How Women Built the Law

When Elena Kagan takes office as solicitor general, she will become the first woman to hold the job on a permanent basis. This may only be the beginning of Kagan’s rise; she is a noted scholar on administrative law, presidential powers, and First Amendment law, and many observers predict that a term as solicitor general could prepare her for an eventual nomination to the Supreme Court.

Kagan is is not the first dean of Harvard Law School to become solicitor general, the last was Erwin Griswold, who took the job in 1967. As dean, Griswold invited women law students, including future Supreme Court Justice Ruth Bader Ginsburg, to an annual reception where he asked them what they thought they were doing occupying seats that could be filled by men. Ginsburg recalls that she told Griswold she hoped law school would help her understand her husband, then a year ahead of her. Another student, ribbing the dean, asked "What better place to catch a man?"

This is just one of the anecdotes that spangle Equal: Women Reshape American Law (W.W. Norton, $35), Yale senior lecturer Fred Strebeigh's comprehensive, deeply absorbing, and occasionally frustrating examination of how women lawyers, judges, and scholars have sought, with mixed success, to shape the law and the legal system to find a place for women within both. (Full disclosure: while he was working on this book, Strebeigh oversaw an independent writing project I completed at Yale. We discussed the book in passing -- mostly in terms of our mutual dislike of deadlines.)

Equal's great strength and its weakness both originate from its scope. Strebeigh's aim is to provide a comprehensive account of two civil rights developments. First, he traces how women built a legal framework that recognized circumstances specific to their experience -- ranging from the temporary disabling effects of pregnancy, to the realities of sexual harassment, to violent, gender-based crimes against women. And second, Strebeigh describes how pioneering lawyers and judges were motivated to build that framework by their own struggles to win admissions to law firms, clerk's positions, and justices' seats. He succeeds almost entirely in the former aim, but the sheer volume of case law he addresses leaves only intermittent occasions for him to accomplish the latter. It's unfortunate that Strebeigh has to make that choice at all. Though he never says anything so cliché as "the personal is political," Equal is at its best when the life stories of his lawyers and judges explain the legal goals they pursued.

Strebeigh comes closest to fully accomplishing his dual aims in the book’s initial section, "Scrutiny," a lively, sharply-written account of Ginsburg's attempts early in her career to convince the Supreme Court that laws that distinguish between people on the basis of sex deserve to be approached with the same level of judicial suspicion -- strict scrutiny -- as laws that distinguish based on race.

Strebeigh introduces us to a woman whose path through law school and ultimately to the Supreme Court was anything but smooth: Ruth Bader Ginsburg. Her story traces the origins of both her radicalism and her pragmatism: she attended college on the savings scraped together by her mother; went to Harvard with her husband where she took the notes him that allowed him to pass his classes while battling testicular cancer; and pursued law academically when firms closed their doors to her -- ultimately becoming one of the first women to teach in an American law school.

The hook thus baited with compelling personal narrative and a lively dose of feminist history, Strebeigh then dives into a dense thicket of cases Ginsburg and her collaborators brought to the Supreme Court: Reed, in 1971, involving a woman who had been denied the right to administer her dead son’s estate; Struck, settled in 1972, involving an Air Force nurse discharged for having children; Moritz, decided in appeals court in 1972 in favor of a man denied a tax deduction for hiring a nurse for his invalid mother on grounds of his gender; and Frontiero, in 1973, where a female Air Force Lieutenant was denied supplemental pay on the grounds that her student husband was not sufficiently dependent on her. The volume of cases sometimes makes it difficult to keep them straight, here and later in the book. But all those cases, Strebeigh argues, allowed Ginsburg to push the Supreme Court not simply to consider whether the laws at issue were irrational, but whether laws rooted in gender differences deserved to be treated with strong suspicion.

When Strebeigh steps back to explain why Ginsburg’s personal experiences led her to push for the Supreme Court to take a skeptical view of laws based in purported gender differences, he makes her frustration and anger glint brightly, illuminating her differences with the American Civil Liberties Union lawyer who claimed to have discovered her as a legal talent and tried to take over Reed from her.

