project, also felt compelled
to step forward as the result of the travel ban, and she raises one of the book’s several significant questions: the relative balance between court action and public action. She tells Lithwick, “[Trump] didn’t roll back the first executive [travel] order in response to a court order or a congressional inquiry review …. [the administration] rolled it back … [because of] chaos [spontaneous demonstrations] at the airports.” (pp. 55-56)
Lithwick keeps the question of whether courts work for good, and when, front and center as she highlights the efforts of other activists including Robbie Kaplan, Brigitte Amiri, and Vanita Gupta. Some, like Heller believe that the law can be distorted and manipulated. Vanita Gupta argues that litigating is important “but I know firsthand that it isn’t the thing that builds power.” (p.149) Others, however, remain “ardent institutionalists.” (p. 66) The stories of how these women have stepped in to promote justice are all timely but none more so than those told about Stacey Abrams and Nina Perales.
Political activist and electoral candidate Stacey Abrams has become a national figure through her fight to end racialized voter suppression and to reform voting laws. Telling her story permits Lithwick to focus on a lawyer who has put community organizing and education as well as electoral politics ahead of litigating. In contrast, Nina Perales, head of voter rights litigation at the Mexican American Legal Defense Fund, has spent decades in court addressing the same problems that concern Abrams including redistricting.
Taken together, the stories in Lady Justice – including Lithwick’s compelling personal contemplation of #Me Too, demonstrate the varied ways women members of the legal profession use their training, and their passion, in the service of justice.
Conservatives have long wanted to secure control of the Supreme Court, pushing for this
outcome decades before Donald Trump’s election. Trump, however, made it happen when he had the unusual opportunity of nominating three justices to the court – conservative jurists: Neil Gorsuch (2017), Brett Kavanaugh (2018), and Amy Coney Barrett (2020). These justices have joined Samuel Alito, John Roberts, and Clarence Thomas in forming a generally predictable conservative voting coalition. Pulitzer prize winning journalist Linda Greenhouse who, for many years, covered the Supreme Court for The New York Times and is now the Knight Distinguished Journalist in Residence at Yale Law School, describes in detail how these six jurists are creating, in the words of several journalists, a “pivotal” shift in the thinking of the high court.
Greenhouse opens Justice on the Brink with the death of Ruth Bader Ginsburg and Trump’s rapid-fire nomination of Barrett (he made his announcement before RBG was buried). She selects the 2020-2021 court term to demonstrate the impact of this new far-right leaning alliance on the nation’s constitutional law. Further, as her subtitle – “A Requiem for the Supreme Court” — suggests, Greenhouse argues we are viewing the intense politicization of this third branch of government, a branch meant to be apolitical and, as such, the death of the institution as we know it.
The 2020 term provided cases that conservatives eagerly awaited. The court had agreed to hear appeals involving religious rights, voting rights, the Affordable Care Act, gay rights, COVID restrictions, and reproductive rights. Greenhouse introduces each case, describing its historical background and oral argument. Later, as the court announces its decision, she gives the vote and explains the reasoning offered by the majority and dissenters. With each new outcome she builds the case for a politicized court.
Greenhouse also, in important asides, analyzes the particulars of each justice’s position. She contrasts the conservatives with one another: Alito is valued for his reliability, “a highly effective player of the long game ….There was no chance he would drift toward the middle like John Roberts.” (p.89) Thomas chases “chimerical legal theories” and has libertarian tendencies. Gorsuch is an “unrestrained firebrand who poured rhetorical gasoline,” while fellow newcomer Kavanaugh appears intent “on persuading the world that he really had looked at all sides of every question before embracing the conservative position.” (p. 213) Finally, Greenhouse describing John Roberts as fiercely attempting, in his sixteenth year as chief justice, to hold onto the leadership of his court and to break out of his jurisprudential isolation.
Justice on the Brink is the perfect book to have read in order to understand the current
Supreme Court docket and its possible outcomes. And taken together, Strum, Lithwick and
Greenhouse’s studies are important contributions to the layperson’s understanding of the
individuals who shape our law as attorneys and judges as well as the activists who sometimes go where others fear to tread.
Jill Norgren is emerita professor, John Jay College of Criminal Justice and the Graduate Center, The City University of New York. Most recently, she is the author of Stories from Trailblazing Women Lawyers.
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