The late Supreme Court Associate Justice Ruth Bader Ginsburg delivered the annual Wilson Lecture at Wellesley College in 1998, and titled it “The Supreme Court: A Place for Women.” That was five years after President Bill Clinton appointed her to the court.
The Honorable Ruth Bader Ginsburg
The Supreme Court of the United States
November 13, 1998
To gain an introduction to Wellesley, I watched in the company of my Court staff, a videotape called “Hillary’s Class,” a film made by a young woman I knew in her growing up years. It is a remarkable documentary of the way things were and an aid in thinking about the way things should be.
My talk tonight centers on the same themes—the way things were, are, and will be. The setting is the place I know best nowadays; the title, The Supreme Court: A Place for Women. Let me begin with a question Justice O’Connor and I are sometimes asked. Does it make any difference that you are there? Do women judges decide cases differently by virtue of being women? As a first response, I have several times quoted, as has Justice O’Connor, the words of Minnesota Supreme Court Justice Jeanne Coyne. In her experience, Justice Coyne said, “a wise old man and a wise old woman reach the same conclusion.”
And so they do. But it is also true, I am convinced, that women, like persons of different racial groups and ethnic origins, contribute to the United States judiciary what a fine jurist, the late Alvin B. Rubin of Louisiana, described as “a distinctive
medley of views influenced by differences in biology, cultural impact and life experience.” Judge Rubin wrote those words in a mid-1970s decision, Healy v. Louisiana, a case that spelled the end of the once prevalent exclusion or exemption of women from jury service. (I had the good fortune to represent the plaintiffs in that case. We successfully urged that jury duty is both a right and obligation of all citizens – women no less than men.) A system of justice is the richer for diversity of background and experience. It is the poorer, in terms of appreciating what is at stake and the impact of its judgments, if its members – its lawyers, jurors, and judges – are all cast from the same mold. So yes, in words Justice O’Connor spoke in 1996, in her surprise appearance one night as Queen Isabel in the D.C. Shakespeare Theatre’s production of Henry V: “Happily a woman’s voice may do some good.”
A bolder prediction was made close to a century and a half ago. The prophet was Sarah Grimke, great feminist and anti-slavery lecturer from South Carolina. On a December 1853 visit to Washington, D.C., Sarah Grimke wrote this to a friend:
“Yesterday, visited the Capitol, went into the Supreme Court, not in session [W]as invited to sit in the Chief Justice’s seat. As I took the place, I involuntarily exclaimed: Who knows, but this chair may one day be occupied by a woman. The brethren laughed heartily. [N]evertheless, it may be a true prophecy.”
So Sarah Grimke’s letter concluded. And so it may.
I expect to see the day when women serve the cause of Justice in numbers fully reflective of their talent. That day, when bias, conscious or unconscious is no longer part of the scene, has already dawned in some places. Consider the exuberant comment of our Assistant Attorney General for the Office of Policy Development, Eldie Acheson:
“[W]hen I sit [at] the table in the Attorney General’s conference room with women running the senior staff meetings and women reporting on [all manner of legal] matters, I think how exciting it is just to be there; I think about how much we owe so many others – some known but many unknown – who came before and made it that much easier for all of us.”
I will recall in these remarks some of the unknown and the known who came before, or made it easier for, Sandra and me. I will speak first of women’s affiliation with the Supreme Court from the start, not as Justices, given the way things were, but as the Justices companions in life. Next, I will tell you of the first women to serve as law clerks in Justices’ chambers, then of two women who might have graced the Supreme Court’s bench, had time worked in their favor. Finally, I will return to today and my hope for the future.
The wives whose stories I will relate are Sarah Story, wife of Joseph Story, who served on the Court from 1811 until 1845, and Malvina Harlan, wife of the first Justice John Harlan, who served from 1877 until 1911. Sarah Story broke a tradition Chief Justice Marshall held dear, the boarding-house mode of living while the Court sat in the Federal City. It was Marshall’s idea that the Justices should reside under one roof, continuing discussion of cases at dinner and in common rooms, and that they should leave their wives behind. (His aim was to use the camaraderie of boarding-house life to dispel dissent and achieve a one-voiced Opinion of the Court, which he usually composed and delivered himself.)