Accounts of the judges who were prepared by personal experience to make groundbreaking decisions in favor of women serve Strebeigh particularly well when he is discussing the parallels between the expansion of legal equality for African-Americans and for women. For example, Spottswood Robinson presented the initial argument in Brown v. Board of Education to the Supreme Court and later became the first black person to sit on any federal court of appeals. Strebeigh argues that Robinson was primed by his experience to issue a decisive decision that sexual harassment is a violation of Title VII of the Civil Rights Act, which forbids employment discrimination. In another example, Judge Constance Baker Motley refused to remove herself from a case because of her civil rights background and ultimately brokered a sex-discrimination settlement against a large New York law firm that interviewed and hired women at lower rates than men before cloistering them in taxes and estates practices with no possibility of advancement, like legal Mrs. Rochesters.

But no portrait in the book is as detailed and powerful as that of Ginsburg. (Strebeigh does treat Catharine MacKinnon at some length, but without discussing some of the more problematic First Amendment issues raised by the anti-pornography work that followed her work on sexual harassment.) That may reflect the fact that Strebeigh had unusual access to Ginsburg herself and her files. But sometimes it seems as if Strebeigh simply had to choose between a wealth of information, picking what’s necessary to make his legal case and leaving out fascinating tangents that might make for a richer picture of women in the legal profession.

For example, he mentions the three women law clerks who told Spottswood Robinson they believed sexual harassment affected women’s work, and the female law clerks in California who refused to help the judge they worked for write a decision in which he ruled that sexual harassment was “a natural sex phenomenon.” But there isn’t room in Equal for an exploration of clerical rebellion as a feminist phenomenon. There is simply too much law to cover.

It’s true that the volume of case law (despite Strebeigh’s language summarizing complex legal issues) may be daunting for casual readers, who might be well advised to read with note-taking materials at hand. But his commitment to comprehensiveness is not simply an example of scholarly overkill. Focusing on case law makes a dispassionate, academic case for the similarities between the women’s and African-American civil rights movements, avoiding charges of emotionalism or insensitivity. But Equal could, at times, use more emotion. I can’t help but wonder if Spottswood Robinson felt some personal satisfaction in ruling that sexual harassment is a civil rights violation, or if Constance Baker Motley thought of doors that had been shut to her when she opened them to other women.

The need to prioritize among cases does achieve one important political goal: firmly restoring Roe v. Wade to its place as one case among many. It is somewhat jarring to read a book on women and the law that treats Roe as an explanatory tool for parsing the differences between privacy and equality law rather than as a main case study, but Strebeigh makes a convincing case that Roe should not overshadow the entirety of the canon of law affecting women.

Roe has assumed its outsized significance in modern politics and the women’s movement in part because it remains hotly debated, not because it is the single decision that produced the greatest net equality for women. But just because women now have the completely uncontested right to practice law, or to receive disability benefits when they take time off from work to give birth or recover from an abortion, or to go to work without wondering whether their employer will feel free to grope them at their desks, does not mean the struggle to win those rights was any less significant than the fight to win the right to an abortion. That reminder of Roe’s place in a pantheon is a bracing—and worrisome—reminder of the magnitude and number of challenges women faced—and still face— as they struggle for legal equality.

Nor is Strebeigh afraid to argue that the legal system is only one component of a larger movement for women’s equality. Equal’s final section provides a fascinating portrait of then-Sen. Joseph Biden as a legislator and advocate for the Violence Against Women Act. As one of the activists who worked on the bill recalls:

“The last fun for grassroots women … was winning the vote in 1920. … Winning cases like Reed and Wiesenfeld was fun mostly for Ruth Ginsburg and her law students….You know why women are so excited about [VAWA]?...It’s the first time since the equal rights amendment that they have the chance to work for a civil rights law that they perceive as their own.”

It’s an important reminder that the courts are an imperfect venue, and not only because they are not an ideal forum for social mobilization. After all, as Strebeigh explains, Ruth Bader Ginsburg stopped pursuing her vision of strict scrutiny for gender-based laws while still a lawyer, deciding that the risk of creating bad case law was too great. The Supreme Court in 2000 struck down the provisions of VAWA that allowed women to sue their attackers in federal court. And the clash between pro-choice and anti-abortion protestors now seems part and parcel of the ritual of a Supreme Court term.

Like its subject matter, Equal is an imperfect enterprise, due in part to the scope of its ambitions. But Strebeigh succeeds in providing readers with a legal education in equality that will be equally at home in now-ubiquitous classes on women and the law and on organizers’ bookshelves. And if Strebeigh leaves readers wanting more from his book and from the legal system, he is doing so precisely at a time when, with Elana Kagan taking over as America’s top domestic lawyer, and Hillary Clinton and Susan Rice set to tackle international law issues at the State Department and United Nations, they may be best poised to get it.