Sarah and Justice Story did not relish their separations. So Sarah accompanied Joseph to Washington, D.C., for the 1828 Term. Chief Justice Marshall was ambivalent. He told Story it would be fine if Sarah dined with the Justices, whose circle might benefit from a woman’s “humanizing influence.” On the other hand, there was work to be done. Marshall expressed the hope that Sarah would not “monopolize” her husband. The experiment was not altogether successful. Sarah Story apparently enjoyed Washington society well enough, but her digestive system did not. And she perhaps grew tired of “waiting in the wings for conferences to cease.” She departed town before her husband, and did not return in subsequent years.
But her stay set a precedent. The boarding house culture no longer held fast. Justice John McLean, appointed in 1829, decided he would reside at home in D.C. with his wife and would not board with his brethren, and Justice William Johnson, an early dissenter, also stayed away from the group quarters. Chief Justice Marshall was not pleased. The scattering of the Justices, he anticipated, would mean more seriatim opinions, undermining the unified voice Marshall had worked hard to achieve.
By the time of John Harlan’s investiture in 1877, a Supreme Court appointment meant a move to the Capital City for all in the Justice’s immediate family, and it also meant an unpaid job for the Justice’s wife. Malvina Harlan, who described her work and days in a still unpublished manuscript, wrote of the “at home” Monday receptions Supreme Court wives were expected to hold. The callers came in numbers. Malvina Harlan wrote that she might receive as many as 200 to 300 visitors on these occasions. “At home” Mondays were more fancy than plain. Tables would be spread with salads and rich cakes. The young people might dance a waltz or two while the older folk looked on.
Malvina’s memoirs tell of an episode showing that Supreme Court wives attended to more than the social side of a Justice’s life. Justice Harlan was a collector of objects connected with American history. He had retrieved for his collection, from the Supreme Court Marshal’s Office the inkstand Chief Justice Taney had used to pen the 1857 Dred Scott decision, which held that no person descended from a slave could ever be a citizen, and that the Constitution’s due process clause safe-guarded one man’s right to hold another in bondage. It was a decision with which Justice Harlan strongly disagreed, an opinion overturned by the Civil War and the Fourteenth Amendment.
Chivalrous gentleman that he was, Harlan promised to deliver the Taney inkstand to a woman he met at a reception, who claimed a family relationship to Chief Justice Taney. Malvina thought the promise unwise, so she hid the inkstand away among her own special things, and Justice Harlan was obliged to report to the Taney relative that the item had been mislaid.
Over the next few months, the Supreme Court heard argument in the Civil Rights Cases, which yielded a judgment striking down the Civil Rights Act of 1875, an Act Congress passed to ensure equal treatment for all persons in various public accommodations. Justice Harlan, alone, resolved to dissent. He labored over his dissenting opinion for months, but “his thoughts refused to flow easily.” He seemed, Malvina wrote in her memoirs, trapped “in a quagmire of logic, precedent and law.”
Malvina, who grew up in a free state family strongly opposed to slavery, wanted her husband to finish that dissent. On a Sunday morning when the Justice was attending church services, Malvina retrieved the Taney inkstand from its hiding place, gave the object “a good cleaning and polishing, and filled it with ink. Then, taking all the other inkwells from [her husband’s] study table, [she] put the historic … inkstand directly before his pad of paper.” When Justice Harlan came home, Malvina told him he would find “a bit of inspiration on [his] study table.” Malvina’s memoirs next relate:
“The memory of the historic part [t]hat Taney’s inkstand had played in the Dred Scott decision, in temporarily tightening the shackles of slavery … in the ante-bellum days, seemed, that morning, to act like magic in clarifying my husband’s thoughts in regard to the law that had been intended … to protect the recently emancipated slaves in the enjoyment of equal ‘civil rights’. His pen fairly flew on that day and … he soon finished his dissent.”
[The life of Court spouses has changed greatly since the days I have described. Spouses do not receive “at home” callers on Monday, or any day; they pursue careers or interests of their own. Adding “humanizing” variety, two of them are men. Spouses have seats in a special section of the courtroom, and they lunch together three times a year, rotating cooking responsibility. One member much in demand as a co-caterer is my husband, super chef Martin D. Ginsburg.]
My next set of stories concern the first women law clerks to serve at the Supreme Court. You will see from these stories the large progress made from not so long ago days.
The very first woman to clerk at the Court was Lucille Lomen, engaged by Justice William 0. Douglas for the 1944 Term. It happened this way. The nation was at war, and the west coast deans who recommended clerks to Douglas found no student worthy of his consideration. Douglas wrote to the Dean at the University of Washington Law School:
“When you say you have ‘no available graduates’ whom you could recommend for appointment as my clerk, do you include women? It is possible I may decide to take one, if I can find one who is absolutely first-rate.”
The Dean recommended, and Douglas hired, Lucille Lomen. Douglas later reported that Lomen was “very able and very conscientious.” She served after her clerkship as an assistant Attorney General for the State of Washington, and later became General Electric’s counsel for corporate affairs. [Her Washington Law Review note on Privileges and Immunities under the Fourteenth Amendment, published in 1943, has had remarkable staying power. I have it on reliable authority that Lucille Lomen’s student note appears this very semester on Harvard Law School Professor Laurence Tribe’s Constitutional Law seminar reading list.]
Six years after Lucille Lomen’s 1944 to 1945 service, Justice Douglas again thought about hiring a woman. He had in mind a “two-for.” As he described his thinking:
“It may be that [my] second law clerk should be someone who is an accomplished typist, someone who can a half or three-quarters of the time help Mrs. Allen [Douglas’s secretary]. In this connection it might be desirable to consider getting a woman [law school graduate], a woman who can qualify as a lawyer and who can assist the regular law clerk for part of the time and help Mrs. Allen part of the time. If that procedure is worked out, the woman selected might stay for more than one year, say two years, perhaps even three.”
[Now before you put down Justice Douglas for hopelessly chauvinist thinking, consider this. If push comes to shove, a Justice generally can do for herself what a law clerk does. But our secretaries are the people who keep us going. At the Supreme Court, they manage the office and contend with the ceaseless paper flow and mail floods, sparing us from countless distractions so we can concentrate on the job of judging.]
Justice Douglas never found his double duty person, and it was not until the 1966 Term, over two decades after Lucille Lomen’s service, that another woman came to the Court as a clerk. (I have it on reliable authority, however, that the idea was kept alive. In 1960, one of my law teachers, who selected clerks for Justice Frankfurter, suggested that I might do. The Justice was told of my family situation – I was married and had a 5-year old daughter. For whatever reason, he said No. In recent years, I might add, the Justices have seen from the best evidence – law clerks they have engaged – that motherhood need not impede diligent service. This Term I expect to add to that evidence – one of my law clerks is the mother of two children, both under age 3.)
For the 1966 Term, Justice Black engaged Margaret Corcoran, daughter of a prominent Democrat, Thomas Corcoran, known around town as Tommy the Cork. Black was not entirely pleased with Margaret’s performance. He thought she didn’t work hard enough. One time, for example, she told him she couldn’t review 35 cert. petitions (petitions for Supreme Court review) over the weekend, because of plans to attend VIP dinners with her father. She was, in these extracurricular activities, a dutiful daughter. Corcoran was a widower and sometimes needed a substitute for a spouse at special events.
In 1968, Martha Field, now professor of law at Harvard, clerked for Justice Fortas, and in 1971, Barbara Underwood, once a law professor, later a prosecutor, and now Deputy Solicitor General, clerked for Justice Marshall. Justice Douglas took the lead again in the 1972 Term, when his selection committee engaged two women. He wrote when told the news:
“The law-clerk-selection committee has informed me that my two clerks for next year are women. That’s Women’s Lib with a vengeance!”
That same Term, 1972, Justice White engaged a woman as a law clerk and the following year, then Justice Rehnquist did so too. The 1972 Term, [Armstrong and Woodward relate in The Brethren] was not a vintage year in Justice Douglas’ chambers. Midway through the Term, one of the clerks asked the Justice about a note she had received from him. “Excuse me, Mr. Justice, ” she said, “I’ve been looking at this note[,] I’m afraid I don’t understand it.” “I’m not running a damn law school” the Justice responded, “read my opinions on the subject.”
The clerk sent her boss a note: “I’m very sorry I made a mistake on this case. I’m sure there will be other times this year when I will make other mistakes. However, I’ve found that civility in professional relationships is most conducive to improved relationships. You can afford to be basically polite to me.”
Things went down-hill from there. Eventually, the Justice hired a third law clerk, a young man, with whom he had better rapport. The other woman engaged by Douglas for the 1972 Term got along well enough with her boss, but had a problem of a different sort. She liked a young man who worked on the Court’s staff, a man whose father served as messenger for Chief Justice Burger. The young man had been active in urging improvement in Marshal’s Office working conditions. Douglas’ clerk and the young man first dated, then began living together. He was black, she was white. He continued to press for better working arrangements for staff people. He was fired; she kept her job. The two eventually married.
After the 1973 Term, women law clerks no longer appeared as one-at-a-time curiosities. From 1973 through 1980, the Justices engaged 34 women and 225 men as law clerks. From 1981, Justice Sandra Day O’Connor’s first Term on the Court through 1997, 162 women and 446 men were hired. In the current Term, 1998-1999 the law clerk contingent for active Justices included 13 women and 21 men.
If one recalls, for example, that until 1971 no sex-based differential in any state or federal law had ever been found unconstitutional by the Supreme Court, that in some States, women were not called for jury service on the same basis as men until the end of the 1970s, while in others, parents were required to support sons three years longer than daughters, and that Louisiana retained its husband is “head and master” of the community rule until the start of the 1980s, it is not surprising that the High Court’s bench remained all male until President Reagan’s historic appointment of Sandra Day O’Connor in 1981. But the idea that “Haply a women’s voice [might] do some good” in our Marble Palace was not a sudden realization. First President seriously to consider the prospect was Harry Truman.
The woman President Truman had in mind was Florence Ellinwood Allen, first woman ever to serve on Ohio’s Supreme Court, later, in 1934, first woman ever to be appointed to an Article III federal judgeship, a seat on the U.S. Court of Appeals for the Sixth Circuit. President Truman was discouraged by the negative reaction of the Chief Justice (Fred Vinson) and the Associate Justices he consulted. Allen had gained universal respect for her intelligence and dedicated hard work. But the Brethren feared that a woman’s presence would inhibit conference deliberations where, with shirt collars open and shoes off, they decided the great legal issues of the day. Allen herself was a realist. She had seen great changes in Ohio and the nation, most notably, women’s suffrage, won first at the city, then the state, then the national level, a struggle to which Allen devoted her bright mind in years of tireless endeavor. It was too soon, she understood. A Supreme Court appointment “will never happen to a woman [during my lifetime],” she said.
The second woman ever to be appointed to a U.S. Court of Appeals was Shirley Mount Hufstedler, who served on the Ninth Circuit from 1968 until President Carter named her first Secretary of the newly created Department of Education in 1979. President Carter changed the face of the U.S. Judiciary. He appointed women and members of minority groups in numbers, not by compromising quality, but by looking for, and drawing on the talent of all of the people of our great nation. Since his brave initiative, there has been no return to old ways. During Carter’s Presidency, Shirley Hufstedler was considered by many to be the top candidate (not just the top female candidate) for Supreme Court appointment. A New York Times reporter wrote of her:
“Scratching around the soil for detractors yield[ed] no worms … [S]he appears to have no enemies, not a single person … came up with anything less than praise.”
But no vacancy opened on the Court in Carter’s term. Great lady that she is, Shirley spoke at the Senate hearings on my nomination; on that occasion, she brilliantly recapitulated the progress women have made toward true partnership with men in U.S. society.
Move forward with me now to June 25, 1996, when the Supreme Court released its judgment in a case called United States v. Virginia, the VMI case. As I read the summary of the opinion aloud in Court, I looked across the bench to Sandra, when I referred to her pathmarking opinion in a 1982 case, Mississippi University for Women v. Hogan, a decision holding unconstitutional the exclusion of qualified men from a highly-regarded State School of Nursing. The exclusion, Justice O’Connor observed, tended to “perpetuate the stereotyped view of nursing as [a job for women only]”; instead of advancing women’s welfare, Justice O’Connor recognized, this occupational reservation may in fact have helped to hold down wages in the nursing profession.
Justice O’Connor, in 1982, close to the end of her first year as first woman on the U.S. Supreme Court, announced the Mississippi Nursing School opinion for a Court that divided 5-4. The vote in 1996 in the VMI case was 7-1. with the Chief Justice writing a concurring opinion in support of the judgment. What occurred in the years intervening from 1982 to 1996 to make the VMI decision not a close call?
Justice O’Connor offered this clue in her 1991 Madison Lecture at New York University:
“For both men and women the first step in getting power is to become visible to others, and then to put on an impressive show… As women achieve power, the barriers will fall. As society sees what women can do, as women see what women can do, there will be more women out there doing things, and we’ll all be better off for it.”
Harvard President Neil L. Rudenstine made a point in harmony with Justice O’Connor’s when he spoke at a Radcliffe College Convocation in March 1994:
“We [now] know that talents of all kinds – analytic, creative, athletic, argumentative, and entrepreneurial – are distributed in essentially equal portions – and an infinite variety of combinations – among women and men alike.”
Public understanding had advanced so that people could perceive that the VMI case was not really about the military. Nor did the Court question the value of single-sex schools. Instead, VMI was about a State that invested heavily in a college designed to produce business and civic leaders, that for generations succeeded admirably in the endeavor, and that strictly limited this unparalleled opportunity to men.
What caused the Court’s understanding to dawn and grow? Judges do read newspapers and are affected, as distinguished Constitutional Law Professor Paul Freund once said, not by the weather of the day, but by the climate of the era. Since the start of the 1970s, Supreme Court Justices, in common with judges on other courts, have become increasingly aware of a sea change in United States society. Their still evolving enlightenment has been advanced by the briefs filed in Court, the women lawyers and jurists they nowadays routinely encounter, and perhaps most deeply by the aspirations of the women, particularly the daughters and granddaughters, in their own families and communities.
The Court now has in the Justice’s robing room and in the lawyers’ lounge women’s bathrooms equal in size to the men’s. Our Chief, after a 1993 rehearsal I attended, is now comfortable addressing our Attorney General, as she prefers, not General, but Ms. Reno. Is the progress complete? Not quite when the tally shows that only 30 (13 percent) of the 227 lawyers who argued before the Court from October 1997 through June 1998 were women (up from one percent in the 1966 Term, and 5 percent in the 1976 Term). And when in 1997, our Acting Solicitor General, a distinguished Harvard Law School professor, and a former law clerk to the Chief Justice each began his response to my question at oral argument: “Well, Justice O’Connor….”
Indeed, in July 1998, one of my colleagues, with me at a meeting in Paris, called me before an assemblage of French jurists, “Justice O’Connor.” Also when the Court divides as sharply as it did last spring (April 22, 1998) in a case, Miller v. Albright, involving a woman denied citizenship because her unwed citizen parent was a father, not a mother. (Some months ago, a former law clerk, now a law teacher, told me of the response of one of her students to a spring 1998 Constitutional Law final exam question. The student wrote how, in her VMI opinion, Justice O’Connor had added some bite to the [equal protection] test in regard to gender-based classifications.)
But John O’Connor has helped me to put occasional lapses in proper perspective. He recalled a 1981 black-tie dinner at the State Department, his wife’s first Term on the Court. As the O’Connors approached the table to which they were assigned, John introduced himself to a man already seated: “Hello, I’m John O’Connor.” The prompt reply: “Oh, Justice O’Connor, I’m so happy to meet you. I’ve heard so many wonderful things about you.” My husband, Marty Ginsburg, often mistaken for Judge Ginsburg in my early 1980s days on the U.S. Court of Appeals for the D.C. Circuit, has yet to be called Justice Ginsburg, although, he says, he remains hopeful.
Last May, at the celebration of the reopening of the renovated Library of Congress Jefferson Building, a college student came up to my table and asked if I could help with an assignment. She had one question and hoped to compose a paper by asking diverse people to respond. What, she asked, did I think was the largest problem for the next century. My mind raced past privacy concerns in the electronic age, assisted suicide, deadly weapons, outer space. I thought of Justice Thurgood Marshall’s praise of the evolution of the concept, “We, the People,” to include once excluded, ignored, or undervalued people, then of our nation’s motto: E Pluribus Unum, of many, one. The challenge, I responded, is to make and keep our communities places where we can tolerate, even celebrate, our differences, while pulling together for the common good. “Of many, one” is the main challenge, I believe, it is my hope for our country and world.
Two years ago, in a tribute to Justice O’Connor, United States District Judge Kimba Wood, of the Southern District of New York, said that Justice O’Connor’s appointment to the U.S. Supreme Court was a “momentous” event. But Justice O’Connor’s greatest achievement, Judge Wood added, is still to come. It is an achievement I strive, along with many brothers- as well as sisters-in-law, to further advance – to make women’s participation at our Court and in all manner of legal work, indeed in all manner of the world’s work, not “momentous,'” but “commonplace.” As Justice O’Connor said, and as I fully agree, “we’ll all be better off for it.”